ADMINISTRATIVE LAW

CHAPTER I
General Provisions
Administrative Law that branch of public law which fixes the
organization and determines the competence of administrative
authorities and indicates to the individual remedies for the violation
of his rights.
Kinds of Admin Law
1. Statutes setting up administrative agencies;
2. Body of doctrines and decisions dealing with the creation,
operation and effect of determinations and regulations of such
administrative authorities;
3. Rules, regulations, or orders of such administrative authorities in
pursuance of the purpose for which administrative authorities
were created or endowed;
4. Determinations, decisions, and orders of such administrative
authorities in the settlement of controversies arising in their
particular fields.
Administration is defined in two different senses: as a function, is
the execution, in non-judicial matters, of the law or will of the State
as expressed by competent authority; and as an organization, is that
group of or aggregate of persons in whose hands the reins of
government are for the time being.

Administrative Body or Agency organ of government, other than

a court and other than a legislature, which affects the rights of
private parties either through adjudication or rule-making.

Creation:
They are created either by a) Constitutional
provision; b) Legislative enactment; or c) Authority of law.

Criterion: A body or agency is administrative where its

functions is primarily regulatory even if it conducts hearings
and determines controversies to carry out its regulatory duty.
On its rule-making authority, it is administrative when it does
not have discretion to determine what laws shall be but
merely prescribes details for the enforcement of the law.

Types of Administrative Body or Agency

1. The function is to offer some gratuity, grant or special
privilege (Bureau of Lands);
2. The function is to seek to carry on certain of the actual
business of the government (BIR);
3. The function is to perform some business service for the
public (MWSS)
4. The function is to seek to regulate business affected with
public interest (LTFRB)
5. The function is to seek under the police power to regulate
private business and individuals (SEC)
6. The function is to seek to adjust individual controversies
because of a strong social policy involved (ECC)

7. The function is to make the government a private party

(GSIS)
Govt. of the Republic of the Philippines refers to the corporate
governmental entity through which the functions of government are
exercised throughout the Philippines.
Agency refers to any of the various units of government, including
a department, bureau, office, instrumentality, or government-owned
or controlled corporation, or a local government or a distinct unit
therein.
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, and enjoying
operational autonomy, usually through a charter. This includes
regulatory agencies, institutes and government-owned or controlled
corporations.
Chartered Institutions refers to any agency organized or operated
under a specific charter and vested by law with functions relating to
specific constitutional policies or objectives. This includes state
universities and colleges, and the monetary authority of the state.
Public Office refers to the right, authority, and duty, created and
conferred by law, by which, for a given period either fixed by law or
enduring at the pleasure of the appointing power, an individual is

invested with some portion of the sovereign functions of the

government, to be exercised by that individual for the benefit of the
public.

Two Concepts of Public Office

1. As a functional unit of government, such as department or
bureau;
2. As a position held or occupied by individual persons,
whose functions are defined by law or regulation.

Reorganization is the process or means used by the legislature to

reorganize or abolish offices, which it may do so by law directly or
indirectly by authorizing an executive department or agency to
reorganize its office.
Reasons for Creation of Administrative Agencies
1. To unclog court dockets.
2. To meet the growing complexities of modern society.
3. To help in the regulation of ramified activities of a developing
country.
4. To entrust to specialized agencies in specified fields with their
special knowledge, experience, and capability the task o dealing
with problems thereof as they have the experience, expertise and
power to prove solutions thereto.
CHAPTER II
Powers of Administrative Bodies

The powers of executive or administrative agencies or officials are

either express and implied, or discretionary and ministerial, or
directory and mandatory.
1. Express
2. Implied
3. Discretionary one which is conferred upon by law which
imposes duty upon a public officer, and gives him the right to
decide how or when the duty shall be performed.
4. Ministerial one which is so clear and specific as to leave no
room for the exercise of discretion in its performance.
5. Directory a statute which merely operates to confer discretion
upon a person, namely, to act according to the dictates of his
own judgment and conscience and not controlled by the
judgment and conscience of others.
6. Mandatory statute which commands either positively that
something be done, or performed in a particular way, or
negatively that something be not done, leaving the person
concerned no choice on the matter except to obey.
The two most important powers of administrative officers are the
quasi-legislative and the quasi-judicial powers.
Errors in Exercise of Powers
The state authorizes only legal acts by its officers. Unauthorized
acts of government officials are not acts of the state, and an
action against the officials by one whose rights have been

invaded or violated by such acts, for the protection of his rights,

not a suit against the state within the rule of immunity of the
state from suit.
Thus, an officer sued in his private or personal capacity for acts
done beyond the scope of his authority or for unlawful or
tortuous acts while discharging official function, cannot invoke
the doctrine of state immunity from suit. For the doctrine of
state immunity cannot be used as an instrument for perpetrating
an injustice.
It is familiar rule that erroneous application and enforcement of
the law by public officers do not block subsequent correct
application of the statute and that the government is never
estopped by mistake or error on the part of its agents. In other
words, the government can subsequently correct the mistake or
the erroneous application of the law.

Presumption of Regularity
Government officials are presumed to perform their functions
with regularity and strong evidence is necessary to rebut this
presumption. Under the law of public officers, acts done in the
performance of official duties are protected by the presumption of
good faith, and even mistakes committed by such public officers
are not actionable as long as it is not shown that they were
motivated by malice or gross negligence amounting to bad faith.
CHAPTER III
Power of Control, Supervision and Investigation

A. President as Chief Executive and Administrative Officer

Sec. 17, Art. VII of the 1987 Constitution provides that the
President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully
executed.

