Elections Midterm Transcript 2014

ELECTIONS | Midterms Transcript 2014 By RLB

- Whether he had contracted the habit for any of the enumerated misdemeanours.

PUBLIC OFFICE Art. 11, Sec. 1 of the 1987 Constitution (Accountability of Public Officers) – Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.

Purpose of Discipline Remolona vs CSC Dishonesty as ground for dismissal need not be committed in the performance of duty. If a public offcier or employee is dishonsst or is guilty of oppression or grave misconduct, he or she may be dismissed. Even if said defects of character are not connected with his or her office, they affect his or her right to continue in office. The purpose of discipline is not to punish but to improve public service and preserve public confidence in government. ! !

Is there a difference between integirty and honesty? For example, if you cheat on you girlfriend last night, then the following day you told o your girlfriend that you cheated on her last night. –that’s being honest. But the truth negates your integrity. On other words, when you say that this person has integirty, this person does good even if no one is looking. Okay? It applies to you (referring to us) when you take the exam…mmmmmhhhh si sir pahisgot..

-

•

!

!

!

o

Public Office Is A Public Trust Cornejo vs Gabriel Mayor Cornejo was suspended by Governor and Prov’l Board. So he said he was denied of an office without due process. Due process cannot be invoked in administrative cases. Public office is not a property so not covered by due process. Power to suspend may be exercised without notice to person suspended. Suspension is not removal from office—merely prevents the person from functioning his office. This is universally accepted as fair and necessary.

!

!

!

!

!

!

• •

At All Times Be Accountable To The People Social Justice Society vs DDB Random drug test on private and public employees was challenged as unconstitutional because it violates the right of privacy SC said that for private employees, their right to privacy is inferior to the right of thr employer to maintain discipline and efficiency in the workplace. If so, with more reason that civil servants cannot invoke the right to privacy because the constitutional command, they are requried to be accountable at all times to the people and serve them with utmost responsibilty and efficiency. !

But A Resigned Public Officer Cannot Be Subject To Discipline Because It Does Not Serve Its Purpose Ombudsman vs Andutan It is error to interpret CSC MC No. 38 that administrative case may be filed against a resigned public officer for as long as the act complained of was committed in service. Otherwise, public officers who have long been separated from service may still be subject of administrative cases. This defeats the purpose of discipline, which is not to punish, but to improve public service and preserve public trust in government.

Lead Modest Lives - The point of the command is that, even if the public officer is independently wealthy, he should not live in a manner that flaunts his wealth. (Bernas) WHAT IS IN EXCESS OF WHAT YOU NEED IS NOT YOURS o So those excess pounds DO NOT BELONG TO YO U… " nice one sir! -

!

!

•

Utmost Responsibility, Integrity, Loyalty and Efficiency (RILE) Concerned Citizens of Laoag City vs Arzaga Arzaga and Mauricio were charged with drunkenness, gambling, bribery, etc. Both were process servers of office of clerk of court. Allegedly, they asked for tires and liters of gas from clients and pretend that it’s the judge who asked those things. Mauricio was dismissed for being ultimate undesirable employee and a disgrace to the judiciary. A court employee being a public servant must exhibit the highest sense of honesty and integrity not only in the performance of his duties but also in his personal and private dealings with other people to preserve the court’s name and standing. It becomes imperative and sacred duty of each and everyone in the court to maintain its good name and standing as a true temple of justice. SC said that an employee may be dismissed for being notoriously undesirable if it involves prviate and personal acts. As a public servant, a court employee must exhibit not only in the highest sense of honesty and integrity not only in the performance of his official duties but also in his private dealings with other people to preserve the court’s name and standing.

DEFINITION (by Mechem) A public office is the right, authority and duty created and conferred by law for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with sovereign functions to be exercised by him for the benefit of the public. •

!

!

!

!

!

!

!

Conviction of Criminal Offenses is Not Even Necessary for Removal San Luis vs CA Notoriety and habit are sufficient ground for removal pursuant to the 2-fold test: - Whether it is generally known as universally believed to be true or manifest to the world that the public officer committed the acts imputed against him. !

Enduring At The Pleasure Of The Creating Power Fernandez vs Ledesma If the term of office for which the chief of police was appointed is not fixed pursunat to the city charter, it is dependent upon the discretion or pleasure of the appointing power. Thus, the chief of police may be replaced and such replacement does not amount to removal but expiration of his tenure. It is one of the ordinary modes of terminating official relations.

!

•

Sovereign Functions To Be Exercised By Him For The Benefit Of The Public Laurel vs Desierto Chairmanship of the National Centennial Commission to take charge of the centennial celebrations.

!

Javier vs SB Appointment as private sector representative to the National Book Development Board which is aimed to promote continuing development of the book publishing industry.

!

Serana vs SB Appointment as student regent at the University of the Philippines performing general administrative supervision and exercising corporate powers.

!

ELEMENTS of a PUBLIC OFFICE (State vs Hawkins, cited by Martin )


1) 2) 3) 4) 5)

It must be created by law or an ordinance authorized by law; It must be invested with some sovereign functions of government to be exercised for public interest; The functions must be defined, expressly or impliedly by law; The function must be exercised directl y by an offcier under the control of the law; It must have some permanency or continuity, not temporary or occasional. However take note that in the case of Laurel vs Desierto, the SC said that permanency is not important, as long as you are delegated with sovereign function of the government . That’s the most important characteristic of a public offce. That controls whether or not you occupy a public office, even if the other elements are not present, you are still considered a public officer.

CHARACTERISTICS of a PUBLIC OFFICE A. Public office is a public trust B. No one has a vested right to a public office C. Public office is not a property D. Public office cannot be inherited A. Public Office Is A Public Trust Cornejo vs Gabriel It is created in the interest and for the benefit of the public. The officers are public servants. They are mere agents and not rulers of the people. As such, they have no contractual or proprietary right to an office. They merely hold it in trust for the people. B. No One Has A Vested Right To A Public Office A public officer cannot claim injury if placed under preventive suspension because he has no vested or absolute right to a public office. Carabeo vs CA Suspension of a public officer without prior notice and hearing does not violate due process because he has no proprietary or contractual right to it. Cornejo vs Gabriel More so if the appointment does not specify the station, the employee mayb be reassigned if exigency requires, provided it does not reduce rank, status or salary. Fernandez vs Sto. Tomas EXCEPT: if the terms of the law that takes it away is UNCLEAR Segovia vs Noel Segovia is appointed Justice of Peace but later, a law was passed that justuces shall be appointed to serve until they reach 65 only. When he reached 65 y/o, Noel replaced him. SC said: the law must be applied prospectively only. Even if he has no vested right to the office, he has some right that cannot be taken away by law which terms are unclear.

!

!

C. Public Office Is Not A Property Abeja vs Tañada During pendency of an election protest, the protestee died. He was substituted by his widow to pursue his counterclaim for damages. SC said: The substitution is not proper. Public office is personal to the incumbent and is not a property which passes to his heirs. !

