elections reviewer for midterms

7/31/2019 Elections Reviewer for Midterms

1/46

Election Laws Reviewer 2011 by can & she

This reviewer has two parts:1. Outline based laws and cases

2. Discussion based Transcriptions___________________________________________

Outline Based Laws and Cases

III. COMMISSION ON ELECTIONS

a. Composition and Qualifications

Art. IX, C, Sec. 1 (1) There shall be aCommission on Elections composed of a Chairmanand six Commissioners who shall be natural-born citizens of the Philippines and, at thetime of their appointment, at least thirty-fiveyears of age, holders of a college degree, andmust not have been candidates for any electivepositions in the immediately preceding elections.However, a majority thereof, including theChairman, shall be members of the Philippine Barwho have been engaged in the practice of law forat least ten years.1 chairman

6 commissioners

Qualifications:

Natural-born citizen- Who are natural-born citizens?1. citizens of the Philippines from birth whodo not need to perform any act to acquireor perfect their Philippine citizenship.2. Those who elect Philippine citizenshipunder Art. IV, Sec 1(3).

@ least 35 years old

College degree

Must NOT have been candidates for anyelective position in the immediatelypreceeding elections.

Chairman: member of Phil. Bar & practicedlaw for @ least 10 years

@ least majority of commissionersmember of Phil. Bar & practiced law for @least 10 years

Term: 7 years without reappointment, inorder toassure the independence of comelec.

-Must not be engage in any other profession.-Salary is fixed by law and cannot beincreased during tenure.Has fiscal autonomy and there is assurancethat approval of annual appropriations shall beautomatic and regular.

-Removable only by impeachment.

Art. VII, Sec. 13, par. 2 The spouse andrelatives by consanguinity or affinity within thefourth civil degree of the President shall not,during his tenure, be appointed as Members ofthe Constitutional Commissions, or the Office ofthe Ombudsman, or as Secretaries,Undersecretaries, chairmen or heads of bureausor offices, including government-owned orcontrolled corporations and their subsidiaries.

Cayetano vs. Monsod

Practice of law means any activity, in or out ofcourt, which requires the application of law, legalprocedure, knowledge, training and experience."To engage in the practice of law is to performthose acts which are characteristics of theprofession. Generally, to practice law is to give

notice or render any kind of service, which deviceor service requires the use in any degree of legalknowledge or skill."

Is teaching considered practice of law?

No. According to U.S. jurisprudence teaching isnot practice of law. There must be a client andlawyer relationship.

b. Appointment and term of office ofCommissioners

Art. IX, C, Sec. 1(2) - The Chairman and theCommissioners shall be appointed by thePresident with the consent of the Commission onAppointments for a term of seven years withoutreappointment. Of those first appointed, threeMembers shall hold office for seven years, twoMembers for five years, and the last Members forthree years, without reappointment. Appointmentto any vacancy shall be only for the unexpired

term of the predecessor. In no case shall anyMember be appointed or designated in atemporary or acting capacity.

b.1. Disqualifications

Art. IX, A, Sec. 4 - The ConstitutionalCommissions shall appoint their officials andemployees in accordance with law.

b.2. Salary

Art. XVIII, Sec. 17 - Until the Congress providesotherwise, the President shall receive an annualsalary of three hundred thousand pesos; the Vice-President, the President of the Senate, theSpeaker of the House of Representatives, and theChief Justice of the Supreme Court, two hundredforty thousand pesos each; the Senators, theMembers of the House of Representatives, theAssociate Justices of the Supreme Court, and theChairmen of the Constitutional Commissions, twohundred four thousand pesos each; and theMembers of the Constitutional Commissions, onehundred eighty thousand pesos each.

Art. IX, A, Sec 3 - The salary of the Chairmanand the Commissioners shall be fixed by law andshall not be decreased during their tenure.

b.3. Appointment of personnel

Art. IX, A, Sec. 4 - The ConstitutionalCommissions shall appoint their officials andemployees in accordance with law.

b.4. Removal

Art. XI, Sec. 2 - The President, the Vice-President, the Members of the Supreme Court, theMembers of the Constitutional Commissions, andthe Ombudsman may be removed from office onimpeachment for, and conviction of, culpableviolation of the Constitution, treason, bribery,graft and corruption, other high crimes, orbetrayal of public trust. All other public officersand employees may be removed from office asprovided by law, but not by impeachment.

1


2/46


3/46


involving elective municipal officialsdecided by trial courts of general

jurisdiction, or involving elective barangayofficials decided by trial courts of limited

jurisdiction.

Decisions, final orders, or rulings of theCommission on election contests involvingelective municipal and barangay officesshall be final, executory, and not

appealable.Section 3. The Commission on Electionsmay sit en banc or in two divisions, andshall promulgate its rules of procedure inorder to expedite disposition of electioncases, including preproclamationcontroversies. All such election cases shallbe heard and decided in division, providedthat motions for reconsideration ofdecisions shall be decided by theCommission en banc.

Importance of classifying the powers:

because procedure/ remedies are differentdepending on whether it exercisesadjucatory or administrative powers

o Bayan vs. Comelec: requirement

that decisions, ruling and finalorders of comelec involvingelective officials are required firstto go through various stages, plusthe requirement that must gothrough comelec in division beforeproceeding en banc (see Sec. 3,Art. 9-C of the 1987 Constitution)pertains only to powers exercised

by comelec in its quasi-judicialpowers

Taule v SantosThe jurisdiction of the COMELEC does not coverprotests over the organizational set-up of thekatipunan ng mga barangay composed ofpopularly elected punong barangays asprescribed by law whose officers are voted uponby their respective members.

The COMELEC exercises only appellate jurisdictionover election contests involving elective barangayofficials decided by the Metropolitan or Municipal

Trial Courts which likewise have limitedjurisdiction.

The authority of the COMELEC over the katipunanng mga barangay is limited by law to supervisionof the election of the representative of thekatipunan concerned to the sanggunian in aparticular level conducted by their own respectiveorganization.

Administrative Powers

c.1 Enforce election laws

(1) Enforce and administer all laws andregulations relative to the conduct of an election,plebiscite, initiative, referendum, and recall.

c.2 Decide administrative questionspertaining to elections, except the right tovote [Art 9, C, Sec 2(3)]

(3) Decide, except those involving the right tovote, all questions affecting elections, includingdetermination of the number and location of

polling places, appointment of election officialsand inspectors, and registration of voters.

Taule vs. Santos: Comelecs power toenforce laws relative to the conduct ofelection, refers to popular election (local(including barangay) and nationalelections)

o Does not apply to the election of

the Federation of Associations of

Barangay Councils (as in this case)or SK officials, so comelec does nothave jurisdiction

o Election of SK officials fall under

the DILG

Other examples of this power to enforceand administer laws:

o Power of comelec to look into

issues regarding the determinationof location of polling places,appointment of official and

inspectors

o registration of voters

Note: constitutional prohibition that the right tovote is not part of comelec power --- no law canever be passed transferring the inclusion orexclusion cases from the courts to comelec

o Constitutional mandate that the

right to vote is excluded fromcomelec powers because thedisposition pertaining to rights isinherently judicial

o Thus, tegistration of voters,annulment of list of voters belongsto comelec bu the determination ofwhether a person has the right tovote is with the MTC

c.3. Petition for inclusion or exclusion ofvoters [Art 9, C, Sec 2(6)]

upon a verified complaint or on its owninitiative, file petitions in court for theinclusion and exclusion of voters

c.4. Prosecute election law violators [Art 9,C, Sec 2(6)]; BP 881, Sec 265; E.O. 134 Sec11

investigate and prosecute (whereappropriate) cases of violation of electionlaws

including acts or omissions constitutingelection frauds, offenses and malpractices

Section 265. Prosecution. - The Commissionshall, through its duly authorized legal officers,have the exclusive power to conductpreliminary investigation of all election

offenses punishable under this Code, and toprosecute the same. The Commission may avail ofthe assistance of other prosecuting arms of thegovernment: Provided, however, That in the eventthat the Commission fails to act on anycomplaint within four months from his filing,the complainant may file thecomplaint withthe office of the fiscal or with the Ministry of

Justice for proper investigation andprosecution, if warranted.Sec. 11. Prosecution. The Commission shall,through its duly authorized legal officers, have

3


4/46


exclusive power to conduct preliminaryinvestigation of all election offenses punishable asprovided for in the preceding section, and toprosecute the same: Provided, That in the eventthat the Commission fails to act in any complaintwithin two (2) months from filing, the complainantmay file the complaint with the Office of the Fiscalor with the Department of Justice for properInvestigation and prosecution, if warranted.

The Commission may avail of the assistance of

other prosecuting arms of the government.De Jesus vs People

COMELEC and not SB has jurisdiction to tryelection offices committed by public officerin relation to his office

The grant to the COMELEC of the power,among others, to enforce and administerall laws relative to the conduct of electionand the concomitant authority toinvestigate and prosecute electionoffenses is not without compelling reason.