Doctrine of Qualified Political Agency under this doctrine, all

executive and administrative organizations are adjuncts of the
executive departments, bureaus and officers.
Control the power of an officer to alter, modify or nullify or set
aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former of that of the
latter.
Supervision overseeing or the power or authority of an officer to
see that their subordinate officers perform their duties.
Review the power or authority of an officer to reconsider or reexamine to determine whether it is necessary to correct the acts of
the subordinate.

Limitations on the Presidents Control Power

General Rule: The power of control of the President over

executive departments, bureaus or offices, implies no more than
the authority to assume directly the functions thereof, to
interfere in the exercise of discretion by its officials, or to alter,
modify or set aside what a subordinate officials have done and to
substitute his judgment for that of the latter.
Exceptions: Generally speaking, the power of control does not
include the following:
1. The abolition or creation of an executive office;
2. The suspension or removal of career executive officials or
employees without due process of law; and
3. The setting aside, modification, or supplanting of decisions of
quasi-judicial agencies, including that of the Office of the
President, on contested cases that have become final
pursuant to law or to rules and regulations promulgated to
implement the law.
CHAPTER IV
Quasi-Legislative Power

Legislative Power is the power to make, alter and repeal laws. It

is vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives.
Quasi-Legislative Power the exercise of delegated legislative power
involving discretion as to what the law shall be, but merely the
authority to fix the details in the execution or enforcement of a
policy set out in the law itself.

The Doctrine of Separation of Powers prohibits the delegation

of purely legislative power.
However, the doctrine is not
absolutely.
The Constitution itself makes the delegation of
legislative power to the President, the Supreme Court, and the
local government units.

A. DELEGATION OF LEGISLATIVE POWER TO THE PRESIDENT

Sec. 23 (2), Art. VI In times of war or other national

emergency, the Congress may, by law authorize the President, for
a limited period and subject to such restrictions as it may
prescribe, to exercise powers necessary and proper to carry out a
declared national policy. Unless sooner withdrawn by resolution
of the Congress, such powers shall cease upon the next
adjournment thereof.
Sec. 28 (2), Art. VI The Congress may, by law, authorize the
President to fix within specified limits, and subject to such
limitations and restrictions as it may impose, tariff rates, import
and export quotas, tonnage and wharfage dues, and other duties
or imposts within the framework of the national development
program of the Government.
Under the Administrative Code of 1987, Congress also
delegates to the President certain ordinance powers in the form
of presidential issuances.

Presidential Issuances are those which the President issues in

the exercise of his ordinance power. They include:

1. Executive Orders acts of the President providing for rules of a

general or permanent character in implementation or execution
of constitutional or statutory powers.
2. Administrative Orders acts of the President which relate to
particular aspects of governmental operations in pursuance of
his duties as administrative head.
3. Proclamations acts of the President fixing a date or declaring
a statute or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is
made to depend.
4. Memorandum Orders acts of the President on matters of
administrative detail or of subordinate or temporary interest
which only concern a particular officer or office of the
Government.
5. Memorandum Circulars acts of the President on matters
relating to internal administration which the President desires to
bring to the attention of all or some of the departments, agencies,
bureaus, or offices of the Government for information or
compliance.
6. General or Specific Orders acts and commands of the
President in his capacity as Commander-in-Chief of the AFP.

Rules and Regulations issued by administrative authorities

pursuant to the powers delegated to them have the force and
effect of law, they are binding on all persons subject to them,
and the courts will take judicial notice of them.

Both Letters of Instruction and Executive Orders are

presidential issuances, one may repeal or otherwise alter,
modify or amend the other, depending on which comes later.
It may be stressed that the function of promulgating rules and
regulations may be legitimately exercised only for the purpose
of carrying out the provisions of the law into effect. Thus,
administrative regulations cannot extend the law or amend a
legislative enactment, for settled is the rule that
administrative regulations must be in harmony with the
provisions of the law. Indeed, administrative issuances must
not override, but must remain consistent with the law they
seek to apply and implement. They are intended to carry out,
not to supplant nor to modify the law.

Kinds of Administrative Rules or Regulations

1. Supplementary or Detailed legislation rules and regulations
to fix the details in the execution and enforcement of a policy set
out in the law (The Labor Code)
2. Interpretative legislation rules and regulations construing or
interpreting the provisions of a statute to be enforced and they
are binding on all concerned until they are changed (BIR
Circulars, CB Circulars, etc.)
3. Contingent legislation rules and regulations made by an
administrative authority on the existence of certain facts or
things upon which the enforcement of the law depends.
Requisites for Validity of Administrative Rules and Regulations

1.
2.
3.
4.

It
It
It
It

must
must
must
must

be
be
be
be

issued under authority of law.

within the scope and purview of the law.
reasonable
published in full.

B. DELEGATION OF LEGISLATIVE POWER TO THE SUPREME

COURT

Sec. 5 (5), Art. VIII Power to promulgate rules concerning

pleadings, practice and procedures in all courts, the admission
to the practice of law, the Integrated Bar, and legal assistance to
the underprivileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall
be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights.
Rules of
procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court.

C. DELEGATION
OF
GOVERNMENT

LEGISLATIVE

POWER

TO

LOCAL

Sec. 5, Art. X The power to create its own sources of revenues

and to levy taxes, fees, and charges subject to such guidelines
and limitations as the Congress may provide, consistent with the
basic policy of local autonomy.

Sec. 48 of the Local Government Code of 1991 Local

legislative power shall be exercised by the sangguniang
panlalawigan for the province; the sangguniang panlungsod for
the city; the sangguniang bayan for the municipality; and the
sangguniang barangay for the barangay.