!

Cornejo vs Gabriel A municipal president was suspended by the governor while his administrative case for misconduct was pending without opportunity to be heard. SC said: Prior notice and hearing is not a requisite to suspension because the holder has no proprietary and contractual interest on a public office.

!

!

EXCEPT: When the issue is which of the two persons is entitled to the public office Segovia vs Noel In which case, a public office may be considered property within the protection of the due process clause. That if one is deprived of title to the office, it should be properly litigated before the courts.

!

!

D. Public Office Cannot Be Inherited Substitution is not proper. Public office is personal to the holder and is not a property that can be inherited by his heirs. Abeja vs Tañada

PUBLIC OFFICER DEFINITION Sec. 2(b), Anti-Graft and Corrupt Practices Act – "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the preceding subparagraph. Serana vs SB A student regent charged with estafa argues she is not a public offcier because she is a mere student who paid her tuition and did not receive salarry as such. SC said: Compensation is not essential to a public office, but a mere incident to it.

!

!

Laurel vs Desierto Laurel chaired NCC to take charge of the National Centennial Celebrations. He was charfed with graft and corruption due to contractual anomalies He argues he is not a public officer because he did not receive salary as such which is a characteristic of a public officer SC said: While salary is a usual criterion to determine the nature of the position, it is not necessary because it is a mere incident and forms no part of the office.

!

!

!

Mechem – An individual with a public office. Section 2, Administrative Code of 1987 "Officer" as distinguished from "clerk" or "employee", 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. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, "officer" includes any government employee, agent or body having authority to do the act or exercise that function.

"Employee" when used with reference to a person in the public service, includes any person in the service of the government or any of its agencies, divisions, subdivisions or instrumentalities. Article 203, Revised Penal Code Who are public officers. — For the purpose of applying the provisions of this and the preceding titles of this book, 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, of 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, shall be deemed to be a public officer. ELEMENTS of a PUBLIC OFFICER (Reyes) (Reyes)


To be a public officer, one must be – 1) Taking part in the performance of public functions in the government, or performing in said government any of its branches public duties as an employee, agent, or subordinate official, of any rank or class, and 2) That his authority to take part in the performance of public functions or to perform public duties must be by: a) Direct provision of law, b) Popular election and c) Appointment by competent authority •

Delegation Of Sovereign Functions Is The Most Important Characteristic Of A Public Office Laurel vs Desierto Laurel argues he is not a public officer because the NCC is a private temporary office, he was not paid salary for it, and did not take his oath of office. SC said: Even if the other characteristics are missing, he is still considered public officer because he was delegated with sovereign functions, the controlling characteristic of a public officer. !

!

EXCEPT: when in the first place, there is no authority to appoint a private person as public officer Azarcon vs SB Azarcon was designated by the BIR as custodian of distrained property, one of which was a truch that suddenly disappeared. He was charged before the Sandiganbayan which jurisdiction he now assails for being a private person. SC said: Azarcon is a private person. While the NIRC authorizes designation of a custodian, it does not include the power to appoint him as a public officer. !

!

EXCEPTION to the EXCEPTION: when a private person is charged as coprincipal, accomplice or accessory of a public officer charged with a crime under the jurisdiction of the Sandiganbayan Go vs SB Go is chairman of PIATCO. He was charged in conspiracy with a public officer in violating Section 3(g) of the Anti-Graft and Corrupt Practices Act. Go says section 3(g) does not apply to him because he is not a public officer but a private person who could not enter into a contract in behalf of the government. The elements of Section 3(g) are: that the accused is a public officer, that he entered into a contract or transaction in behalf of the government, and that it is grossly and manifestly disadvantageous to it SC said: when a private person is charged in conspiracy with a public officer, either as co-principal, accomplice or accessory, he is also considered a public officer for purposes of acquiring jurisdiction over his person by the Sandiganbayan. !

-

Those whose duties relate mainly to the enactment of laws

Judicial Officers Those whose duties are to decide controversies between individuals and accusations made in the name of the public against persons charged with a violation of a law Ministerial Officers Those whose duty is to execute the mandate, lawfully issued, of their superiors Military Officers Those who are in command in the army Naval Officers Those who are in command in the navy Civil Officer One who holds his appointment under the government, whether his duties are executive or judicial, i n the highest or the lowest departments of the government, with the exception of officers of the army and the navy Special Agent One who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office Officer De Jure One who has the lawful right to the office in all respects, but who has either been ousted from it, or who has never actually taken possession of it. Officer De Facto One who has the reputation of being the officer he assumes to be, and yet is not the officer in point of law National Officer Those who render service for the provincial government Provincial Officer Those who render service for the provincial government -

!

City and Municipal Officer Those who render service for the city and municipal governments, respectively. •

!

KINDS OF PUBLIC OFFICERS CLASSIFICATIONS of PUBLIC OFFICERS (Mechem )

Executive Officers Those whose duties are mainly to cause the laws to be executed. Legislative Officers

•

Requisites to be considered a DE FACTO OFFICER: a) Necessity of office There must be a created office. No de jure or de facto officer without the office to fill b) Colour of title General recognition and reputation May consist in election or appointment Holding office after expiration of term Acquiescence by the public in the acts of officer for such length of time as to raise presumption of colourable right c) Physical possession De factor officer is entitled to compesation Sampayan vs Daza

ELECTIONS | Midterms Transcript 2014 By RLB !

!

Sampayan and other residents sought to disqaulify Daza as Congressman because he is a green card holder. But his term of office already expired prior to his qualification. SC said: a de facto officer cannot be made to reimburse funds and salaries because his acts are valid as those of a de hure officer. He is also entitled to emoluments for actual services rendered. EXCEPT: where there is a sitting de jure officer General Manager of PPA vs Monserate The general rule us where there is a de jure officer, the de facto officer is not entitled to emoluments attached to the office during his wronggul incumbency even if he occupied it in good faith. But where the de jure officer assumed the lower position in protest, she is entitled to salary but limited to back pay differentials to avoid double compensation. !

!

ELIGIBILTY and QUALIFICATIONS

-

For appointive positions only

v.Civil Service Required in appointive positions Civil service eligible is prioritized over a non-eligible for appointment to any vacant position even in a temporary capacity •

When should a public officer possess qualifications? It depends upon the Constitution or statute But generally, at the time of election, appointment or assumption If qualification is not specified with reference to the time of elections, it refers to qualification to hold office rather than to be elected to it Thus, disqualification existing at the time of election may be removed before induction to office or before the term of office begins Frivaldo vs Comelec Frivaldo won as governor but was disqualified by Comelec for being an alien. Thus, Lee was proclaimed at 8:30pm on June 30, 1995. But at 2pm of the same day, Frivaldo re-acquired his Philippine citizenship Lee’s contention: Even if Frivaldo re-acquried his citizenship, he is still disqualified because citizenship is a condition precedent to filing of candidacy SC held: Citizenship is required only at the time of proclamation and at the start of term of office. !