The evident constitutional intendment in

bestowing this power to the COMELEC is toinsure the free, orderly and honestconduct of elections, failure of which wouldresult in the frustration of the true will ofthe people and make a mere idleceremony of the sacred right and duty ofevery qualified citizen to vote. To divestthe COMELEC of the authority toinvestigate and prosecute offensescommitted by public officials in relation totheir office would thus seriously impair itseffectiveness in achieving this clearconstitutional mandate.

Comelec vs Tagle

It must be stressed that the COMELEC hasthe exclusive power to conduct preliminaryinvestigation of all election offensespunishable under the election laws and toprosecute the same, except as mayotherwise be provided by law. 11 The ChiefState Prosecutor, all Provincial and CityProsecutors, or their respective assistantsare, however, given continuing authority,as deputies of the COMELEC, to conductpreliminary investigation of complaints

involving election offenses and toprosecute the same. This authority maybe revoked or withdrawn by the COMELECanytime whenever, in its judgment, suchrevocation or withdrawal is necessary toprotect the integrity of the COMELEC andto promote the common good, or when itbelieves that the successful prosecution ofthe case can be done by the COMELEC.

In this case, when the COMELEC nullifiedthe resolution of the Provincial Prosecutorin I.S. No. 1-99-1080, which was the basisof the informations for vote-selling, it, in

effect, withdrew the deputation granted tothe prosecutor. Such withdrawal of thedeputation was clearly in order,considering the circumstances obtaining inthese cases where those who voluntarilyexecuted affidavits attesting to the vote-buying incident and became witnessesagainst the vote-buyers now stand asaccused for the same acts they had earlierdenounced. What the Prosecutor did wasto sabotage the prosecution of the criminalcase against the "vote-buyers" and put in

serious peril the integrity of the COMELEC,which filed the said case for vote-buying. Ifthe Prosecutor had listened to thecommand of prudence and good faith, heshould have brought the matter to theattention of the COMELEC.

People vs Basilla

We note that while Section 265 of theCode vests "exclusive power" to conduct

preliminary investigation of electionoffenses and to prosecute the same uponthe Comelec, it at the same timeauthorizes the Comelec to avail itself ofthe assistance of other prosecuting armsof the Government (Section 2, Article IX-Cof the 1987 Constitution; Executive OrderNo. 134).

The contention of private respondents thatthe deputation by the Comelec of theprosecuting arms of the Governmentwould be warranted only before theelections and only to ensure free, honest,

orderly, peaceful and credible elections,that is, to perform the peace-keepingfunctions of policemen, lacks substance.

There is nothing in Section 2 (4) of ArticleIX-C of the Constitution which requiressuch a pinched and niggardlyinterpretation of the authority of theComelec to appoint as its deputies,officials or employees of other agenciesand instrumentalities of the government.

The prompt investigation and prosecutionand disposition of election offensesconstitute an indispensable part of the

task of securing free, orderly, honest,peaceful and credible elections. Theinvestigation and prosecution of electionoffenses are, in an important sense, moreimportant than the maintenance ofphysical order in election precincts.Without the assistance of provincial andcity fiscals and their assistants and staffmembers, and of the state prosecutors ofthe Department of Justice, the prompt andfair investigation and prosecution ofelection offenses committed before or inthe course of nationwide elections would

simply not be possible, unless, perhaps,the Comelec had a bureaucracy manytimes larger than what it actually has.

Moreover, the prosecution officersdesignated by the Comelec becomedeputies or agents of the Comelecand pro tanto subject to theauthority, control and supervision ofthe Comelec in respect of theparticular functions covered by suchdeputation. The acts of such deputieswithin the lawful scope of theirdelegated authority are, in legal

contemplation, the acts of theComelec itself.

The only limitation the Constitution itselfplaces upon the Comelec's authority overits deputies relates to the enforcement ofsuch authority through administrativesanctions. Such sanctions - e.g.,suspension or removal - may berecommended by the Comelec to thePresident (Sec. 2 [8], Article IX-C, 1987Constitution) rather than directly imposed

4


5/46


by the Comelec, evidently, to pre-emptand avoid potential difficulties with theexecutive department of the Governmentwhere the prosecution and other officersdeputized are ordinarily located.

People vs Inting

Does a preliminary investigationconducted by a Provincial ElectionSupervisor involving election offenses

have to be coursed through the ProvincialFiscal now Provincial Prosecutor, beforethe Regional Trial Court may takecognizance of the investigation anddetermine whether or not probable causeexists?

This means that the COMELEC isempowered to conduct preliminaryinvestigations in cases involving electionoffenses for the purpose of helping the

Judge determine probable cause and forfiling an information in court. This power isexclusive with COMELEC.

Hence, the Provincial Fiscal, as such,assumes no role in the prosecution ofelection offenses. If the Fiscal orProsecutor files an information charging anelection offense or prosecutes a violationof election law, it is because he has beendeputized by the COMELEC. He does notdo so under the sole authority of his office.

In the instant case, there is no avermentor allegation that the respondent Judge isbringing in the Provincial Fiscal as adeputy of COMELEC. He wants the Fiscal to"approve" the COMELEC's preliminary

investigation.

People vs Delgado

Issue: authority of the Regional Trial Court(RTC) to review the actions of theCommission on Elections (COMELEC) in theinvestigation and prosecution of electionoffenses filed in said court is the center ofcontroversy of this petition.

Aside from the adjudicatory or quasi-judicial power of the COMELEC to decideelection contests and administrativequestions, it is also vested the power of apublic prosecutor with the exclusiveauthority to conduct the preliminaryinvestigation and the prosecution ofelection offenses punishable under theCode before the competent court.

Thus, when the COMELEC, through its dulyauthorized law officer, conducts thepreliminary investigation of anelection offense and upon a primafacie finding of a probable cause, filesthe information in the proper court,

said court thereby acquiresjurisdiction over the case.

Consequently, all the subsequentdisposition of said case must be subject tothe approval of the court. The COMELECcannot conduct a reinvestigation of thecase without the authority of the court orunless so ordered by the court.

The records of the preliminaryinvestigation required to be produced bythe court must be submitted by theCOMELEC. The trial court may rely on the

resolution of the COMELEC to file theinformation, by the same token that it mayrely on the certification made by theprosecutor who conducted the preliminaryinvestigation, in the issuance of thewarrant of arrest. Nevertheless the courtmay require that the record of thepreliminary investigation be submitted toit to satisfy itself that there is probablecause which will warrant the issuance of a

warrant of arrest. The refusal of the COMELEC or its agents

to comply with the order of the trial courtrequiring them to conduct areinvestigation in this case and to submitto the court the record of the preliminaryinvestigation on the ground that only thisCourt may review its actions is certainlyuntenable.

what is contemplated by the term 'finalorders, rulings and decisions' of theCOMELEC reviewable on certiorari bythe Supreme Court as provided by laware those rendered in actions orproceedings before the COMELEC andtaken cognizance of by said body inthe exercise of its adjudicatory orquasi-judicial powers."

Thus, the decisions of the COMELECon election contests or administrativequestions brought before it aresubject to judicial review only by thisCourt.

c.5. Recommend pardon, amnesty, parole,or suspension of sentence of election law

violators [Art 9, C, Sec 5] favorable recommendation from the

comelec to the President is required

c.6. Deputize law enforcement agents andrecommend their removal for violation of itsorders [Art 9, C, Sec 2(4&8)]

deputize with the concurrence of thepresident

o law enforcement agencies and

instrumentalities of thegovernment

o including AFP

o for free, orderly, honest, peaceful

and credible elections

recommend to president the removal ofany officer or employee it has deputized

o imposition of any other disciplinary

action for violation or disregard ofor disobedience to its directive,order or decision

c.7. Registration of political parties,organizations and coalitions andaccreditation of citizens arms

[Art 9, C, Sec 2(5); Sec 6,7,8; Art 6, Sec 5(2)]

register after sufficient publication

present their platform or program ofgovernment

religious denominations and sects shall notbe registered

refuse registration to thoseo which seek to achieve goals

through violence and unlawfulmeans or

o refuse to uphold and adhere to the

constitution or5


6/46


o which are supported by any foreign

government

cancel registration when accept financialcontribution from foreign governments andtheir agencies

free and open party system according tothe free choice of the people

for votes to be valid, the political party,organization or coalition shall beregistered

political parties, organizations or coalitionsshall be entitled to appoint poll watchers inaccordance with law but they shall not berepresented in the voters registration BEI,BOC or other similar bodies

party list representatives shall constitute20% of the total number of representativesincluding those under the party list

for 3 consecutive terms, of the seatsallocated to party list representatives shallbe filled from the labor, peasant, youth,urban poor, indigenous culturalcommunities, women, youth and suchother sectors as may be provided by lawexcept the religious sector