Sangguniang Barangay
May pass an ordinance affecting a barangay
Subject to review by the Sangguniang Bayan or Sangguniang
Panlungsod, as the case maybe.
It shall take action within 30 days from submission
No action within 30 days, the ordinance is presumed consistent
with law and shall be deemed approved.
Ordinance finds inconsistent with law, return the same to
Sangguniang Barangay for amendment or modification.
Sangguniang Bayan
Power to enact municipal ordinance
Affirmative vote of a majority of the members present and voting,
there being a quorum shall be necessary for the passage
It is submitted to the municipal mayor, who within 10 days from
receipt thereof shall return it either with his approval or veto.
If not returned with 10 days, it shall be deemed approved
Two-thirds of all its members may override the veto of the mayor,
in which case the ordinance shall become effective for all legal
intents and purposes.
The approved ordinance is subject to review by Sangguniang
Panlalawigan within 30 days from receipt thereof.

No action within 30 days after its submission, it shall be

presumed consistent with law and therefore valid.
Sangguniang Panlungsod
Power to pass city ordinance
The affirmative vote of a majority of the members present and
there being a quorum shall be necessary for the passage
The approved ordinance shall be submitted to the city mayor who
within 10 days from receipt thereof, shall return it with his
approval or veto.
If not returned within 10 days, it shall be deemed approved
It may repass a vetoed ordinance by two-thirds vote of all the
members thereof.
If the city is a component city, the approved ordinance is
submitted to the Sangguniang Panlalawigan for review which
shall take action therein within 30 days, otherwise it will be
deemed valid.
Sangguniang Panlalawigan
Enact ordinances affecting the province
Affirmative vote of a majority of the members present, there
being a quorum shall be necessary for the passage
The ordinance is forwarded to the governor, who within 15 days
from receipt thereof, shall return it with his approval or veto
If not returned within 15 days, it shall be deemed approved.
A vetoed ordinance may be repassed by the Sangguniang
Panlalawigan by a two-thirds vote of all its members.

A. What cannot be delegated

The doctrine of separation of powers prohibits the delegation of that
which is purely legislative in nature. This consists of:
1. The power to make, alter or repeal the law;
2. The power to determine legislative policies and objectives to be
achieved;
3. The power to formulate and promulgate a defined and binding
rule of conduct.
B. What may be delegated
It can delegate the discretion as to:
1. How the law shall be enforced;
2. To issue rules to fill in details;
3. To ascertain facts on which the law will operate;
4. To exercise police power; and
5. To fix rates
To be valid, however, the delegation has to pass the completeness
and sufficiency of standard tests.
Tests to Determine Validity of Delegation
1. Completeness test the law must be complete in all its items
and conditions when it leaves the legislature such that when it
reaches the delegate, the only thing he will have to do is enforce
it.
2. Sufficient Standard test there must be adequate guidelines
or limitations in the law to map out the boundaries of the
delegates authority and prevent the delegation from running riot.

Prohibition against Re-Delegation; Exceptions

One restriction on the delegation of legislative power is the
Doctrine of Potestas Delegata Non Delegari Protest. This
doctrine is based on ethical principle that such a delegated
power constitutes not only a right but a duty to be performed by
the delegate through the instrumentality of his own judgment
and not through the intervening mind of another.
CHAPTER V
Quasi-Judicial Power
Quasi-Judicial Power the power or authority of administrative
officers or agencies to receive evidence, ascertain the facts
therefrom, determine what the law is and the legal rights of the
parties, and on the basis of all these decides the controversy and
renders judgment thereon.
Quasi-Judicial Body an organ of the government other than a
court and other than a legislature, which exercises adjudicative
power affecting the rights of private persons.
Extent of Jurisdiction
The rule is that an administrative body to which quasi-judicial
power has been delegated is a tribunal of limited jurisdiction and
as such, it could wield only such powers as are specifically
granted to it its enabling statute. Its jurisdiction is interpreted in
strictissimi juris. This rule is based on settled principle that an

administrative agency or officer can exercise only such powers as

are expressly granted as well as those which are necessarily
implied therefrom.

law may provide that a determination made by an administrative

agency shall be final and irreviewable. In such a case, there is no
violation of due process.

Requisites of Administrative Due Process

1. Right to a hearing;
2. Tribunal must consider evidence presented;
3. Decision must have something to support itself;
4. Evidence must be substantial;
5. Decision must be based on the evidence adduced at the hearing,
or at least contained in the record and disclosed to the parties;
6. The Board or its judges must act on its or their independent
consideration of the facts and the law of the case;
7. Decision must be rendered in such a manner that the parties in
the controversy can know the various issues involved and the
reasons for the decision thereof.

Questions which may be the subject of Judicial Review

1. Questions of law
2. Question of fact
3. Mixed questions of law and fact.Brandeis Doctrine of Assimilation
of Facts where what purports to be a finding upon a question of
fact is so involved with and dependent upon a question of law as to
be in substance and effect a decision on the latter, the Court will, in
order to decide the legal question, examine the entire record
including the evidence if necessary.

Administrative Determinations where Notice and Hearing are

Not Necessary for Due Process
1. Grant of provisional authority for increased rates
2. Summary proceedings of distraint and levy
3. Cancellation of passport where no abuse of discretion is
committed by the Secretary
4. Summary abatement of nuisance per se.

Guidelines for the exercise of Judicial Review

1. Findings of fact are respected as long as they are supported by
substantial evidence.
2. It is not for the reviewing court to weigh the conflicting evidence,
determine the credibility of witnesses, or otherwise substitute its
judgment for that of the administrative agency on the sufficiency
of evidence.
3. The administrative decision in matters within the executive
jurisdiction can only be set aside on proof of grave abuse of
discretion, fraud, collusion or error of law.