Qualification (definition) Endowment that fits one for office Act which a person is required by law to do before assuming office like oath taking There must be rational connection between requirements and duties -

!

!

Who Prescribes Qualifications? Congress prescribes eligibility, qualifications, disqualifications and provide for methods of filling offices, subject to constitutional limitations

!

Qualifications for PRESIDENT Article 7, Section 2, 1987 Constitution Section 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election.

!

Qualifications for VICE-PRESIDENT Art. 7, Sec. 3, 1987 Consti Section 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected with, and in the same manner, as the President. He may be removed from office in the same manner as the President.

!

Qualifications for SENATOR Art. 6, Sec. 2, 1987 Consti Section 2. The Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law.

!

Qualifications for HOUSE REPRESENTATIVE Art. 6, Sec. 6, 1987 Consti Section 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election.

!

Qualifications for CIVIL SERVICE COMMISSION Article 9(b), Section 1(1), 1987 Consti B. THE CIVIL SERVICE COMMISSION

GENERAL QUALIFICATIONS: i.Citizenship Only citizens can apply or take civil service examinations Aliens cannot hold office, either appointive or elective -

ii.Residence Synonymous with domicile Imports intention to reside in one place Personal presence in that place Conduct indicative of such intention !

!

!

President and Vice-President Resident of the Philippines for at least 10 years immediately preceding the elections Senator Resident of the Philippines for at least 2 years immediately preceding the elections Congressman Resident of the district for at least 1 year immediately preceding the elections except the party-list representatives

iii. Age ! ! !

iv.Education

President and VP 40 Senator 35 Congressman 25 -


Section 1. (1) The civil service shall be administered by the Civil Service Commission composed of a Chairman and two Commissioners who shall be naturalborn citizens of the Philippines and, at the time of their appointment, at least thirtyfive years of age, with proven capacity for public administration, and must not have been candidates for any elective position in the elections immediately preceding their appointment. !

!

!

!

Qualifications for COMMISSION ON ELECTIONS Article 9(b), Section 1(1), 1987 Consti C. THE COMMISSION ON ELECTIONS Section 1. (1) There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elective positions in the immediately preceding elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. Qualifications for Offices in the Commission Sec. 22, Book V, E.O. 292 (Admin Code) SECTION 22. Qualification Standards. — (1) A qualification standard expresses the minimum requirements for a class of positions in terms of education, training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. The degree of qualifications of an officer or employee shall be determined by the appointing authority on the basis of the qualification standard for the particular position.

Qualification standards shall be used as basis for civil service examinations for positions in the career service, as guides in appointment and other personnel actions, in the adjudication of protested appointments, in determining training needs, and as aid in the inspection and audit of the agencies' personnel work programs.

Maquera vs Borra RA 4421 requires all candidates to post surety bond equivalent to 1 year salary of the position sought. Thus, the Comelec required candidates for president, vice-presidnet, senators and congressmen to post surety bond from a surety company acceptable to it in the amount of P60,000, P40,000 and P32,000, respectively. SC said: It constitutes property qualification which is contrary to the Constitution. It is inconsistent with the Republican system and the principle of social justice. !

!

DISQUALIFICATIONS Conviction of the crime of malversati on of public funds Impeachment Being an ecclesiastic Congress cannot add disqualifications than what is provided for in the Constitution Property in the form of cash bond Maquera vs Borra Lifestyle in the form of negative drug test Pimental vs Comelec •

Effects Of Pardon Under The RPC Art. 36. Pardon; its effect. — A pardon shall not work the r estoration of t he right to hold publ ic office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

It shall be administered in such manner as to continually provide incentives to officers and employees towards professional growth and foster the career system in the government service.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. •

(2)The establishment, administration and maintenance of qualification standards shall be the responsibility of the department or agency, with the assistance and approval of the Civil Service Commission and in consultation with the Wage and Position Classification Office. ART. 3, Sec. 5, 1987 Consti Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

May 10, 2004 national and local elections. It further says no person elected to any public office assumes office without mandatory drug test Petitioner’s contention: Pimentel, a candidate for senator, says the law dn resolution are unconstitutional because they add to the senatorial qualifications set forth in Article 6, Section 3, 1987 Constitution SC held: Section 36(g) of the Dangerous Drugs Act of 2002 and Comelec Resolution No. 6486 are both unconstitutionla because they infringe on the constiutional definition of qualification or eligibilty requirements of senatorial candidates.

Pardon Does Not Automatically Reinstate, It Merely Restores Eligibility For Appointment Monsanto vs Factoran An Assistant Treasurer was convicted for estafa and ordered to pay at least P 4,000. She moved to reconsider her conviction during which she was extended absolute presidential pardon which she accepted. She thus argued that the pardon wiped out her crime and she should be reinstated without need to re-apply and be paid full back wages. She also refused to pay the fine. SC said: Pardon does not ipso facto restore a convicted felon to the office necessarily relinquished or forfeited by reason of conviction although it restores her eligibility for appointment to that office. Pardon merely removed her disqualification. She must re-apply. That her conviction did not acquire finality when she was extended pardon is of no moment because pardon presupposes a crime was committed. !

!

!

!

Pimentel vs Comelec Section 36(g) of the Dangerous Drugs Act of 2002 requires all candidates for public office whether appointed or elected both in the national or local government to undergo a mandatory drug test The Comelec issued a resolution prescribing the rules and regulations on the mandatory drug testing of candidates for public office in connection with the !

!

EXCEPT: when acquittal is based on innocence Garcia vs COA Chairman


!

Garcia was administratively charged with dishonesty and criminally charged with qualified theft due to loss of telegraph poles. But he was acquitted based on innocence in the criminal case. SC held: if acquittal in criminal case is based on innocence, acquittal in administrative case should follow. Thus, he should be reinstated and paid back wages because the separation is void.

Santiago Jr. vs CSC The Customs Collector I was promoted as Custom Collector III. So the Custom Collector II protested on the ground that he was the person next-in-rank. SC said: it is not mandatory that the person next-in-rank is entitled to promotion, it only means he is the first to be considered. !

!

•

APPOINTMENT •

Authority Of The CSC To Approve Ap pointment Is Limited To Inquiry Central Bank vs CSC The CSC voided the appointment of Jordan and replaced him with Borja who it considers more qualified. SC ruled that the authority of the CSC is limited to determine whether the appointee possesses appropriate civil service eligibility and other qualifications because the authority to inquire qualification does not include the power to replace the choice of the appointing authority as it constitutes encroachment.

!

!

!

!

Next-in-rank Rule applies only to promotions Panis vs CSC The positions of permanent public health workers were abolished and new positions were created. Pursuant to the next-in-rank, they insist appointment to the available positions after the reorganization, not the new applicants. SC said: the next-in-rank rule specifically applies only to promotions and not to positions created in the course of a valid reorganization.

•

Appointment is not complete if the appointee refuses to accept and assume the office Borromeo vs Mariano A judge of one judicial district was appointed to another judicial district but he refused. Despite his refusal, another was appointed in his orginal district. SC held: Appointment is the sole act of the appointing authority while acceptance is the sole act of the appointee. Without acceptance in the form of assumption, the appointment is not complete. !