Bagong Bayani vs Comelec

Give them the opportunity to be electedand to represent the specific concerns oftheir constituencies; and simply to givethem a direct voice in Congress and in thelarger affairs of the State.

c.8 Regulation of public utilities and mediaof information [Art 9, C, Sec 4; Sec 9]

supervise/ regulate franchises or permitsfor the operation of transportation andother public utilities, media ofcommunication or information, all grants,special privileges or concessions grantedby the government or any subdivision,agency, or instrumentality thereof

NPC vs Comelec

The Comelec has thus been expresslyauthorized by the Constitution to superviseor regulate the enjoyment or utilization ofthe franchises or permits for the operation

of media of communication andinformation. The fundamental purpose ofsuch "supervision or regulation" has beenspelled out in the Constitution as theensuring of "equal opportunity, time, andspace, and the right to reply," as well asuniform and reasonable rates of chargesfor the use of such media facilities, inconnection with "public informationcampaigns and forums amongcandidates."

o Limited in the duration of its

applicability and enforceabilityo

Limited in the scope of applicationo Exempt from prohibition the

purchase or donation to theComelec

The limitation bears a clear andreasonable connection withconstitutional objective

SWS vs Comelec

According to the Court, Section 5.4 wasinvalid because of three reasons:

o (1) it imposed a prior restraint on

the freedom of expression,o (2) it was a direct and total

suppression of a category ofexpression even though suchsuppression was only for a limitedperiod, and

o (3) the governmental interest

sought to be promoted could beachieved by means other than thesuppression of freedom ofexpression.

c.9. Rule-making [Art 9, A, Sec 6]

commission en banc may promulgate ownrules concerning pleadings andpractice before it or before any of itsoffices

such rules shall not diminish, increase ormodify substantive rights

Aruelo vs CA

Constitutionally speaking, the COMELEC can notadopt a rule prohibiting the filing of certainpleadings in the regular courts.

The power to promulgate rules concerningpleadings, practice and procedure in all courts isvested on the Supreme Court (Constitution, Art.VIII, Sec. 5 [5]).

Petitioner filed the election protest (Civil Case No.343-M-92) with the Regional Trial Court, whoseproceedings are governed by the Revised Rules ofCourt.

Section 1, Rule 13, Part III of the COMELEC Rulesof Procedure is not applicable to proceedingsbefore the regular courts. As expressly mandatedby Section 2, Rule 1, Part I of the COMELEC Rulesof Procedure, the filing of motions to dismiss andbill of particulars, shall apply only to proceedingsbrought before the COMELEC.

c.10. Adjudicatory [Art 9, C, Sec 2(2)]; 3

exclusive jurisdiction over all contestsrelating to elections, returns andqualifications of all elective regional,provincial and city officials

appellate jurisdiction over all contestsinvolving elective municipal officialsdecided by RTC or involving electivebarangay officials decided by MTCs

decide except the right to vote allquestions affecting elections (c.2.)

comelec may sit en banc or in 2 divisionsand shall promulgate its rules of procedurein order to expedite disposition of election

cases including preproclamationcontroversies

all such election cases shall be heard anddecided in division

motions for reconsideration of decisionsshall be decided by the commission enbanc

Javier vs Comelec

In making the Commission on Elections the solejudge of all contests involving the election,

6


7/46


returns and qualifications of the members of theBatasang Pambansa and elective provincial andcity officials, the Constitution intended to give itfull authority to hear and decide these casesfrom beginning to end and on all mattersrelated thereto, including those arisingbefore the proclamation of the winners

The COMELEC en banc must hear and resolve apre-proclamation controversy for Batasan

members

Canicosa vs Comelec

Petition should have first been heard by a divisionof COMELEC and later by the COMELEC en bancupon motion for reconsideration; provision appliesonly when the COMELEC acts in the exercise of itsadjudicatory or quasi-judicial functions and notwhen it merely exercises purely administrativefunctions.It is only in the exercise of its adjudicatory or

quasi-judicial powers that the COMELEC ismandated to hear and decide cases first byDivision and then, upon motion forreconsideration, by the COMELEC en banc. This iswhen it is jurisdictional.

The COMELEC exercises direct and immediatesupervision and control over national and localofficials or employees, including members of anynational or local law enforcement agency andinstrumentality of the government required bylaw to perform duties relative to the conduct ofelections.

Its power of direct supervision and controlincludes the power to review, modify or set asideany act of such national and local officials.It exercises immediate supervision and controlover the members of the boards of electioninspectors and canvassers. Its statutory power ofsupervision and control includes the power torevise, reverse or set aside the action of theboards, as well as to do what the boards shouldhave done, even if questions relative thereto havenot been elevated to it by an aggrieved party, forsuch power includes the authority to initiate motu

proprio or by itself such steps or actions as maybe required pursuant to law.

Lazatin vs Comelec

Petitioner has been proclaimed winner of theCongressional elections in the first district ofPampanga, has taken his oath of office as such,and assumed his duties as Congressman. For thisCourt to take cognizance of the electoral protestagainst him would be to usurp the functions of theHouse Electoral Tribunal. The alleged invalidity ofthe proclamation (which had been previously

ordered by the COMELEC itself) despite allegedirregularities in connection therewith, and despitethe pendency of the protests of the rivalcandidates, is a matter that is also addressed,considering the premises, to the sound judgmentof the Electoral Tribunal.

Lazatin vs HRET

The Constitution vests exclusive jurisdictionover all contests relating to the election, returnsand qualifications of the Members of the

Senate and the House of Representatives inthe respective Electoral Tribunals [Art. VI,Sec. 17].

The exclusive original jurisdiction of the COMELECis limited by constitutional fiat to election contestspertaining to elective regional, provincial and cityoffices and its appellate jurisdiction to thoseinvolving municipal and barangay offices [Art. IX-C, Sec. 2(2)].

The power of the HRET, as the sole judge of allcontests relating to the election, returns andqualifications of the Members of the House ofRepresentatives, to promulgate rules andregulations relative to matters within its

jurisdiction, including the period for filing electionprotests before it, is beyond dispute. Its rule-making power necessarily flows from the generalpower granted it by the Constitution.

Each electoral tribunalo 9 members

3 justice of SC to bedesignated by chief justice

6 members of the senate/HR chosen on the basis ofproportional representationfrom the political partiesand the parties ororganizations registeredunder the party-list systemrepresented therein

Chairman will be the seniorjustice in the electoraltribunal

so long as the Constitution grants theHRET the power to be the sole judge of allcontests relating to the election, returnsand qualifications of Members of theHouse of Representatives, any finalaction taken by the HRET on a matterwithin its jurisdiction shall, as a rule,not be reviewed by this Court.

As stated earlier, the power granted to theElectoral Tribunal is full, clear andcomplete and "excludes the exercise ofany authority on the part of this Court thatwould in any wise restrict or curtail it oreven affect the same.

the Court declared that "[t]he judgmentrendered by the Electoral] Commission inthe exercise of such an acknowledgedpower is beyond judicial interference,except, in any event, upon a clear showingof such arbitrary and improvident use ofthe power as will constitute a denial of dueprocess of law."

Under the 1987 Constitution, the scope ofthe Court's authority is made explicit. Thepower granted to the Court includes theduty "to determine whether or not therehas been a grave abuse of discretionamounting to lack or excess of jurisdictionon the part of any branch orinstrumentality of the Government" [Art.VIII, Sec. 1].

Thus, only where such grave abuse ofdiscretion is clearly shown shall the Courtinterfere with the HRET's judgment.

In the instant case, there is no occasion forthe exercise of the Court's correctivepower, since no grave abuse of discretion

7


8/46


that would amount to lack or excess ofjurisdiction and would warrant theissuance of the writs prayed for has beenclearly shown.

Roces vs HRET

The HRET is the sole judge of all contests relatingto the election, returns, and qualifications of themembers of the House of Representatives 38 and

has the power to promulgate procedural rules togovern proceedings brought before it. 39 Thisexclusive jurisdiction includes the power todetermine whether it has the authority to hearand determine the controversy presented, andthe right to decide whether that state of factsexists which confers jurisdiction, as well as allother matters which arise in the case legitimatelybefore it. 40 Accordingly, it has the power to hearand determine, or inquire into, the question of itsown jurisdiction, both as to parties and as tosubject matter, and to decide all questions,whether of law or fact, the decision of which is

necessary to determine the question ofjurisdiction. 41 One of the three essentialelements of jurisdiction is that proper partiesmust be present. 42 Consequently, the HRETmerely exercised its exclusive jurisdiction when itruled that Mrs. Ang Ping was a proper party tocontest the election of Roces.