Judicial Review of Administrative Decisions

Rule: Except when the Constitution requires or allows it, judicial
review may be granted or withheld as Congress chooses. Thus, the

CHAPTER VI
Doctrines of Primary Jurisdiction and Exhaustion of
Administrative Remedies

Doctrine of Primary Jurisdiction applies where the claim is

originally cognizable in the court and its enforcement requires
resolution of issues which, under a regulatory scheme, has been
placed within the competence of an administrative agency, the
judicial process is suspended pending referral of such claim to the
administrative agency for its resolution.

The court cannot or will not entertain a controversy involving

question within the jurisdiction of an administrative tribunal
prior to the decision of that question by the administrative
tribunal: (1) where the question demands administrative
determination requiring special knowledge, experience, and
services of the administrative tribunal; (2) where the question
requires determination of technical and intricate issues of facts;
(3) where uniformity of ruling is essential to comply with the
purposes of the regulatory statute administered.

Doctrine of Exhaustion of Administrative Remedies as a

general rule, recourse through court action cannot prosper until all
the remedies have been exhausted at the administrative level.

The doctrine calls for resort first to the appropriate

administrative authorities in the resolution of a controversy
falling under their jurisdiction before the same may be elevated
to the courts of justice for review.

Effect of failure to exhaust administrative remedies - The

failure to observe the doctrine does not affect the jurisdiction of
the court. The only effect of non-compliance with the rule is that
it will deprive the complainant of a cause of action, which is a
ground for a motion to dismiss. However, if not invoked at the
proper time (must be raised in the motion to dismiss or in the
answer to the complaint), this ground is deemed waived and the
court can take cognizance of the case and try it.

Exceptions to the Doctrine

General Rule: 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.

Exceptions:
1. Where public interest requires immediate court resolution;
2. Where administrative act is a nullity;
3. Where administrative remedy is not adequate;
4. Where judicial relief is required to prevent violence;
5. Where agency acted with no jurisdiction;
6. Where there is yet no administrative order;
7. Where there estoppel;
8. Where there is urgency or irreparable damage;
9. Where qualified political agency doctrine applies;
10.
Where the issue is purely legal;
11.
Where administrative remedy is permissive;
12.
Where doctrine will result in nullification of claim;

13.
14.
15.

Primary Jurisdiction
The

claim

Remedies
originally The claim is cognizable in the

is

referral

of

certain until the administrative process

issues to the administrative has run its course and the

agency for its resolution
agency action is ripe for review
Applies in cases filed with the Invoked
in
petitions
for
trial court

CHAPTER I
Nature and Elements of Public Office

Exhaustion of Administrative

cognizable in the courts

administrative agency alone
Judicial process is suspended Judicial interference is withheld
pending

LAW ON PUBLIC OFFICERS

In quo warranto cases;

Where there is no law requiring remedies; and
Where agency has no jurisdiction.

Public Office refers to the right, authority and duty, created and
conferred by law, by which, for a given period either fixed by law or
enduring at the pleasure of the creating power, an individual is
invested with some portion of the sovereign functions of
government, to be exercised by that individual for the benefit of the
public.

Elements:
a) Created by law or by authority of law;
b) Possess delegation of a portion of the sovereign powers of
the government to be exercised for the benefit of the public;
c) Powers conferred and duties imposed must be defined,
directly or implied, by the legislature or by legislative
authority;
d) Duties must be performed independently and without the
control of a superior power other than the law;
e) Must have permanence or continuity.

Creation: Public offices are created: a) by the Constitution; b)

by valid statutory enactments, and c) by authority of law.

certiorari filed with the Court of

Appeals or in few instances in
the trial court

Under the 1987 Administrative Code:

Public Officer refers to a person whose duties, not being of a

clerical or manual nature, involves the exercise of discretion in
the performance of the functions of the government. It includes
ay government employee, agent or body having authority to do
the act or exercise that function.
Public Employees includes any person in the service of the
government or any of its agencies, divisions, subdivisions or
instrumentalities.

Under Art. 203 of the Revised Penal Code:

Public Officers refers to any person who, by direct provision of
the law, popular election, or appointment by competent authority,
shall take part in the performance of public functions in the
Government of the Philippine Islands, or shall perform in said
Government or in any of its branches public duties as an
employee, agent, or subordinate official, of any rank or class.
Under the Anti-Graft and Corrupt Practices Act:
Public Officer includes elective and appointive official and
employees, permanent or temporary, whether in the classified or
unclassified or exempt service receiving compensation, even
nominal, from the government.
Government includes the nations, the local governments, the
government-owned and government-controlled corporations, and
all other instrumentalities or agencies of the Republic of the
Philippines and their branches.

Under Section 3 of R.A. No. 6713 otherwise known as the Code of

Conduct and Ethical Standards for Public Officials:
Public Officials includes elective and appointive officials and
employees, permanent or temporary, whether in the career or
non-career service, including military and police personnel,
whether or not they receive compensation, regardless of amount.
Under R.A. 7080, otherwise known as An Act Defining and
Penalizing the Crime of Plunder:
Public Officer means any person holding any public office in
the Government of the Republic of the Philippines by virtue of an
appointment, election or contract.
CHAPTER II
APPOINTMENT OF PUBLIC OFFICERS
Qualification for Office the endowment or accomplishment that
fits for an office; having the legal requisites, endowed with qualities
fit or suitable for the purpose.
Qualifications of Appointive Officers
Generally, to entitle a public officer to hold a public office, he
must possess all the qualifications and none of the
disqualifications prescribed by law for the position not only at the
time of his election or appointment but also during his
incumbency.
Power of Congress to Prescribe Qualifications

Except as the Constitution provides otherwise, Congress has the

power to prescribe qualifications for appointive or elective
positions and define who are disqualified therefrom. However,
since the privilege of holding an office is a valuable one, laws
prescribing qualifications and disqualifications for office should
be liberally construed in favour of eligibility.