!

•

Even If There Is Evidence One Possesses Better Qualification Than The Other Lapinid vs CSC The CSC replaced Lapinid with Junsay because the comparative evaluation sheets show Lapinid got 75 while Junsay got 79.5. SC said: Appointment is discretionary on the part of the appointing authority. The authority of the CSC is limited only to inquire whether the appointee possesses qualifications required by law. If the appointee does possess the qualification required by law, the CSC has no other choice but approve the appointment. !

!

!

•

Preventive suspension does not require prior notice and hearing because it is not a penalty Carabeo vs CA Carabeo was OIC Treasurer of Parañaque who was charged with unexplained wealth which was not declared in his SALN by reason of which he was placed under preventive suspension without prior notice and hearing. SC held: Prior notice and hearing are not required in preventive suspension because it is not a penalty but a mere preliminary step in investigation. !

! •

The Duration Of Authority Of The CSC Terminates After The Inquiry Luego vs CSC If the CSC finds the appointee is qualified, it must approve. Otherwise, it disapproves. It becomes functus officio— an officer or agency whose mandate ended because the date expired and the purpose for which it was created was accomplished. It mostly refers to lack of authority to rehear a case after it has rendered judgement, theya re “void of office”. ! !

!

•

Appointment and Designa tion are separate and distinct Sevilla vs Santos Sevilla was an engineer of one city, but he was also designated Acting City Engineer of another city. Later, another was appointed in a permanent capacity to the position he was designated. Can he challenge the permanent appointment? SC held: No. His designation in an acting capacity merely added his functions. It does not confer security of tenure. !

! !

POWERS, DUTIES, PRIVILIEGES AND PROHIBITIONS OF A PUBLIC OFFICER SOURCE OF POWER Article 2, Section 1, 1987 Constitution Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. •

Scope of authority includes all powers necessary for the effective exercise of express powers pursuant to the Doctine of Necessary Implication Lo Cham vs Ocampo A lawyer of the DOJ detailed by the Justice Secretary to assist the city fiscal with the same powers and functions of an assistant city fiscal investigated, signed and filed information sheets. The respondents moved to quash on the ground of lack of authority SC held: The power to investigate, file and prosecute criminal cases is inherent in the right to assist. The duties of a public officer include all those: Which truly lie within its scope; Essential to accomplish the amin purpose of the office; Relevant to accomplish the main purpose even if they are merely incidental and collateral. All related acts may be performed, if the law does not prohibit specific acts— Doctrine of Necessary Implication. !

!

EXCEPT: when the appointment is used in its general sense, it includes designation Santiago vs COA A retiree wanted to base his r etirement benefits on a desi gnated posi tion because the salary is higher. SC held: the law that sets the highest basic salary rate as basis for computation did not intend to distinguish between appointment and designation because it includes the highest salary rate compensation for substitutionary services or in an actin capacity. !

!

•

Next-in-rank Rule is discretionary on the part of the appointing authority

!

KINDS OF AUTHORITY

ELECTIONS | Midterms Transcript 2014 By RLB o

Discretionary (defined in Asuncion vs De Yriarte ) One where the law imposes a duty upon a public officer and gives him the right to decide how and when the duty shall be performed A faculty conferred upon a court or other official by which he may deci de the question either way and still be right Ministerial (defined in Lamb vs Phipps) One where its discharged by the officer concerned is imperative and required neither judgement nor discretion on his part.

•

Right To Compensation ! Salary Personal compensation provided to be paid to him for his services, and it is generally a fixed annual, or periodic payment depending on the time and not on the amount of services he may render. Salary is interchangeably used with compensation. !

•

A discretionary act cannot be compelled by ma ndamus Aprueba vs Ganzon A stal l was ordered closed by the mayor due to violations and arrears. The stall owner paid the arrears and complied with the conditions but the mayor still refused to re-open. SC said: the mayor cannot be compelled because the grant of business licenses is a discretionary act on his part in the exercise of police power and for reasons of public policy and sound public administration.

But again we said that compensation is not an element of a public office but a mere incident to it

Salary vs Wages Salary is given to officers of higher degree of employment than those to whom wages are given.

!

o

!

EXCEPT: where there -

-

!

is— Grave abuse of discretion Manifest injsutice Palpable excess of authority equivalent to denial of settled rights No other plain, adequate or speedy remedy

First Phil. Holdings vs SB A civil case between the PCGG and spouses Romualde and their dummies to recover shares of stock is pending with the SB. A company intervened, claiming ownership of the shares. But the intervention was denied because it will unduly delay the case, among others. SC said: the grant of intervention is a discretionary act iof the court that cannot be compelled by mandamus. But since the company established legal interest in the matter at litigation, the denial of intervention based on flimsy grounds amount to grave abuse of discretion. As such, mandamus lies against the discretionary act of granting or denying the motion to intervene.

How to establish right to compensation The officer must show that he is the officer de jure either by— Lawful appointment Election Qualification GM of PPA vs Monserate The general rule is where there is a de jure officer, the de facto officer is not entitled to the emoluments attached to the office during his wrongful incumbency, even if he occupied the office good faith. Exception is where the officer de jure assumed a lower position under protest, he is entitled to back pay differentials to avoid double compensation. SIR: The word “double compensation” was not used in the case but I just put it there because that is the necessary consequence. !

!

!

Sampayan vs Daza A de facto officer cannot be made to reimburse funds disbursed during his term of office because his acts are not valid as those of a de jure officer. As a defacto officer, he is also entitled to emoluments for actual services rendered provided there is no sitting de jure officer. SIR: Take note ha? SITTING de jure officer !

!

!

!

o

Constitutional Prohibitons on salaries Prohibition against self-serving legislation Article 6, Section 10 of the 1987 Constitution Section 10. The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and the House of Representatives approving such increase. !

NOTE: the writ is issued to compel the exercise of discretion, but not the discretion itself. RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS Right to office Right to compensation Presidential immunity from suit Doctrine of official immunity Preference in promotion Leave of absence Retirement pay •

Right To Office The right to office of an incumbent d oes not depend on any contract It creates no contractual relation between the holder and the public It exist by virtue of some law It generally entitles the holder to compensation -

!

!

Prohibition against self-serving approval Article 7, Section 6 of the 1987 Constitution Section 6. The President shall have an official residence. The salaries of the President and Vice-President shall be determined by law and shall not be decreased during their tenure. No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved. They shall not receive during their tenure any other emolument from the Government or any other source. Prohibition against violation of independence Article 8, Section 10 of the 1987 Constitution


Section 10. The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts, shall be fixed by law. During their continuance in office, their salary shall not be decreased. REASON: it might be used by Congress to influence them (judges and justices). o

Backwages are awarded for the period of suspension or dismissal if— (a) it is unjustified and (b) the employee is found innocent of the charge CSC vs Cruz Employee was suspended and dismissed for grave misconduct and dishonesty. But he was found innocent of the charges. The findings of dishonesty was downgraded to violation of reasonable office rule for failure to record attendance which is punishable by reprimand only. SC held: the 2 conditions for award of back wages are met. One, innocence. Two, suspension or dismissal is unjustified.