There is no dispute that to support his motion todismiss, Roces offered as evidence the COMELECresolutions denying due course to Mrs. Ang Ping'sCOC. In doing so, Roces submitted to the HRETthe admissibility and validity of these resolutions

and the HRET cannot be faulted in reviewing thesaid resolutions especially for the purpose ofdetermining whether Roces was able todischarge his burden of proving that Mrs.Ang Ping is not the proper party to assail hiselection. In passing upon the COMELECresolutions especially for that purpose, it cannotbe said that the HRET usurped the jurisdiction ofthe COMELEC.We hold that the HRET did not abuse its discretionin holding that Mrs. Ang Ping is a proper party tocontest the election of Roces.

The COMELEC en banc usurped the jurisdiction ofthe COMELEC First Division when it issuedResolution No. 6823 on May 8, 2004 whichordered the deletion of Mr. Ang Ping's name fromthe Certified List of Candidates and denied thespouses Ang Ping's motions to withdraw andsubstitute despite the fact that: (1) thereglementary period of Mr. Ang Ping to appealhad not yet expired; and (2) Mr. Ang Ping hadfiled a motion for reconsideration of the precedingorder on May 10, 2004 within the five-dayreglementary period.

Nowhere is it provided in the law that theCOMELEC en banc has the power to assume

jurisdiction motu proprio over a petition todeny due course pending before a divisionof the Commission.That motions for reconsideration of theCOMELEC division's decisions, resolutions,orders or rulings must first be filed in theDivisions before the Commission en bancmay take cognizance thereof.

It is true that generally, the method of assailing a

judgment or order of the COMELEC is via petitionfor certiorari.

Mendoza vs Comelec

issue with the COMELEC's appreciation ofballots even when the ballots and otherelection materials were no longer in itsofficial custody and were outside its

premises, authority and control

In this case, the COMELEC has transferredpossession, custody and jurisdiction overthe ballots to the SET, a tribunal separateand independent from the COMELEC andover which the COMELEC exercises noauthority or jurisdiction. For the COMELECto still conduct proceedings on property,materials and evidence no longer in itscustody violates the principle of separationof powers.

COMELEC under our governmentalstructure is a constitutional administrativeagency and its powers are essentiallyexecutive in nature (i.e., to enforce andadminister election laws), 11 quasi-judicial(to exercise original jurisdiction overelection contests of regional, provincialand city officials and appellate jurisdictionover election contests of other lowerranking officials), and quasi-legislative(rulemaking on all questions affectingelections and the promulgation of its rulesof procedure).

The COMELEC's adjudicative function isquasi-judicial since it is a constitutionalbody, other than a court, vested withauthority to decide election contests, andin the course of the exercise of its

jurisdiction, to hold hearings and exercisediscretion of a judicial nature; 12 itreceives evidence, ascertain the facts fromthese submissions, determine the law andthe legal rights of the parties, and on thebasis of all these decides on the merits ofthe case and renders judgment. 13

Despite the exercise of discretion that isessentially judicial in character,particularly with respect to electioncontests, COMELEC is not a tribunal withinthe judicial branch of government and isnot a court exercising judicial power in theconstitutional sense; 14 hence, itsadjudicative function, exercised as it is inthe course of administration andenforcement, is quasi-judicial

We state at the outset that the COMELECdid not lose jurisdiction over the provincial

election contest, as the petitioner seemsto imply, because of the transmittal of theprovincial ballot boxes and other electionmaterials to the SET. The Constitutionconferred upon the COMELEC jurisdictionover election protests involving provincialofficials. The COMELEC in this case haslawfully acquired jurisdiction over thesubject matter, i.e., the provincial electioncontest, as well as over the parties. Afterits jurisdiction attached, this jurisdictioncannot be ousted by subsequent events

8


9/46


such as the temporary transfer of evidenceand material records of the proceedings toanother tribunal exercising its own

jurisdiction over another election contestpursuant to the Constitution. This is therule of adherence of jurisdiction.

Thus, the jurisdiction of the COMELEC overprovincial election contest exists side byside with the jurisdiction of the Senate

Electoral Tribunal, with each tribunal beingsupreme in their respective areas ofconcern (the Senate election contests forthe SET, and the regional, provincial andcity election contests for the COMELEC),and with neither one being higher than theother in terms of precedence so that the

jurisdiction of one must yield to the other.

Incidentally, the COMELEC authority topromulgate the above rule enjoysconstitutional moorings; in the grant to theCOMELEC of its jurisdiction, the

Constitution provided it with theaccompanying authority to promulgate itsown rules concerning pleadings andpractice before it or before any of itsoffices, provided that these rules shall notdiminish, increase or modify substantiverights. 28 The Constitution additionallyrequires that the rules of procedure thatthe COMELEC will promulgate mustexpedite the disposition of election cases,including pre-proclamation controversies.29 This constitutional standard isauthority, no less, that the COMELEC can

cite in defending its action. For ultimately,the appreciation of the Bulacan ballotsthat the COMELEC undertook side by sidewith the SET's own revision of ballots,constitutes an exercise of discretion madeunder the authority of the above-citedCOMELEC rule of procedure.

c.11. Review of decisions [Art 9, C, Sec2(2)]; Art 9, A, Sec 7]

appellate jurisdiction over all contestsinvolving elective municipal officialsdecided by RTC or involving elective

barangay officials decided by MTCs decisions, final orders or rulings of the

commission on election contests involvingelective municipal and barangay officesshall be final, executory and notappealable

shall decide by a majority vote of all itsmembers any case or matter broughtbefore it within 60 days from the date ofits submission for decision or resolution

deemed submitted for decision orresolution upon fling of the last pleading,brief or memorandum

any decision or ruling may be brought tothe SC on certiorari w/in 30 days fromreceipt of a copy thereof

Flores vs Comelec

the decision rendered by the MunicipalCircuit Trial Court of Tayum, Abra, shouldhave been appealed directly to theCommission on Elections and not to theRegional Trial Court of Abra.

the provision of Article IX-C, Section 2(2) ofthe Constitution that "decisions, finalorders, or rulings of the Commission onelection contests involving electivemunicipal and barangay offices shall befinal, executory, and not appealable"applies only to questions of fact and not oflaw.

That provision was not intended to divestthe Supreme Court of its authority to

resolve questions of law as inherent in thejudicial power conferred upon it by theConstitution.

unless otherwise provided by thisConstitution or by law, any decision, orderor ruling of each Commission may bebrought to the Supreme Court on certiorariby the aggrieved party within thirty daysfrom receipt of a copy thereof.

Garces vs CA

This provision is inapplicable as there wasno case or matter filed before the

COMELEC.

On the contrary, it was the COMELEC'sresolution that triggered this controversy.

The "case" or "matter" referred to by theconstitution must be something within the

jurisdiction of the COMELEC, i.e., mustpertain to an election dispute.

the settled rule is that "decision, rulings,order" of the COMELEC that may bebrought to the Supreme Court on certiorariunder Sec. 7, Art. IX-A are those relate tothe COMELEC's exercise of its

adjudicatory or quasi-judicial powersinvolving "elective regional, provincialand city officials".

In this case, what is being assailed is theCOMELEC's choice of an appointee tooccupy the Gutalac Post which is anadministrative duty done for theoperational set-up of an agency.

The controversy involves an appointive,not an elective, official. Hardly can thismatter call for the certiorari jurisdiction ofthe Supreme Court. To rule otherwisesurely burden the Court with trivial

administrative questions that are bestventilated before the RTC, a court whichthe law vests with the power to exerciseoriginal jurisdiction over "all cases notwithin the exclusive jurisdiction of anycourt, tribunal, person or body exercising

judicial or quasi-judicial functions.

D. Fiscal Autonomy (Art 9, A, Sec 5)

enjoy fiscal autonomy

approved annual appropriations shall beautomatically and regularly released

IV. Fundamental PrincipleA. Peoples choice as fundamentalconsideration; 2nd placer rule

Geronimo vs Ramos

it would be extremely repugnant to thebasic concept of the constitutionallyguaranteed right to suffrage if a candidatewho has not acquired the majority orplurality of votes is proclaimed a winnerand imposed as the representative of a

9


10/46


constituency, the majority of which havepositively declared through their ballotsthat they do not choose him.

Labo vs Comelec

he obtained only the second highestnumber of votes in the election, he wasobviously not the choice of the people

The fact that the candidate who obtainedthe highest number of votes is later

declared to be disqualified or not eligiblefor the office to which he was elected doesnot necessarily entitle the candidate whoobtained the second highest number ofvotes to be declared the winner of theelective office. The votes cast for a dead,disqualified, or non-eligible person maynot be valid to vote the winner into officeor maintain him there. However, in theabsence of a statute which clearly assertsa contrary political and legislative policyon the matter, if the votes were cast in thesincere belief that the candidate was alive,

qualified, or eligible, they should not betreated as stray, void or meaningless.