When Eligibility Must Exist to Qualify for Office

The question of when eligibility of persons seeking public office
must exist to qualify him for the position is a matter of legislative
intent. The Constitution or the statute usually fixes the time
when the qualifications must be possessed by the appointee or
elective candidate for office, either expressly or impliedly.
Qualifications for public office are mandatory. Accordingly, the
subsequent acquisition of the qualifications by the officer will not
validate the void appointment. Another appointment, at which
he possesses all the qualifications and none of the
disqualifications, will be necessary to qualify him for the office.
The qualifications for public office are continuing requirements
and must be possessed not only at the time of appointment or
election or assumption of office but also during the officers
entire term; once any of the required qualifications is lost, his
title to the office is deemed forfeited.
APPOINTMENT one of the means by which a person may claim a
right to a public office. It means the selection by the property
authority vested with power of an individual who is to exercise the
functions of a given office.

DESIGNATION refers to the assignment of a public officer to

perform certain functions different from those of his position to
which he has been appointed.
Presidents Appointing Power
The general rule is that the appointing power is the exclusive
prerogative of the President, upon which no limitations may be
imposed by Congress, except those resulting from the need of
securing the concurrence of the Commission on Appointments
and from the exercise of the limited power to prescribe the
qualifications or disqualifications to a given appointive office.
Except as he may be restricted by the Constitution, the President
shall appoint all other officers of the government whose
appointments are not otherwise provided by law, and those
whom he may be authorized by law to appoint.
Where the law is silent as to who is the appointing authority, it is
understood to be the President of the Philippines.
The President shall appoint the following:
1. Heads of the executive departments; ambassadors, other public
ministers and consuls; officers of the armed forces from the rank
of colonel or naval captain; and other officers whose
appointments are vested in this Constitution, such as the
Chairman and Members of the Commission on Elections, Civil
Service Commission, the Commission on Audit, and Sectoral
Representatives. Those appointments require the consent of the
Commission on Appointments;

2. All other officers of the government whose appointments are not

otherwise provided by law;
3. Those whom the President may be authorized by law to appoint;
and
4. Officers of lower in rank whose appointments the Congress may
by law vest in the President alone.
Appointments Subject to Confirmation by Commission on
Appointments
Heads of the executive departments; ambassadors, other public
ministers and consuls; officers of the armed forces from the rank
of colonel or naval captain; and other officers whose
appointments are vested in this Constitution, such as the
Chairman and Members of the Commission on Elections, Civil
Service Commission, the Commission on Audit, and Sectoral
Representatives.
AD INTERIM APPOINTMENTS appointments made by the
President during the recess of Congress of officials whose
confirmation by the Commission on Appointments is required by the
Constitution. These ad interim appointments are permanent: (a)
until disapproval by the Commission on Appointment or (b) until the
next adjournment of the Congress.

An officer whose ad interim appointment has been terminated by

the adjournment of Congress without the Commission on
Appointment acting thereon can be given another ad interim
appointment, without violating any constitutional provision

prohibiting an officer whose term has expired from being reappointed.

However, an ad interim appointee, who has been rejected by the
Commission on Appointments, cannot be re-appointed to the
same position.

Limitations on the Presidents Power to Appoint

While the appointing power is basically an executive prerogative, the
Constitution contains provisions restricting or limiting such
appointing power.
Apart from the power of review of the
Commissions on Appointments over appointments requiring the
latters confirmation, the other limitations on the Presidents
appointing power are the following:
1. The limitations provided in Secs. 14 and 15, Art. VII of the
Constitution;
2. The President can only appoint members of the SC and judges
of lower courts from among the list of at least three members
for each position prepared and recommended by the JBC;
3. The President cannot appoint officials and employees of the
judiciary, as the power to appoint belongs to the SC;
4. The President cannot appoint any person who lost in any
election within one year after such election to any office in the
government or any government-owned controlled corporations
or any of their subsidiaries;
5. The President can only appoint the Ombudsman and
Deputies from among the list of at least six nominees prepares
and recommended by the JBC;

6. The President cannot appoint official and employees of the

Office of the Ombudsman as the power is vested to the
Ombudsman;
7. The President cannot appoint officers and employees of the
Commission on Human Rights;
8. Sec, 7 of Art. IX-B of the Constitution;
9. Sec. 13, Art. VII of the Constitution.
CIVIL SERVICE COMMISSION the central personnel agency of
the government, which is composed of a Chairman and two
Commissioners, appointed by the President with the consent of the
Commission on Appointments, for a term of seven years without
reappointment.
Purpose: To insure and promote the general mandate requiring
appointments only according to merit and fitness, and to provide
within the public service a progressive system of personal
administration to insure the maintenance of an honest and efficient
progressive and courteous civil service in the Philippines.
Classification of Employment in Government according to Civil
Service
1. Career Service
a. Entrance based on merit and fitness, to be determined as far
as practicable by competitive examination, or based on highly
technical qualifications;
b. Opportunity for advancement to higher career positions; and
c. Security of tenure.