!

•

Preference In Promotion Taduran vs Civil Service Commission There is no mandatory nor peremptory requirement in law that persons next-inrank are entitled to preference in appointment. But they would be among the first to be considered for the vacancy, if qualified. If the vacancy is not filled by promotion, the same shall be filled by transfer or other modes of appointment. !

!

Presidential Immunity From Suit The 1987 Constitution has not reproduced the explicit guarantee of immunity under the previous constitution But the presidential immunity during tenure remains part of the law Once out of the office, even before the end of the term, immunity is lost Its purpose is to assure the exercise of presidential duties and functions is free from any hindrance or distraction because the president must devote undivided time and attention.

Leave Of Absence Sec. 284 and 285 of the Revised Admin Code amended by RA 2625 Sec. 284.After at least six months' continues faithful, and satisfactory service, the President or proper head of department, or the chief of office in the case of municipal employees may, in his discretion, grant to an employee or laborer, whether permanent or temporary, of the National Government, the provincial government, the government of a chartered city, of a municipality, of a municipal district or of government-owned or controlled corporations other than those mentioned in Section two hundred sixty-eight, two hundred seventy-one and two hundred seventy-four hereof, fifteen days vacation leave of absence with full pay, exclusive of Saturdays, Sundays and holidays, for each calendar year of service.

But the privilege may be invoked or waived by the president only Soliven vs Makasiar Cory Aquino filed a criminal case for libel against Beltran who wrote she hid under her bed at the height of the coup d’etat. Beltran argued she cannot file a criminal case during her incumbency because presidential immunity from suit includes disability to sue. SC said: privilege of immunity from suit pertains to the president alone by virtue of the office and may be invoked only by the holder of the office and not any other person in his or her behalf. So it is only the president who can say that “I will not file a suit”. She o can, if she likes and that’s what happened in the Cory Aquino cas e.

Sec. 285-A.In addition to the vacation leave provided in the two preceding sections each employee or laborer, whether permanent or temporary, of the National Government, the provincial government, the government of a chartered city, of a municipality or municipal district in any regularly and specially organized province, other than those mentioned in Section two hundred sixty-eight, two hundred seventy-one and two hundred seventy-four hereof, shall be entitled to fifteen days of sick leave for each year of service with full pay, exclusive of Saturdays, Sundays and holidays: Provided, That such sick leave will be granted by the President, Head of Department or independent office concerned, or the chief of office in case of municipal employees, only on account of sickness on the part of the employee or laborer concerned or of any member of his immediate family.

!

•

!

•

!

!

•

SC held: They acted within their authority pursuant to their honest interpretation of the ordinance. The error does not amount to bad faith hence they are not liable for damages. SIR: but what if the treasurer and the mayor were lawyers? Could they have acted STILL in good faith? Based on honest misinterpretation of the ordinance? THE ANSWER IS YOURS IN THE EXAM…hehe of course it’s not going to come out…(weeeh? Di nga??)

Doctrine Of Official Immunity Error in good faith is covered by immunity ! Farolan vs Solmac Imported film scrap was found to be an oriented fiber which importation is prohibited. Farolan withheld release, pending advice from the Bol which took years before it allowed release. Farolan was sued for damages because the delay caused him business losses. SC held: Farolan is not personally liable because he acted in good faith. Even if he erred, he is not liable because the damage did not result in injury to the importer.

!

Right to vacation leave At least 6 months continuous, faithful and satisfactory service Entitles the employee to 15 days vacation leave of absence with full pay, exclusive of Saturdays, Sundays and holidays. For each calendar year of service. -

!

Right to sick leave in addition to vacation leave At least 6 months continuous, faithful and satisfactory service Entitles the employee to 15 days sick leave of absence with full pay, exclusive of Saturdays, Sundays and holidays. For each calendar year of service. -

!

!

!

Honest mistake in the interpretation of ordinance is covered by immunity Tuason vs CA An ordinance authorized the treasurer to ask thresher operators who apply for permit to donate 1% of all threshed palay. Thus, he prepared an agreement. The operator who did not sign was refused payment of license fee and renewal of permit. It turned out however that the 1% is optional.

NOTE: on account of sickness of the employee or any member of his immediate family. So 30 days all-in-all in a year. And it is not only the EE who is suppose to o be sick but also the immediate members of his family.

!

•

Retirement Pay


Pension Regualr allowances paid to the retiree in consideration of services rendered or in recognition of merit, civil or military. Gratuity A donation, an act of pure liberality of the State. NOTE: Pension is an act of justice while gratuity is an act of generosity.

!

•

Section 3, Rule 131 of the RoC expressly provides that the presumption that official duty has been reguarly performed is satisfactory, if uncontradicted and overcome by other evidence. The presumption, however, is not abs olute.

It may be overcome by clear and convincing evidence to the contrary BPI vs Evangelista To overcome this presumption, clear and convincing evidence to the contrary must be presented. !

Santiago vs COA Retirement laws should be liberally construed in favor of the retiree because they are intended to provide sustenance for the retiree, and even comfort, when he no longer has the stamina to continue earning his livelihood. !

PROHIBITION FOR AND AGAINST PUBLIC OFFICERS Article IX-B, 1987 Constitution Section 2. (3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law.

Section 8. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government.

LIABILITIES OF A PUBLIC OFFICER Presumption Of Good Faith And Regularity In The Performance Of Duties This is a very good defense in many criminal cases, especially for police officers Farolan case Even if the withholding of imported goods turned out to be improper, the public officer is not personally liable because his acts enjoys presumption of good faith and regularity

Pan Pacific Industrial Sales Co., Inc. The presumption of regularity may only be rebutted by evidence so clear, strong and convincing as to exclude all controversy. Absence such, the presumption must be upheld. The burden of proof to overcome the presumption lies on the contesting the same. !

!

Kinds Of Liability Nonfeasance Neglect or refusal, without sufficient cause, to perform an act which it was the officer’s legal obligation to the individual to perform. This is omission of duty. (wa siya’y gibuhat but he was suppose to do something)

Misfeasance Negligence, failure to use, in the performance of a duty owing to the individual, that degree of care, skill and diligence which the circumstances of the case reasonably demand. This is improper act. (Duna siya’y gibuhat pero sayup) Malfeasance Acts without any authority, excess, ignorance or abuse of power. This is illegal act. (Duna na’y element of abuse)

!

•

Tuzon case Even if the public officer erred in the interpretation of ordinance resulting in the delay of issuace of permit and business losses, he is not personally liable if the interpretation is honest although erroneous.

!

!