Topacio v. Paredes (23 Phil. 238) "Again, the effect of a decision that acandidate is not entitled to the officebecause of fraud or irregularities in theelection is quite different from thatproduced by declaring a person ineligibleto hold such an office. . . . If it be foundthat the successful candidate (according tothe board of canvassers) obtained aplurality in an illegal manner, and that

another candidate was the real victor, theformer must retire in favor of the latter.

In the other case, there is not, strictlyspeaking, a contest, as the wreath ofvictory cannot be transferred from anineligible candidate to any other candidatewhen the sole question is the eligibility ofthe one receiving a plurality of the legallycast ballots. . . ."

Domino vs Ocampo

Thus, the votes cast for Domino werepresumed to have been cast in the sincere

belief that he was a qualified candidate,without any intention to misapply theirfranchise.

Thus, said votes cannot be treated asstray, void, or meaningless.

It is now settled doctrine that thecandidate who obtains the second highestnumber of votes may not be proclaimedwinner in case the winning candidate isdisqualified.

In every election, the people's choice isthe paramount consideration and their

expressed will must, at all times, be giveneffect.

When the majority speaks and elects intooffice a candidate by giving the highestnumber of votes cast in the election forthat office, no one can be declared electedin his place

It would be extremely repugnant to thebasic concept of the constitutionallyguaranteed right to suffrage if a candidate

who has not acquired the majority orplurality of votes is proclaimed a winnerand imposed as the representative of aconstituency, the majority of which havepositively declared through their ballotsthat they do not choose him.

To simplistically assume that the secondplacer would have received the othervotes would be to substitute our judgmentfor the mind of the voters.

He could not be considered the firstamong qualified candidates because in afield which excludes the qualifiedcandidate, the conditions would havesubstantially changed.

Sound policy dictates that public electiveoffices are filled by those who havereceived the highest number of votes castin the election for that office, and it isfundamental idea in all republican forms ofgovernment that no one can be declaredelected and no measure can be declared

carried unless he or it receives a majorityor plurality of the legal votes cast in theelection.

The effect of a decision declaring a personineligible to hold an office is only that theelection fails entirely, that the wreath ofvictory cannot be transferred from thedisqualified winner to the repudiated loserbecause the law then as now onlyauthorizes a declaration of election infavor of the person who have obtained aplurality of votes and does not entitle the

candidate receiving the next highestnumber of votes to be declared elected.

In such case, the electors have failed tomake a choice and the election is a nullity.

To allow the defeated and repudiatedcandidate to take over the electiveposition despite his rejection by theelectorate is to disenfranchise theelectorate without any fault on their partand to undermine the importance andmeaning of democracy and the people'sright to elect officials of their choice.

if the electorate, fully aware in fact and inlaw of a candidate's disqualification so asto bring such awareness within the realmof notoriety, would nevertheless cast theirvotes in favor of the ineligible candidate,the electorate may be said to have waivedthe validity and efficacy of their votes bynotoriously misapplying their franchise orthrowing away their votes, in which case,the eligible candidate obtaining the nexthigher number of votes may be deemedelected,

Ocampo vs Crespo

there must be final judgment before theelection for the votes of a disqualifiedcandidate to be considered stray

hence, when a candidate has not yet beendisqualified by final judgment during theelection day and was voted for, the votescast in his favor cannot be declared stray

to do so would amount to disenfranchisingthe electorate in whom sovereigntyresides

10


11/46


rationale:

the people voted for him bona fide withoutany intention to misapply their franchiseand in the honest belief that the candidatewas then qualified to be the person towhom they would entrust the exercise ofthe powers of the government

Subsequent disqualification of acandidate who obtained the highestnumber of votes does not entitle thecandidate who garnered the secondhighest number of votes to bedeclared the winner

In Geronimo vs. Ramos, 18 if the winningcandidate is not qualified and cannotqualify for the office to which he waselected, a permanent vacancy is thuscreated.

The second placer is just that, a secondplacer he lost in the elections, he wasrepudiated by either the majority orplurality of voters.

He could not be proclaimed winner as hecould not be considered the first amongthe qualified candidates.

To rule otherwise is to misconstrue thenature of the democratic electoral processand the sociological and psychologicalunderpinnings behind voters' preferences.

Part II

LAWS ON PUBLIC OFFICERS

I. INTRODUCTORY CONCEPTS

A. PUBLIC OFFICE AND PUBLIC OFFICERS

public officer one who holds a publicoffice

Art 11, 1987 Constitution

Sec 2b, RA 3019

Public officer includes

elective and appointive officials andemployees,

permanent or temporary

whether in the classified, unclassified orexempt service [ now career and non-carrier]

receiving compensation, evennominalfrom the government

Art. 203, RPC

Public officer is

any person who by direct provision of law,popular election or appointment bycompetent authority

shall take part in the performance of publicfunctions in the government of the Phils.

or shall perform in said government or anyof its branches, public duties

as an employee, agent or subordinateofficial

of any rank or class

Concerned Citizens of Laoag City vs Arzaga

being notoriously undesirable

A court employee being a public servantmust exhibit the highest sense ofhonesty and integrity not only in theperformance of his duties but also in hispersonal and private dealings with

other people to preserve the court'sname and standing.

Therefore, it becomes imperative andsacred duty of each and everyone in thecourt to maintain its good name andstanding as a true temple of justice."(Paredes vs. Padua, 222 SCRA 81).

The conduct and behavior of everyoneconnected with the office charged withthe dispensation of justice from thepresiding judge to the lowliest clerkshould be circumscribed with the heavy

burden of responsibility.

Public service requires the utmostintegrity and strictest discipline.

Thus, a public servant must exhibit atall times the highest sense of honestyand integrity not only in theperformance of his official duties butin his personal and private dealingswith other people.

No less than the Constitution sanctifies theprinciple that a public office is a public

trust, and enjoins all public officersand employees to serve with thehighest degree of responsibility,integrity, loyalty, and efficiency.

In addition, the Code of Conduct andEthical Standards for Public Officials andEmployees provide that every publicservant shall at all times uphold publicinterest over his or her personal interest.

By his acts and misdeeds, respondent has

undermined the public's faith in our courtsand, ultimately, in the administration of

justice. The same make him unfit as acourt employee. His employment musttherefore be terminated at once

Court personnel must adhere to the highethical standards of public service in orderto preserve the Court's good name andstanding.

Time and again, this Court has emphasizedthat the conduct required of courtpersonnel, from the presiding judge to the

lowliest clerk, must always be beyondreproach and must be circumscribed withthe heavy burden of responsibility as to letthem be free from any suspicion that maytaint the judiciary.

Fernandez vs Sto Tomas

public office the right, authority orduty

11


12/46


- created and conferred by law

- by which for a given period, eitherfixed by law or enduring at the pleasureof the creating power

- an individual is invested with someportion of the sovereign functions ofgovernment

- to be exercised by him for the benefit of

the public

Elements of a public officer1. Must be treated by law or authority of law

2. It must possess a delegation of a portion of

the sovereign powers of the government

to be exercised for the benefit of the

public

3. The powers conferred and the duties to be

discharged must be defined, directly, or

impliedly by the legislature or throughlegislative authority

4. The duties must be performed

independently and without control of a

superior power other than the law unless

they be those of an inferior or subordinate

office created or authorized by the

legislature and placed by it under the

general control of superior office or body

5. It must have some permanence and

continuity and be only temporary oroccasional

Characteristics1. It is not a party and cannot be subject of a

contract

2. It is not a hereditable possession

3. It is personal to the holder

We consider that Resolution No. 94-3710has not abolished any public office as that

term is used in the law of public officers.

It is essential to note that none of the"changes in organization" introduced byResolution No. 94-3710 carried with it ornecessarily involved the termination ofthe relationship of public employmentbetween the Commission and any ofits officers and employees. We find itvery difficult to suppose that the 1987Revised Administrative Code havingmentioned fourteen (14) different "Offices"of the Civil Service Commission, meant to

freeze those Offices and to cast inconcrete, as it were, the internalorganization of the Commission until itmight please Congress to change suchinternal organization regardless of theever changing needs of the Civil Service asa whole.

To the contrary, the legislative authorityhad expressly authorized the Commissionto carry out "changes in the organization,""as the need [for such changes] arises."

Assuming, for purposes of argumentmerely, that legislative authority wasnecessary to carry out the kinds ofchanges contemplated in Resolution No.94-3710 (and the Court is not saying thatsuch authority is necessary), suchlegislative authority was validly delegatedto the Commission by Section 17 earlierquoted. The legislative standards to beobserved and respected in the exercise of

such delegated authority are set out notonly in Section 17 itself (i.e., "as the needarises"), but also in the Declaration ofPolicies found in Book V, Title I, Subtitle A,Section 1 of the 1987 RevisedAdministrative Code which required theCivil Service Commission

o Appointments to the staff ofthe Commission are not appointmentsto a specified public office but ratherappointments to particular positionsor ranks.