2. Non-Career Service
a. Entrance on bases other than those of the usual test of merit
and fitness utilized for the career service; and
b. Tenure which is limited to a period specified by law, or which
is coterminous with that of the appointing authority or
subject to his pleasures, or which is limited to the duration of
a particular project for which purposes employment was
made.
Tri-Level Positions in the Career Service
1. First Level includes clerical, trades, crafts and custodial service
positions involving non-professional or sub-professional work in
a non-supervisory or supervisory capacity requiring less than
four years of collegiate studies;
2. Second Level includes professional, technical and scientific
positions involving professional, technical or scientific work in a
non-supervisory or supervisory capacity requiring at least four
years of college work up to division chief level; and
3. Third Level includes positions in the career executive service
consisting of undersecretary, assistant secretary, bureau director,
assistant bureau director, regional director, assistant regional
director, chief of department service and other officers of
equivalent rank as may be identified by the Career Executive
Service Board, all of which are appointed by the President.
Kinds of Appointments
1. Permanent Status shall be issued to a person who meets all
the requirements for the position to which he is being appointed,

including the appropriate eligibility prescribed, in accordance

with the provisions of law, rules and standards promulgated in
pursuance thereof.
2. Temporary Appointment in the absence of the appropriate
eligibles and it becomes necessary in the public interest to fill a
vacancy, a temporary appointment shall be issued to a person
who meets all the requirements for the position to which he is
being appointed except the appropriate civil service eligibility.
However, such temporary appointment shall not exceed twelve
months, but the appointee may be replaced sooner if a qualified
civil service eligible becomes available.
Requisites of Appointment
1. The appointing authority is vested with the power to make the
appointment at the time the appointment was made;
2. The appointee possesses all the qualifications, including the
appropriate civil service eligibility, and none of the
disqualifications prescribed by law for the position;
3. The position is vacant;
4. The appointment has been approved by the Civil Service
Commission;
5. The appointee must accept the appointment by taking the oath
and entering the discharge of his office.
Opposition to Appointment
Any person who feels aggrieved by the appointment of a person
may file a protest against the appointment. Protest is a mode of
action that may be availed of by the aggrieved party to contest

the appointment of another to a particular position. The protest

must, however, be for cause which is based on the following
grounds:
1. That the appointee is not qualified;
2. That the appointee is not the next-in-rank; and
3. In the case of appointment by transfer, reinstatement or by
original appointment, that the protestant is not satisfied with
the written special reason or reasons given by the appointing
authority.
Revocation or Recall of Appointment
The general rule is that an appointment once made is irrevocable
and not subject to reconsideration. However, the Civil Service
Commission has the power to recall, on its own initiative, an
appointment initially approved on any of the following grounds:
1. Non compliance with the procedures/criteria provided in the
agencys merit promotion plan;
2. Failure to pass through the agencys selection/promotion
board;
3. Violation of the existing collective agreement between
management and employees relative to promotion; or
4. Violation of other existing civil service law, rules and
regulations.
TERM OF OFFICE is a period fixed by the Constitution or by law,
during which an officer or employee claims to hold office as of right.

TENURE OF OFFICE represents the period during which the

incumbent actually holds the office, which may be shorter than the
term.
HOLD-OVER CONCEPT as a general rule, in the absence of an
express or implied constitutional or statutory provision to the
contrary, an office is entitled to stay in office until his successor is
elected or appointed and has qualified.
REINSTATEMENT is technically issuance of a new appointment
which is essentially discretionary, to be performed by the officer in
which it is vested according to his best lights, the only condition
being that the appointee should possess the qualifications required
by law.
NEPOTISM means favouritism in the appointment in the public
service in favour of a relative within the third degree either of
consanguinity or affinity by the appointing or recommending
authority. It is prohibited.
The following are exempted from the operation of the rules on
nepotism:
1. Persons employed in a confidential capacity;
2. Teachers;
3. Members of the AFP;
4. The case of a member of any family who, after his or her
appointment to any position in an office or bureau, contracts
marriage with someone in the same office or bureau, in which

event the employment or retention therein of both husband

and wife may be allowed.
5. Those appointed in government owned or controlled
corporations which are organized under corporation law.
CHAPTER III
DE FACTO OFFICER
DE FACTO OFFICER one who assumed officer under a color of a
known appointment or election which is void because the officer was
not eligible or because there was a want of power in the electing
body, or by reasons of some defect or irregularity in its exercise,
such ineligibility, want of power, or defect being unknown to the
public.
DE JURE OFFICER one who is in all respects legally appointed or
elected and qualified to exercise the office.
USURPER one who acts without appointment or any color of right
or title to the office.
Elements of De Facto Officer
1. There must be a de jure office;
2. The must be color of right or authority;
3. There must be a general acquiescence by the public or a
recognition by the public who deals with him of his authority as
holder of the position.

Validity of Acts of a De Facto Officer

Acts of de facto officer are valid insofar as third parties are
concerned. His official acts cannot be attacked collaterally by a
writ of prohibition or by a suit to enjoin the execution of the
decision.
It is well-established principle that official acts of a de facto
officer as just as valid for all purposes as those of a de jure
officer, so far as the public or third persons who are interested
therein are concerned. The principle is one founded on public
police and convenience, for the right of one claiming title or
interest under or through the proceedings of an officer having an
apparent authority to act would be safe, if it were necessary in
every case to examine the legality of the title of such officer up to
its original source, and the title or interest of such person were
held to be invalidated by some accidental defect or flaw in the
appointment, election or qualification of such officer, or in right
of those from whom his appointment or election emanated.
Compensation
A de facto officer who, in good faith, has possession of the office
under a color of validity and had discharged the duties
pertaining thereto is legally entitled to the emoluments of the
office.
In Civil Liberties Union vs. Executive Secretary, the SC declared
unconstitutional E.O. No. 284, which allowed members of the
Cabinet, their deputies and assistant to hold multiple positions,
and ordered the officials concerned to immediately relinquish
their other offices. However, the High Tribunal ruled that these

official were entitled to keep the allowances, per diems or other

emoluments received by them because they could be considered
as de facto officers.
Proceeding to Try Title of De Facto Officer
The title of a de facto officer cannot be assailed collaterally. It
may not be contested except directly by quo warranto
proceedings. Neither may the validity of his acts be questioned
upon the ground that he is merely a de facto officer, the reason
being that it would be an indirect inquiry into the title to the
office, and the acts of a de facto officer, if within the competence
o his office, are valid, insofar as the public is concerned.
It is well settled that the title to the office of a public officer,
whether de jure or de factor, can only be determined in a
proceeding in the nature of quo warranto and cannot be tested
by prohibition. Prohibition does not lie to determine the title of a
de factor officer.
CHAPTER IV
COMPENSATION, BENEFITS AND PRIVILEGES
SALARY refers to pay or compensation given as the base pay of
the position or rank as fixed by law or regulations, excluding all
bonuses, per diems, allowances and overtime pay.
PER DIEM a daily allowance given for each day to an officer or
employee of the government that is away from his home base.