•

Error in the exercise of authority is covered by immunity provided it is done— Within the scope of authority In good faith Without wilfulness, malice or corruption -

Test to determine if offense is committed in relation to office Crisostomo vs Sandiganbayan Crisostomo is a jail guard charged with murder of a detainee under his custody before the Sandiganbayan. He argues lack of jurisdiction because there is no direct relation between the commission of murder and his public office. SC held: The direct relation is shown in his duty as a jail guard which is to ensure safe custody and proper confinement of a detainee who was murdered under his watch.—so it negates his duty… !

•

Public office need not be an element of the crime charged to show they are related Esteban vs Sandiganbayan A bookbinder charged a judge with acts of lasciviousness after he made sexual advances and innuendos on her when she sought his recommendation. The judge argues the acts of lasciviousness were not committed in relation to his office as a judge, and it is not an essential element of the crime. SC held: True, public office is not an element but still, he could not have committed it were it not for his power to recommend appointment. !

PRC vs Bonifacio The results of a horse race was nullified by the Commission on Races after it investigated and found a faulty start. The winners claimed prizes and losers were reimbursed of the amount of their bets. However, it turned out that it did not have the authority to nullify the results of the race. SC said: Honest belief that it had the power of control is good faith. Nganu’ng in good faith man sila? o They conducted on the spot investigation.—that’s the only thing that made them act in good fatih. Plus the fact that it was an honest belief that they had the authority. Mura’g impulse bah.. •

The presumption is however not absolute Eulogio vs Sps Apeles

!

Three-Fold Liability Rule (Office of the Court Administrator vs Enriquez ) It states that the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. An action for each can proceed independently of the others. They are separate and distinct from each other. #

Quantum of Proof required: Civil: preponderance of evidence


-

Criminal: guilt beyond reasonable doubt Administrative: substantial evidence !

SIR: I have to confess (mao naaani! Unsa kaha ni iya i.confess), I’ve been a lawyer for like a decade already but it is only 2 or 3 years ago that I came to know and understand “preponderance of evidence”. Diha ra jud ku kasabot when I was confronted with a case. Because I really thought all along that preponderance of evidence is presentation of evidence. (okay ra na sir! Crush gihapun tka… *sparkle2x ang eyes…) But it’s not mere presentation of evidence but the determination of which of the two sets of evidence is weightier that the other. And that’s the only basis for the grant or denial of a civil case. NOW WE KNOW! •

Bad faith results in personal civil liability for damages San Luis vs CA A governor suspended and dismissed a quarry superintendent in defiance of the order of the CSC and the Office of the President to revert and reinstate. The superintendent was exonerated of the charges. SC held: The governor acted in bad faith. As such, he is personally liable for damages in the nature of civil liability. (kana man gud madugay naka sa pwesto…saktu gyud na’ng g.ingn sa mga aquino—I won’t deny that I am fan of the Aquino’s—POWER SHOULD BE TEMPORARY because if it is permanent, it will corrupt. And if it corrupts, it corrupts absolutely…so kani nga mga tao mag.dugay gali sa pwesto, they acquire this delusion of power. Kabantay ka? They are so vindictive because they feel that if they are offended, you are trying to trumple on their power. When in fact in the first place, they don’t own that power. You know what, I came to realize that for this country to improve or prosper, our only hope does not lie on the politicians. Our hope is somewhere else. I don’t know where but it’s not with them. It’s somewhere else) --- ANG SPEECH NI SIR….ayaw na k.strong dha sir..lab gihapun tka! "

•

!

!

Absence of essential elements of the crime charged does not bar administrative liability pursuant to the three-fold liability rule Domingo vs Rayala A stenographic reporter charged the NLRC Chairman with sexual harassment. The Chairman argued the acts complained of do not constitute sexual harassment because the essential elements of demand for sexual favour and made as a pre-condition to employment or promotion were not alleged. SC held: Correct, if it is a criminal case. Even if none of the elements of sexual harassment is alleged, he is still administratively liable because under the 3-fold liability rule, the wrongful acts of a public officer may also give rise to administrative liability, apart from criminal and civil liability. (so wala gihapun ka’y lusot) It is not required that the demand, request or requirement of a sexual favor be made categorically. It is enough if it creates an intimidating, hostile or offensive environment. Unsa ma’y manifestation ani? That it created an intimidating, hostile or offensive environment to the EE. After the sexual harrasment, she wanted to transfer. She wanted to take a leave of absence. That instance shows that there was already a hostile environment. !

!

•

Dismissal of a criminal case does not bar administrative liability even if both arise from identical facts OP vs Cataquiz Cataquiz was criminally and administratively charged for graft and corruption. He was replaced and later dismissed from service, disqualified to hold public office and forfeited of retirement benefits. But the criminal case was dismissed. He argued it constitutes the law of the case. As such, the administrative case must also be dismissed. He also argued he could no longer be dismissed because he was dismissed by replacement earlier. As

But when the public officer acts as a government lawyer, the action for damages must be brought in a separate action Chavez vs Sandiganbayan The PCGG, represented by Solicitor General Frank Chavez, filed a complaint for reconveyance, reversion and accounting, restitution and damages against Enrile. Enrile impleaded Chavez in his counter-claim for damages, alleging it is a mere harassment suit because he was already cleared from a similar case before. SC held: The action is misplaced. There is no general immunity arising solely from occupying a public office. Public officers can be held personally liable for ultra vires ats or if they act in bad faith. But to allow a counterclaim against a lawyer leads to mischievous consequences. Any claim for damages should be filed in an entirely separate and distinct civil action. The issue is whether it is proper to implead the lawyer. !

!

•

such, the accessory penalties of disqualification and forfeiture cannot be imposed pursuant to the principle that the accessory follows the principal. SC held: Dismissal of the criminal case does not bar administrative case and accessory penalties pursuant to the 3-fold liability rule.

Liability Of Superior Officers For Acts Of Subordinates •

The signature of the approving officer does not in itself amount to conspiracy with the subordinates Arias vs Sandiganbayan & D ata vs Sandiganbayan Arias approved payment for expropriated land which turned out to be overpriced and supported by falsified documents. He was charged in conspiracy with others who examined, reviewed and prepared falsified documents for the transaction. SC held: The mere sig nature of the head of office who had to r ely to a reasonable extent on the competence and good faith of his subordinates is not an evidence of conspiracy. To require the head of office to personally probe records, inspect documents or investigate the motives of all individuals involved in the transaction before signing it is asking the impossible. There has to be some added reason why the head of office should examine the documents in detail. Otherwise, he repeats the process all over again, defeating delegation and division of labor, which are good administrative practices. !

!

EXCEPT: When there is no allegation of conspiracy among the superior and subordinates Cesa vs Ombudsman Cesa is City treasurer. Under him are 5 department heads and 370 employees, one of whom is Badana, the paymaster who malversed at least 18M pesos of public funds. An administrative case was filed against Badana by the City Mayor. But the Ombudsman impleaded Cesa for neglect of duty. Cesa argues he could not be held liable because he does not approve cash advances. Invoking the Arias doctrine, he said he had to rely on his subordinates by virtue of division of labor and delegation of functions. SC held: The City treasurer is still liable for neglect of duty because his lack of supervision contributed to the malversation of public funds. As a matter of fact, he approved paymasters’ requests based on papers without particulars. Arias doctrine does not apply because he was not charged in conspiracy with the paymaster. He was separately charged and found to be negligent in his supervisory powers. !