ELEMENTS:

1. created by law or by authority of law

2. possess a delegation of a portion of thesovereign powers of government,

to be exercised for the benefit of thepublic

3. powers conferred and duties imposed mustbe defined, directly or impliedly,

by the legislature or by legislative

authority

4. duties must be performed independentlyand without the control of a superior powerother than the law

Unless they be those of an inferior orsubordinate office created or authorized by thelegislature

And by it placed under the general controlof a superior office or body

5. must have permanence or continuity

Creation

1. constitution (office of the president)

2. valid statutory enactments ( office of theinsurance commissioner)

3. by authority of law (david commission)

Laurel vs Desierto

salary is not a necessary element ofpublic office

the element of continuity cannot beconsidered as indispensable for publicoffice

Mechem describes the delegation to theindividual of some of the sovereignfunctions of government as "[t]hemost important characteristic" indetermining whether a position is apublic office or not

12


13/46


the most important characteristicwhich distinguishes an office from anemployment

is that the creation and conferring ofan office

involves delegation to the individual ofsome of the sovereign functions ofgovernment

to be exercised by him for the benefitof the public

and that the some portion of thesovereignty of the country

either legislative, executive or judicial,

attaches for the time being , to beexercised for the public benefit

thus, unless the powers so conferred are ofthis nature, the individual is not a publicofficer

The characteristics of a public office,according to Mechem, include thedelegation of sovereign functions, itscreation by law and not by contract,an oath, salary, continuance of theposition, scope of duties, and thedesignation of the position as anoffice.

NCC performs executive functions; createdby an Executive order; Clearly, the NCCperforms sovereign functions. It is,

therefore, a public office, andpetitioner, as its Chair, is a publicofficer.

That petitioner allegedly did notreceive any compensation during histenure is of little consequence.

A salary is a usual but not a necessarycriterion for determining the nature of theposition. It is not conclusive. The salary isa mere incident and forms no part ofthe office. Where a salary or fees isannexed, the office is provided for it is anaked or honorary office, and is supposedto be accepted merely for the public good.

Hence, the office of petitioner as NCCChair may be characterized as anhonorary office, as opposed to alucrative office or an office of profit, i.e.,one to which salary, compensation or feesare attached. 24 But it is a public office,nonetheless.

Neither is the fact that the NCC wascharacterized by E.O. No. 128 as an

"ad-hoc body" make said commissionless of a public office.

The term office, it is said, embraces theidea of tenure and duration, andcertainly a position which is merelytemporary and localcannot ordinarilybe considered an office. "But," saysChief Justice Marshall, "if a duty be acontinuing one, which is defined by rulesprescribed by the government and not bycontract, which an individual is appointed

by government to perform, who enters onthe duties pertaining to his station withoutany contract defining them, if those dutiescontinue though the person be changed, it seems very difficult to distinguishsuch a charge or employment from anoffice of the person who performs theduties from an officer."

At the same time, however, this element

of continuance can not be consideredas indispensable, for, if the otherelements are present "it can make nodifference," says Pearson, C.J., "whetherthere be but one act or a series of acts tobe done, whether the office expires assoon as the one act is done, or is to beheld for years or during good behavior."

Our conclusion that petitioner is a publicofficer finds support in In Re Corliss. 26

There the Supreme Court of Rhode Islandruled that the office of Commissioner ofthe United States Centennial Commissionis an "office of trust" as to disqualify itsholder as elector of the United StatesPresident and Vice-President. (UnderArticle II of the United States Constitution,a person holding an office of trust or profitunder the United States is disqualifiedfrom being appointed an elector.)

To illustrate, the use of the term "includes"in Section 2 (b) indicates that thedefinition is not restrictive. 28 The Anti-Graft and Corrupt Practices Act is justone of several laws that define

"public officers."

Segovia vs Noel

Though there is no vested right to anoffice, which may not be disturbed bylegislation, yet the incumbent has, in asense, a right to his office.

If that right is to be taken away bystatute, the terms should be clear inwhich the purpose is stated.

Public office cannot be regarded as the

property of the incumbent. A public office is not a contract.

Cornejo vs Gabriel

Ordinarily, a public official should not beremoved from office without notice,charges, a trial, and an opportunity forexplanation.

ITC: we are dealing with an administrativeproceeding and not with a judicialproceeding

Due process of law is not necessarilyjudicial process; much of the process bymeans of which the Government is carriedon, and the order of society maintained, ispurely executive or administrative, whichis as much due process of law, as is

judicial process.

While a day in court is a matter of right injudicial proceedings, in administrativeproceedings it is otherwise since theyrest upon different principles.

13


14/46


In certain proceedings of anadministrative character, the right toa notice and hearing are not essentialto due process of law.

A public office is not property withinthe sense of the constitutional guarantiesof due process of law but is a public trustor agency. For this petition to comeunder the due process of law

prohibition, it would be necessary toconsider an office as property.

public offices are mere agencies ortrusts, and not property

Power to suspend temporarily may beexercised without notice to the personsuspended.

Notice and hearing are not prerequisites tothe suspension of a public officer under astatute which does not provide for suchnotice and hearing.

The basic idea of government in thePhilippine Islands, as in the United States,is that of a popular representativegovernment, the officers being mereagents and not rulers of the people, onewhere no man or set of men has aproprietary or contractual right to anoffice, but where every officer acceptsoffice pursuant to the provisions of the lawand holds the office as a trust for thepeople whom he represents.

"The suspension of an officer pending his

trial for misconduct, so as to tie his handsfor the time being, seems to be universallyaccepted as fair, and often necessary. . . .Notice and hearing are notprerequisites to suspension unlessrequired by statute and thereforesuspension without such notice does notdeprive the officer of property without dueprocess of law. Nor is a suspensionwanting in due process of law or a denialof the equal protection of the laws becausethe evidence against the officer is notproduced and he is not given an

opportunity to confront his accusers andcross-examine the witnesses."

"The safety of the state, which is thehighest law, imperatively requires thesuspension, pending his trial, of a publicofficer, especially a custodian of publicfunds, charged with malfeasance ornonfeasance in office. Suspension does notremove the officer, but merely preventshim, for the time being, from performingthe functions of his office; and from thevery necessities of the case must precede

a trial or hearing. Such temporarysuspension without previous hearing isfully in accordance with the analogies ofthe law. It is a constitutional principle thatno person shall be deprived of his libertyor property except by due process of law,which includes notice and a hearing, yet itwas never claimed that in criminalprocedure a person could not be arrestedand deprived of his liberty until a trialcould reasonably be had, or that in civilactions ex parte and temporary injunctions

might not be issued and retained in propercases, until a trial could be had, and therights of the parties determined. We haveno doubt, therefore, of the authority of thelegislature to vest the governor with powerto temporarily suspend a county treasurerpending the investigation of the chargesagainst him, of official misconduct."

'The duty of suspension was imposed upon

the Governor from the highest motives ofpublic policy to prevent the danger to thepublic interests which might arise fromleaving such great powers andresponsibilities in the hands of men legallydisqualified. To leave them in full charge oftheir office until the next biennial sessionof the legislature, or pending litigationwhich might be continued for years, woulddestroy the very object of the law.

Abeja vs Tanada

We also find as erroneous the substitution

of the deceased Rosauro Radovan's widow,Ediltrudes Radovan, on the ground thatprivate respondent had a counter-claim fordamages.

"Public office is personal to theincumbent and is not a propertywhich passes to his heirs" (Santos vs.Secretary of Labor, 22 SCRA 848 [1968];De la Victoria vs. Comelec, 199 SCRA 561[1991]).

The heirs may no longer prosecutethe deceased protestee's counter-

claim for damages against theprotestant for that was extinguishedwhen death terminated his right tooccupy the contested office (DelaVictoria, supra).

B. KINDS OF PUBLIC OFFICERS

DE JURE

By right; by right in law

validly appointed

an officer who exercises the duties of anoffice for which the holder has fulfilled allthe qualifications

DE FACTO

BLACKs

An officer who exercises the duties ofan office

under the color of an appointment orelection

but who has failed to qualify for officefor any one of various reasons

as by being under the required age,

having failed to take oath

having not furnished a required bond

or having taken office under a statutelater declared unconstitutional

14


15/46


[d]

w/o appointment or election but undersuch circumstances of reputation oracquiescence as were calculated toinduce people w/o injury to submit orinvoke his action supposing him to be anofficer

officer not eligible

want of power in election orappointing body

one acting under color of right and withapparent authority

but who is not legally a corporate officer

the corporation is bound by all actsand contracts of an officer de facto inthe same way as it is with those if de

jure officer

[d]

one who is in possession of an office in theopen exercise of its functions under colorof an election or an appointment, eventhough such election or appointment maybe irregular

may have reputation of being an officer heassumes to be but is not a good office inthe point of law

appointment is valid on its face

one who continues in the exercise of the

functions and duties of the office withoutlegal authority or after his term or title hasended

one who performs the functions of theofficer in good faith and under color ofright to the position involved

policy and purpose

o protection of the public andindividuals insofar as theybecome involved in the officialacts of person discharging the

duties of an office withoutbeing lawful officers

Sampayan vs Daza

ITC, congressman was a greencard holder and didnot renounce his status as a permanent residentof US

Appropriate remedy was to cancel COC or quowarranto

But term already expired

As de facto officers, he cannot be madeto reimburse the funds disbursedduring his term of office because his actswere valid as those of a de jureofficer.