HONORARIUM as something given not as a matter of obligation

but in appreciation for service rendered, a voluntary donation in
consideration of services which admit of no compensation in money.

Right to Compensation
The right of an officer or employee to compensation and
allowances which attach to an office or employment is a statutory
right. He is only entitled to so much as the law grants him. The
law should, however, be implemented in a more reasonable,
humane, and realistic manner.
Requirements for Payment of Salaries and Wages
1. Existence of legally created position with fixed compensation
or emolument attached to the position;
2. Issuance of a valid appointment;
3. Rendition of service being paid; and
4. Payment to the right person.
Government Policy on Compensation
1. All government personnel shall be paid just and equitable
wages;
2. Basic compensation for all personnel in the government and
GOCCs and financial institutions shall generally be
comparable with those in the private sector doing comparable
work and must be in accordance with prevailing laws on
minimum wage;

3. The total compensation provided for government personnel

must be maintained at a reasonable level in proportion to the
national budget; and
4. A review of government compensation rates, taking into
account possible erosion in purchasing power due to inflation
and other factors shall be conducted periodically.
Position Classifications for Salary Grade Purposes
1. Professional Supervisory these positions require intense and
thorough knowledge of a specialized field usually acquired
from completion of a bachelors degree or higher decree
courses. These positions are given salary grade 9 to 33.
2. Professional Non-Supervisory Category these positions
require thorough knowledge in the field of arts and sciences or
learning acquired through completion of at least four (4) years
of college studies. These positions are assigned salary grade 8
to 30.
3. Sub-professional Supervisory these positions require
knowledge acquired form secondary or vocational education or
completion of up to two (2) years of college education. These
positions are assigned salary grade 4 to 18.
4. Sub-professional Non-Supervisory these positions usually
require skills acquired through training and experience or
completion of elementary education, secondary or vocational
education or completion of up to two (2) years of college
education. These positions are assigned salary grade 1 to 10.

TERMINAL LEAVE PAY is the cash value of the retirees

accumulated leave credits and is applied for by an officer or
employee who has already severed his connection with his employer
and who is no longer working. It is an accumulation of credits
intended for old age or separation from the service.

P10,000.00, or both such imprisonment and fine, in the

discretion of the court, can it be provided in the implementing
rules and regulations promulgated by the Department Secretary
that their violation will also be subject to the same penalties as
those provided in the law itself? Explain your answer fully.

BAR QUESTIONS & ANSWERS

Delegation of Powers (2002)
Suppose that Congress passed a law creating a Department of
Human Habitat and authorizing the Department Secretary to
promulgate implementing rules and regulations.
Suppose
further that the law declared that violation of the implementing
rules and regulations so issued would be punishable as a crime
and authorized the Department Secretary to prescribe the
penalty for such violation. If the law defines certain acts as
violations of the law and makes them punishable, for example,
with imprisonment of three (3) years or a fine in the amount of

The rules and regulations promulgated by the Secretary of

Human Habitat cannot provide that the penalties for their
violation will be the same as the penalties for the violation of the
law. The fixing of the penalty for criminal offenses involves the
exercise of legislative power and cannot be delegated. The law
itself must prescribe the penalty.

Section 32 of Republic Act No. 4670 (The Magna Carta for

Public School Teachers) reads:
Sec. 32. Penal Provision. A person who shall willfully
interfere with, restrain or coerce any teacher in the exercise of
his rights guaranteed by this Act or who shall in any other
manner commit any act to defeat any of the provisions of this
Act shall, upon conviction, be punished by a fine of not less
than one hundred pesos nor more than one thousand pesos, or
by imprisonment, in the discretion of the court.

Is the proviso granting the court the authority to impose a

penalty or imprisonment in its discretion constitutional?
Explain briefly.

The proviso is unconstitutional. Section 32 of R.A. No. 4670

provides for an indeterminable period of imprisonment, with
neither a minimum nor a maximum duration having been set by
the legislative authority. The courts are thus given wide latitude
of discretion to fix the term of imprisonment, without even the
benefit of any sufficient standard, such that the duration thereof
may range, in the words of respondent judge, from one minute to
the life span of the accused. This cannot be allowed. It vests in
the courts a power and a duty essentially legislative in nature
and which, as applied to this case, does violence to the rules on
separation of powers as well as the non-delegability of legislative
powers.

The President of the Philippines authorized the Secretary of

Public Works and Highways to negotiate and sign a loan
agreement with the German Government for the construction
of a dam.
The Senate, by a resolution, asked that the
agreement be submitted to it for ratification. The Secretary of
Foreign Affairs advised the Secretary of Public Works and
Highways not to comply with the request of the Senate. Is the
President bound to submit the agreement to the Senate for
ratification?

The two accepted tests to determine whether or not there is a

valid delegation of legislative power are the Completeness Test
and the Sufficient Standard Test. Explain each.

Completeness test requires that the law must be complete in all

its items and conditions when it leaves the legislature such that

when it reaches the delegate, the only thing he will have to do is

enforce it.
Sufficient Standard test requires that there must be adequate
guidelines or limitations in the law to map out the boundaries of
the delegates authority and prevent the delegation from running
riot.