!

!

MODES OF TERMINATION OF RELATIONS End Of Term Fernandez vs Ledesma (this is a very old case)


!

The chief of police was replaced by the president with another pursuant to the city charter that allows him to remove appointed officers in the city at his pleasure or discretion, except the municipal judge who may be removed only for cause provided by law. SC held: If the creation and tenure of office is expressly made dependent upon the pleasure of the appointing authority, the appointment has no fixed term. As such, replacement does not amount to removal but expiration of term.

Hernandez vs Villegas The Director for Security of the Bureau of Customs was removed and transferred as Arrastre Superintendent without cause. Respondents argued that the transfer is allowed because the position is primarily confidential as it coordinates functions of security, patrol and investigation. Primarily confidential, policy-determining and highly technical positions are excluded from the merit system and their dismissal is at the pleasure of the appointing authority. Thus, the Director can be removed and transferred with or without cause. SC held: The position is not primarily confidential. The only authority to classify it as such is the President. The constitution merely exempts these positions from the civil service requirement that appointments must be made on the basis of merit and fitness as determined by competitive examinations. As such, they can only be suspended or removed for cause as may be provided by law. And that cause is loss of confidence. If they are terminated on ground of loss of confidence, it is not removal but expiration of the term of office.

•

!

!

!

!

Retirement Beronilla vs GSIS Beronilla changed his year of birth from 1898 to 1900 which was approved by the GSIS general manager. Thus, the proceeds of his insurance policy was re-computed, maturity date and value were adjusted. He also paid additional premium. But later it was found out that he had been paid salaries and fringe benefits despite lapse of his compulsory retirement age. Thus, the GSIS Board of Trustees resolved to supersede the decision of the general manager that allowed change of year of birth. Contention of Beronilla: He argued it impaired the obligations of contract between him and the GSIS regarding his retirement. SC held: The constitutional injunction against impairment of obligations of insurance contracts can only be directed against legislation and not resolutions of government agencies. Retirement of government employees is imposed by law and is not a result of any contractual stipulation.

•

!

•

!

Abolition Of Office Manalang vs Quitoriano (g.lag-lag ni Quitoriano si Manalang…ana xa: “bai, ikaw na gyud ang m.appoint. you have this passion for the agency blah blah blah”…nya si Quitoriano d.i tu ang n.appoint. what makes this case more pityful is that Manalng was the one who drafted the law that abolished his office. SIR: my heart bleeds for the guy… *aweeee! Si sir jud uuui!* hahaha) The Placement Bureau was expressly abolished by law organizing its replacement, the National Employment Service. Manalang, the Bureau Director was expected to be appointed Commissioner but Labor Secretary Quitoriano was appointed. Manalang argued there is no abolition of office but a mere fading away of the title Placement Bureau and all its functions are continued by the National Employment Service. Hence, he continues to occupy it by operation of law. As such, the appointment of Quitoriano is illegal because it amounted to his removal from office without cause. SC held: Removal presupposes that the officer was ousted from office prior to term end and that the office still exists after the ouster of the occupant. It is not the case in point. A law expressly abolished the Placement Bureau. Thus, the Office of the Director is impliedly abolished because it cannot exist without the bureau. The abolition of the office likewise abolished the right of the occupant to stay. There is no removal, but abolition by express legislative act. !

Abolition of office in bad faith is null and void hence it results in unlawful termination Cruz vs Primicias Cruz and other are civil service eligible provincial clerks. By virtue of authority from the provincial board, the governor issued an executive order reorganizing his office and the provincial board to promote economy, efficiency and simplicity. It abolished the positions of clerks but created positions for the governor’s confidential staff. SC held: The issue is not removal but validity of the abolition of their offices. It is null because it clearly serves personal or political ends or to circumvent security of tenure. No economy. Of the 72 positions abolished, 50 were vacant and the 22 occupied positions were paid P25,000 per semester. Whereas the 28 new positions were paid P43,000 per semester. There is no need for more efficiency because there is no complaint for inefficiency filed. As a matter of fact, they were all promoted before due to efficiency. !

!

!

If there is no evidence of bad faith in the abolition of office, the termination does not result in removal, but a result of abolition Facundo vs Pabalan & Ulep vs Carbonell Facundo is an eligible market collector while Ulep is a non-eligible clerk. The municipal council resolved to abolish their positions because they are unnecessary, useless and redundant. But on the same day, another resolution was passed creating 4 positions for policemen. They argued the resolution abolishing their offices illegally terminated them. SC held: While it appears the abolition is tainted with politics, the positions created by one resolution are entirely different from the positions abolished by another resolution. Thus, there is no evidence of bad faith. Ulep could not invoke his right against removal without cause because he was not removed, but his office was abolished. Thus, it does not matter whether he is civil service eligible, non-civil service eligible, or eligible-inwaiting.

Abolition of office presupposes clear intention to do away with it wholly and permanently Busacay vs Buenaventura (this is THE….ASOQUE DOCTRINE!—SIR: Van roe? Where is van roe? Oooh! There he is!) A toll collector was laid off when the bridge was totally destroyed by flood. When it reopened, he was replaced because accordingly, his position is temporary and the total collapse of the bridge abolished it. SC held: The total collapse of the bridge merely suspended the position, because there is no intention to do away with it wholly and permanently. When it reopened, the position was automatically restored. !

!

Reorganization Dario vs Mison Cory Aquino reorganized the Bureau if Customs. Thus, Mison terminated 394 customs officials and employees but replaced them with 522 new employees. SC held: Reorganization is valid if done in good faith. There is reorganization if personnel are reduced, offices consolidated or abolished by reason of economy or redundancy. No economy, 394 were replaced with 522 new employees. No reorganization, but mere change of personnel. !

!

!

•

Qualifications are continuing requirements Article VIII, 1987 Constitution Section 11. The Members of the Supreme Court and judges of lower courts shall hold office during good behaviour until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Spreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of


majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. •

have been struck down as done in bad faith had both offices performed substantially the same functions. (Facundo vs Pabalan, Ulep vs Carbonell)

Reorganization by abolition does not result in unlawful removal from office Dela Llana vs Alba Dela Llana is a lower court judge who challenged the constitutionality of BP 129 reorganizing the judiciary. He argued it violates his security of tenure because he holds office during good behaviour until he reaches compulsory age of retirement or is incapacitated. SC held: Reorganization of lower courts does not violate security of tenure of its occupants because there is no removal but abolition of their offices.

C.

Incumbents are replaced with less qualified in terms of status of appointment, performance and merit; Replacement of eligible clerks who were once promoted for efficiency with confidential employees whose only qualification is loyalty to the governor negates efficiency as justification for reorganization. (Cruz vs Primicias)

D.