As de facto officer, he is entitled toemoluments for actual servicesrendered.

General Manager vs Monserate

In this respect, while petitioner Anino'sappointment to the contestedposition is void, as earlier discussed, heis nonetheless considered a de factoofficer during the period of hisincumbency.

A de facto officer is one who is inpossession of an office and who

openly exercises its functions undercolor of an appointment or election,even though such appointment orelection may be irregular.

In Monroy vs. Court of Appeals, this Courtruled that a rightful incumbent of apublic office may recover from a defacto officer the salary received bythe latter during the time of hiswrongful tenure, even though he (thede facto officer) occupied the office ingood faith and under color of title.

A de facto officer, not having a goodtitle, takes the salaries at his risk andmust, therefore, account to the de

jure officer for whatever salary hereceived during the period of hiswrongful tenure.

In the later case of Civil Liberties Union vs.Executive Secretary, this Court alloweda de facto officer to receiveemoluments for actual servicesrenderedbut only when there is no de

jure officer, thus:

". . . in cases where there is no de jureofficer, a de facto officer who, in goodfaith, has had possession of the officeand has discharged the dutiespertaining thereto, is legally entitledto the emoluments of the office, andmay in appropriate action recover thesalary, fees and other compensationsattached to the office."

In fine, the rule is that where there isa de jure officer, a de facto officer,during his wrongful incumbency, isnot entitled to the emolumentsattached to the office, even if heoccupied the office in good faith.

ITC: This rule, however, cannot be appliedsquarely on the present case in view of itspeculiar circumstances. Respondent hadassumed under protest the position ofAdministrative Officer sometime in thelatter part of 1988, which position she

currently holds.

Since then, she has been receiving theemoluments, salary and othercompensation attached to such office.While her assumption to said lowerposition and her acceptance of thecorresponding emoluments cannot beconsidered as an abandonment of herclaim to her rightful office (DivisionManager), she cannot recover full

15


16/46


backwages for the period when she wasunlawfully deprived thereof.

She is entitled only to backpay differentialsfor the period starting from herassumption as Administrative Officer up tothe time of her actual reinstatement to herrightful position as Division Manager. Suchbackpay differentials pertain to thedifference between the salary rates for the

positions of Manager II and AdministrativeOfficer. The same must be paid bypetitioner Anino corresponding from thetime he wrongfully assumed the contestedposition up to the time of his retirement onNovember 30, 1997.

C. WHO MAY BE PUBLIC OFFICERS:ELIGIBILITY AND QUALIFICATIONS

Qualification:

1. may refer to endowments, qualities or

attributes which make an individual eligible forpublic office (e.g. citizenship)

2. may refer to the act of entering into theperformance of the functions of public office(e.g. taking the oath of office)

C.1. WHO MAY PRESCRIBE QUALIFICATIONS

When the qualifications are prescribed bythe Constitution, they are generallyexclusive, except where the constitutionitself provides otherwise

Relative to public offices created bystatute, Congress has virtually plenarypowers to prescribe qualifications,provided that

o the qualifications are germane to

the objective/s for which thepublic office was created AND

o the qualifications are not too

specific as to fit a particular,

identifiable person because thatwould deprive the appointingauthority of discretion in theselection of the appointee

C.2. TIME OF POSSESSION OFQUAIFICATIONS

Must possess the qualifications AT THETIME OF APPOINTMENT or ELECTION

AND CONTINUOUSLY for as long as theofficial relationship continues

Frivaldo vs Comelec

LGC does not specify the date when thecandidate must possess Filipino citizenship

Philippine citizenship is required in order toensure that no alien shall govern ourpeople

An official BEGINS TO GOVERN ONLY UPONHIS PROCLAMATION AND ON THE DAY

THAT HIS TERM BEGINS

LGC speaks of qualifications of electiveofficials and not of candidates

Loss of any qualifications duringincumbency will be a ground fortermination

Under Sec. 39 of the Local GovernmentCode, "(a)n elective local official must be:

a citizen of the Philippines;

a registered voter in the barangay,municipality, city, or province . . . wherehe intends to be elected;

a resident therein for at least one (1) yearimmediately preceding the day of theelection;

able to read and write Filipino or any otherlocal language or dialect."

In addition, "candidates for the position ofgovernor . . . must be at least twenty-three(23) years of age on election day."

From the above, it will be noted that thelaw does not specify any particulardate or time when the candidate mustpossess citizenship, unlike that for

residence (which must consist of at leastone year's residency immediatelypreceding the day of election) and age (atleast twenty three years of age on electionday).

Philippine citizenship is anindispensable requirement for holdingan elective public office, and the purposeof the citizenship qualification is noneother than to ensure that no alien, i.e.,no person owing allegiance toanother nation, shall govern our

people and our country or a unit ofterritory thereof.

Now, an official begins to govern or todischarge his functions only upon hisproclamation and on the day the lawmandates his term of office to begin.

ITC: Since Frivaldo re-assumed hiscitizenship on June 30, 1995 thevery day the term of office ofgovernor (and other elective officials)began he was therefore alreadyqualified to be proclaimed, to holdsuch office and to discharge thefunctions and responsibilities thereofas of said date.

In short, at that time, he was alreadyqualified to govern his native Sorsogon.

This is the liberal interpretation that shouldgive spirit, life and meaning to our law onqualifications consistent with the purpose

16


17/46


for which such law was enacted. So too,even from a literal (as distinguished fromliberal) construction,

it should be noted that Section 39 of theLocal Government Code speaks of"Qualifications" of "ELECTIVEOFFICIALS", not of candidates. Whythen should such qualification be requiredat the time of election or at the time of thefiling of the certificates of candidacies, asLee insists?

Literally, such qualifications unlessotherwise expressly conditioned, as in thecase of age and residence should thusbe possessed when the "elective [orelected] official" begins to govern,i.e., at the time he is proclaimed andat the start of his term in this case,on June 30, 1995. Paraphrasing this Court'sruling in Vasquez vs. Giap and Li Seng

Giap & Sons, 33 if the

purpose of the citizenship requirement isto ensure that our people and country donot end up being governed by aliens, i.e.,persons owing allegiance to anothernation, that aim or purpose would not bethwarted but instead achieved byconstruing the citizenship qualification asapplying to the time of proclamation of theelected official and at the start of his term.

But perhaps the more difficult objection

was the one raised during the oralargument 34 to the effect that thecitizenship qualification should bepossessed at the time the candidate (or forthat matter the elected official) registeredas a voter. After all, Section 39, apart fromrequiring the official to be a citizen, alsospecifies as another item of qualification,that he be a "registered voter". And, underthe law 35 a "voter" must be a citizen ofthe Philippines. So therefore, Frivaldocould not have been a voter much less avalidly registered one if he was not a

citizen at the time of such registration.

The answer to this problem again lies indiscerning the purpose of the requirement.If the law intended the citizenshipqualification to be possessed prior toelection consistent with therequirement of being a registeredvoter, then it would not have madecitizenship a SEPARATE qualification.

The law abhors a redundancy.

It therefore stands to reason that the

law intended CITIZENSHIP to be aqualification distinct from being aVOTER, even if being a voterpresumes being a citizen first.

It also stands to reason that the voterrequirement was included as anotherqualification (aside from "citizenship"), notto reiterate the need for nationality but torequire that the official be registered as avoter IN THE AREA OR TERRITORY he

seeks to govern, i.e., the law states: "aregistered voter in the barangay,municipality, city, or province . . . wherehe intends to be elected." It should beemphasized that the Local GovernmentCode requires an elective official to be aregistered voter. It does not require him tovote actually. Hence, registration notthe actual voting is the core of this"qualification". In other words, the

law's purpose in this secondrequirement is to ensure that theprospective official is actuallyregistered in the area he seeks togovern and not anywhere else.