No, the President is not bound to submit the agreement to the

Senate for ratification. Under Section 20, Article VII of the
Constitution, only the prior concurrence of the Monetary Board
is required for the President to contract foreign loans on behalf of
the Republic of the Philippines.

What are the restrictions prescribed by the Constitution on the

power of the President to contract or guarantee foreign loans on
behalf of the Republic of the Philippines? Explain.

Under Section 20, Article VII of the Constitution, the power of the
President to contract or guarantee loans on behalf of the
Republic of the Philippines is subject to the prior concurrence of
the Monetary Board and subject to such limitations as may be
prescribed by law.

An Executive Agreement was executed between the Philippines

and a neighboring State. The Senate of the Philippines took it
upon itself to procure a certified true copy of the Executive
Agreement and, after deliberating on it, declared, by a
unanimous vote, that the agreement was both unwise and
against the best interest of the country. Is the Executive
Agreement binding (a) from the standpoint of Philippine law;
and (b) from the standpoint of international law? Explain.
(a) From the standpoint of Philippine law, the Executive Agreement
is binding. Under the Constitution, the President can enter into
an Executive Agreement without the necessity of concurrence by
the Senate.
(b) The Executive Agreement is also binding from the standpoint of
international law.

What are the limitations/restrictions provided by the

Constitution on the power of Congress to authorize the
President to fix tariff rates, import and export quotas, tonnage
and wharfage dues. Explain.

According to Section 28(2), Article VI of the Constitution,

Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions
it may impose, tariff rates, import and export quotas, tonnage
and wharfage dues and other duties or imposts within the
framework of the national development program of the
Government.

1) How does the local legislative assembly override the veto by

the local chief executive of an ordinance?
2) On what grounds can a local chief executive veto an
ordinance?
3) How can an ordinance vetoed by a local chief executive
become a law without it being overridden by the local
legislative assembly?
(1) Under the Local Government Code, the local legislative assembly
can override the veto of the local chief executive by two-thirds
vote of all its members.

2) Under the Local Government Code, the local chief executive may
veto an ordinance on the ground that it is ULTRA VIRES or
PREJUDICIAL TO THE PUBLIC WELFARE.
3) Pursuant to the Local Government Code, an ordinance vetoed by
the local chief executive shall be deemed approved if he does not
communicate his veto to the local legislative assembly within 15
days in the case of a province and 10 days in the case of a city or
a municipality, from the date of its submission. Likewise, if the
veto by the local executive has been overridden by the local
legislative assembly, a second veto will be void. Under the Local
Government Code, the local chief executive may veto an
ordinance only once.

Can a Barangay Assembly exercise any police power?

No, the Barangay Assembly cannot exercise any police power.

Under the Local Government Code, it can only recommend to the
Sangguniang Barangay the adoption of measures for the welfare
of the barangay and decide on the adoption of an initiative.

Can the Liga ng mga Barangay exercise legislative powers?

The Liga ng Mga Barangay cannot exercise legislative powers

since it is not a local government unit and its primary purpose is
limited to determine representation of the sanggunians; to
ventilate, articulate, and crystallize issues affecting barangay

government administration; and to secure solutions for them

through proper and legal means.
Suppose Congress passed a law to Implement the Constitutional
principle that a public office is a public trust, by providing as
follows:
"No employee of the Civil Service shall be excused from
attending and testifying or from producing books, records,
correspondence, documents or other evidence in any
administrative investigation concerning the office in which he
is employed on the ground that his testimony or the evidence
required of him may tend to incriminate him or subject him to
a penalty or forfeiture; but his testimony or any evidence
produced by him shall not be used against him in criminal
prosecution based on the transaction, matter or thing
concerning which is compelled, after invoking his privilege
against self-incrimination, to testify or produce evidence.
Provided, however, that such individual so testifying shall not
be exempt from prosecution and punishment for perjury
committed in so testifying nor shall he be exempt from
demotion or removal from office. Any employee who refuses to
testify or produce any documents under this Act shall be
dismissed from the service."
(1) Suppose further, that Ong, a member of the Professional
Regulatory Board, is required to answer questions in an

investigation
regarding
a
LEAKAGE
in
a
medical
examination, can Ong refuse to answer questions on the
ground that he would incriminate himself?
(2) Suppose he refuses to answer, and for that reason, is
dismissed from the service, can he pausibly argue that the
Civil Service Commission has inferred his guilt from his
refusal to answer in violation of the Constitution?
(3) Suppose, on the other hand, he answers the question and on
the basis of his answers, he is found guilty and is dismissed.
Can he plausibly assert that his dismissal is based on
coerced confession?
1. No, Ong cannot refuse to answer the question on the ground that
he would incriminate himself, since the law grants him immunity
and prohibits the use against him in a criminal prosecution of
the testimony or evidence produced by him.
What the
constitutional prohibition against self incrimination seeks to
prevent is the conviction of the witness on the basis of testimony
elicited from him. The rule is satisfied when he is granted
immunity.

2. No, Ong cannot argue that the Civil Service Commission inferred
his guilt from his refusal to answer. He is not dismissed because
of his involvement in the leakage in the medical examination, but
for his refusal to answer considering that this is a violation of the
law. He could be compelled to answer the question on pain of
being dismissed in case of his refusal, because he was granted
immunity. Also, given adequate immunity, the State may plainly
insist that employees either answer questions under oath about
the performance of their job or suffer the loss of employment.
3. Yes, Ong can argue that his dismissal was based on coerced
confession.
The President exercises the power of control over all executive
departments and agencies, including government-owned or
controlled corporations.

TRUE. The president exercises the power of control over all

executive departments and agencies, including governmentowned or controlled corporations with or without original
charters. But the President does not have the power of control
over LGUs.