Before this Court, Frivaldo has repeatedlyemphasized and Lee has not disputed that he "was and is a registered voter ofSorsogon, and his registration as a voterhas been sustained as valid by judicialdeclaration . . . In fact, he cast his vote inhis precinct on May 8, 1995."

another reason why the prime issue ofcitizenship should be reckoned from thedate of proclamation, not necessarily thedate of election or date of filing of thecertificate of candidacy

Section 253 of the Omnibus Election Code38 gives any voter, presumably includingthe defeated candidate, the opportunity toquestion the ELIGIBILITY (or the disloyalty)of a candidate. This is the only provision ofthe Code that authorizes a remedy on how

to contest before the Comelec anincumbent's ineligibility arising fromfailure to meet the qualificationsenumerated under Sec. 39 of the LocalGovernment Code. Such remedy of QuoWarranto can be availed of "within tendays after proclamation" of the winningcandidate. Hence, it is only at such timethat the issue of ineligibility may be takencognizance of by the Commission. Andsince, at the very moment of Lee'sproclamation (8:30 p.m., June 30, 1995),

Juan G. Frivaldo was already and

indubitably a citizen, having taken his oathof allegiance earlier in the afternoon of thesame day, then he should have been thecandidate proclaimed as heunquestionably garnered the highestnumber of votes in the immediatelypreceding elections and such oath hadalready cured his previous "judicially-declared" alienage. Hence, at such time,he was no longer ineligible.

But to remove all doubts on thisimportant issue, we also hold that the

repatriation of Frivaldo RETROACTEDto the date of the filing of hisapplication on August 17, 1994.(curative/ remedial in nature; whencreate new rights)

Indeed, decisions declaring the acquisitionor denial of citizenship cannot govern aperson's future status with finality. This isbecause a person may subsequentlyreacquire, or for that matter lose, his

17


18/46


citizenship under any of the modesrecognized by law for the purpose. Hence,in Lee vs. Commissioner of Immigration,56 we held:

"Everytime the citizenship of a person ismaterial or indispensable in a judicial oradministrative case, whatever thecorresponding court or administrativeauthority decides therein as to such

citizenship is generally not considered resjudicata, hence it has to be threshed outagain and again, as the occasiondemands."

In sum, we rule that the citizenshiprequirement in the Local GovernmentCode is to be possessed by anelective official at the latestas of thetime he is proclaimed and at the startof the term of office to which he hasbeen elected

C.3. USUAL QUALIFICATIONS

Art. 6, Sec 2 & 6

Senate

o 24 senators elected at large by

qualified voters of the Philippinesas may be provided by law

House of Representatives

o

Natural born citizen of thePhilippines

o At least 25 years of age on the day

of election

o Able to read and write

o Except the party list

representatives, a registered voterin the district in which he shall beelected

o Resident thereof for a period of notless than one year immediatelypreceding the day of the election

Art. 7, Sec 2,3

President

o Natural born citizen of the

Philippines

o Registered voter

o Able to read and write

o At least 40 years of age on the day

of election

o A resident of the Philippines for at

least ten years immediatelypreceding such election

Vice president

o Same qualifications and term of

office and be elected with and inthe same manner as the president

o May be removed from office in the

same manner as the president

o May be appointed as a member of

the cabinet and such appointmentrequires no confirmation

Art 9, B, C, Sec 1(1)

Civil Service Commission

o Chairman and 2 commissioners

o Natural born citizens of the

Philippines

o At least 35 years of age at the time

of their appointment

o With proven capacity for public

administration

o Must not have been candidates for

any elective position in theelections immediately precedingtheir appointment

o Appointed by the president with the

consent of the commission onappointments

o Term of 7 years w/o reappointment

o Chairman 7 years, a commissioner

for 5 years and another for 3 years

o No member shall be appointed/

designated in a temporary or actingcapacity

COMELEC

o Chairman and 6 commissioners

o Natural born citizens of thePhilippines

o At least 35 years of age at the time

of their appointment

o Holders of a college degree

o Must not have been candidates for

any elective position in theimmediately preceding elections

o A majority including the chairman

shall be members of the Philippinebar who have been engaged in thepractice of law for at least 10 years

o Appointed by the president with the

consent of the commission onappointments

Sec 22, Book V, E.0. 292

Art 3, Sec 5

18


19/46


No law shall be made respecting anestablishment of religion or prohibiting thefree exercise thereof

Free exercise and enjoyment of religiousprofession and worship w/o discriminationor preference shall forever be allowed

No religious test shall be required forthe exercise of civil or political rights

Maquera vs Borra

Property qualifications may not beimposed for the exercise of the right to runfor public office

The law is declared unconstitutional forrequiring each candidate to post a bond ofP20,000 upon the filing of COC, subject toforfeiture if he did not obtain at least 10%of the total votes cast in the constituencywhere he ran

Republic Act NO. 4421 requires acandidate to post a surety bond equivalentto one-year salary of the position to whichhe is a candidate, which bond shall beforfeited in favor of the government, if thecandidate, except when declared winner,fails to obtain at least 10% of the votescast for the office, there being not morethan four candidates for the same office.

The effect of said Republic Act No. 4421 isto impose property qualifications in orderthat a person could run for a public office,which property qualifications areinconsistent with the nature and essenceof the Republican system ordained in theConstitution and the principle of social

justice underlying the same. Consequently,Republic Act No. 4421 is unconstitutionaland hence null and void.

That the effect of said Republic Act No.4421:

o to prevent or disqualify from

running for President, Vice-President, Senator or Member ofthe House of Representatives thosepersons who, although having thequalifications prescribed by theConstitution therefor, cannot filethe surety bondaforementioned, owing tofailure to pay the premiumcharged by the bondingcompany and/or lack of theproperty necessary for saidcounterbond;

o disqualifying for provincial, city or

municipal elective offices, personswho, although possessing thequalifications prescribed by lawtherefor, cannot pay said premiumand/or do not have the propertyessential for the aforementionedcounter-bond;

o imposing property qualifications in

order that a person could run for a

public office and that the peoplecould validly vote for him;

property qualifications are inconsistentwith the nature and essence of theRepublican system ordained in ourConstitution and the principle of social

justice underlying the same, for saidpolitical system is premised upon the tenetthat sovereignty resides in the people and

all government authority emanates fromthem, and this, in turn, implies necessarilythat the right to vote and to be voted forshall not be dependent upon the wealth ofthe individual concerned

SJS vs Dangerous Drugs

In the same vein, the COMELEC cannot, inthe guise of enforcing and administeringelection laws or promulgating rules andregulations to implement Sec. 36 (g),validly impose qualifications oncandidates for senator in addition towhat the Constitution prescribes.

If Congress cannot require a candidate forsenator to meet such additionalqualification, the COMELEC, to be sure, isalso without such power. The right of acitizen in the democratic process ofelection should not be defeated byunwarranted impositions of requirementnot otherwise specified in the Constitution.

Sec. 36 (g) of RA 9165, as sought to beimplemented by the assailed COMELECresolution, effectively enlarges thequalification requirements enumerated inthe Sec. 3, Art. VI of the Constitution. Ascouched, said Sec. 36 (g) unmistakablyrequires a candidate for senator to becertified illegal-drug clean, obviously as apre-condition to the validity of a certificateof candidacy for senator or, with likeeffect, a condition sine qua non to bevoted upon and, if proper, be proclaimedas senator-elect. The COMELEC resolutioncompletes the chain with the proviso that"[n]o person elected to any public officeshall enter upon the duties of his officeuntil he has undergone mandatory drugtest". Viewed, therefore, in its propercontext, Sec. 36 (g) of RA 9165 and theimplementing COMELEC Resolution addanother qualification layer to what the1987 Constitution, at the minimum,requires for membership in the Senate.Whether or not the drug-free bar set upunder the challenged provision is to behurdled before or after election is really ofno moment, as getting elected would be of

little value if one cannot assume office fornon-compliance with the drug-testingrequirement.

It ought to be made abundantly clear,however, that the unconstitutionalityof Sec. 36 (g) of RA 9165 is rooted onits having infringed the constitutionalprovision defining the qualification oreligibility requirements for one

19


20/46


aspiring to run for and serve assenator.

Taking into account the foregoingfactors, i.e., the reduced expectationof privacy on the part of theemployees, the compelling stateconcern likely to be met by thesearch, and the well-defined limits setforth in the law to properly guide

authorities in the conduct of therandom testing, we hold that thechallenged drug test requirement is,under the limited context of the case,reasonable and, ergo, constitutional.

Like their counterparts in the privatesector, government officials andemployees also labor underreasonable supervision andrestrictions imposed by the CivilService law and other laws on publicofficers, all enacted to promote a high

standard of ethics in the publicservice. 37 And if RA 9165 passes thenorm of reasonableness for privateemployees, the more reason that itshould pass the test for civil servants,who, by constitutional command, arerequired to be accountable at alltimes to the people and to serve themwith utmost responsibility andefficiency.

C.4. DISQUALIFICATIONS

c.4.1 under the constitution

No candidat

elections reviewer for midterms

Documents