Reclassification with substantially the same functions as the original offices;

E.

Removal violates order of separation provided in Section 3 Order of separation of personnel pursuant to reorganization: $ Casual employees serving less than 5 years Casual employees serving 5 or more years $ Temporary employees $ $ Permanent employees

!

!

TAKE NOTE: Abolition is just a concrete manifestation of reorganization. •

The power of the president to reorganize his office does not include the power to create one Biraogo vs Truth Commission & Lagman vs Albano President Aquino created the truth commission to investigate graft and corruption cases allegedly committed under the Arroyo administration. SC held: While the law grants the president continuing authority to reorganize his office, it does not include the power to create an office. Reorganization involves: reduction of personnel, consolidation or abolition of offices by reason of economy or redundancy. Thus, it presupposes an office existed prior to alteration. It is not an exercise of power of control because it involves the power to modify, alter, nullify or set aside the decision of a subordinate. It does not include the power to create an office. The power to create a public office is: legislative, or validly delegated by Congress or inherent duty to faithfully execute laws. !

•

!

!

!

!

!

!

!

TAKE NOTE: but in this case, the inherent duty to faithfully execute laws was invoked by the solicitor general in favor of the office of the president. But it was not taken into consideration by the SC because the SC was actually blinded by the fact that it violated the equal protection clauseof the Consti because it singled-out the Arroyo administration.

Evidence of bad faith must be adduced, otherwise the reorganization is sustained Cotiangco vs Province of Biliran (I did not assign this case…this is a new case. 2012 case.) Permanent public health workers were terminated when their offices were abolished due to reorganization which they claimed was done in bad faith. SC held: Good faith is presumed. He who alleges otherwise has the burden of proof. Instead of significant increase in positions, it decreased from 120 to 98. The new positions created were for storekeepers that do not perform similar functions as health practitioners. They also failed to show: Reclassification of offices performing substantially similar functions. Evidence they are better qualified in performance and merit than those who replaced them. Order of separation was violated, especially the provision that says those who are least qualified in terms of performance and merit shall be laid off first, regardless of length of service.

Abandonment Summers vs Ozaeta A cadastral judge received, qualified and assumed an ad interim appointment as judge-atlarge of first instance. But it was disapproved by the Commission on Appointments. He argues he did not abandon his former position because the constitution entitles him to hold office as cadastral judge during good behaviour until he reaches mandatory retirement age of 70 or becomes incapacitated. SC held: there is no doubt about the right to hold office during good behaviour until he reaches maximum retirement age of 70 years or becomes incapacitated. But it can be waived through abandonment. If the officer discharged the functions of his new position and received salaries for it, he is considered to have abandoned his former position without right to repossess. !

•

Bad faith in reorganization per R.A. 6656 (Act that protects the Security of Tenure) A.

Significant increase in the number of positions; Replacement of 394 eligible employees with 522 new employees negates economy as justification for reorganization. (Dario vs Mison) Replacement of 22 occupied positions at P25,000 per semester with 28 new positions at P43,800 per semester negates economy as justification for reorganization. (Cruz vs Primicias)

B. An office is abolished and replaced with another performing s ubstantially the same functions; The offices of a market collector and local civil registrar clerk were dissolved and replaced with 4 positions for policemen. It appeared that the market collector and local civil registrar clerk were removed via abolition of their offices because of their political affiliation. Although the reorganization is tainted with politics, the Supreme Court said that was not prepared to declare it an abuse of power because the dissolved positions and the newly created positions performed entirely different functions. It would

!

•

Other acts constitute of abandonment Unabia vs City Mayor A foreman was removed by the city mayor without investigation and cause. But he filed a petition for quo warranto to recover his position a year and 15 days after. SC held: Inaction or failure to recover position for an unreasonable length of time constitutes abandonment. !

!

Zandueta vs de la Costa

ELECTIONS | Midterms Transcript 2014 By RLB ! !

A judge accepted another appointment, discharged its functions and received salaries. SC held: He abandoned his office without right to repossess if the new appointment was disapproved.

Incompatible Office Incompatibility is found on the character of the offices and their relation to each other, in the subordination of one to the other, and in the nature of the functions and duties which attach to them. It requires the involvement of two government offices or positions which are held by one individual at the same time. •

It exists 1) 2) 3)

•

where: There is conflict and interference in the duties and functions One is subordinate of public policy The law, for reasons of public policy, declares the incompatibility even though there is no inconsistency in the nature and functions of the offices. •

NOTE: Thus, Members of Congress are disqualified to hold any other office or employment in the government. In the government only. But in the private sector, it can be allowed. o They cannot hold 2 classes of office – $ Incompatible office Forbidden office $ DEFINITION Incompatible office Incompatible office includes any kind of office or employment in the government, or any of its subdivision, agency or instrumentality including GOCC’s or their subsidiaries. Acceptance of the second office incompatible with the first ipso facto vacates the latter. Thus, a senator or congressman who accepts any other office or employment in the government during his term of office forfeits his seat. While the holding of another office is allowed, he automatically forfeits his elective post. An appointive officer is deemed ipso facto resigned upon filing of candidacy for an elective position. So if you hold a permanent position in the government, that is appointive. o Then you want to run for public office. So the moment you file you certificate of candidacy (COC) with the Comelec, automatically ipso facto mechanically you are considered reisgned from your appointive position because of incompatibility of offices. And that results in the termination of official relations. Forbidden office Refers to any office created or the emoluments of which have been increased during the term for which he was elected, not merely during his tenure or actual incumbency. Ineligibility lasts until after end of term, not tenure. So, he is not eligible to be appointed to the office created during his term even if he resigns or loses his seat before end of term. Terms of office A fixed period of time during which the officer has a right to hold office Tenure of office The period during which the incumbent actuall y holds office. Resignation Formal renunciation of a public office.

•

•

•

If the law requires a particular form, it must be followed. Where no such form is prescribed or particular mode required, it may be made by any method indicative of the purpose. It need not be in writing, unless so required by law. It may be oral or implied by conduct . Resignation implied by conduct or CONSTRUCTIVE RESIGNATION By applying for and receiving retirement benefits, one may be deemed to have irrevocably resigned from government service. (Triste vs Macaraeg) If resignation is conditional, there is no resignation at all due to lack of intention to relinquish the position. To constitute a complete and operative act of resignation, there must be: $ Clear intention to relinquish, and $ Acceptance by a competent and lawful authority. (Gonzales vs Hernandez) To whom tendered To the one designated by statute If not designated by law, to the officer or body having authority to appoint his successor or call an election. Acceptance By formal declaration or appointment of successor Without it, resignation is inoperative and ineffective Without it, the officer who abandons his office to the detriment of public service is criminally liable. Without it, the offer to resign is revocable. Withdrawal of resignation is allowed provided it is done before: $ Its intended date $ It is accepted The appointing officer acts in reliance on it. $ Effect of resignation on administrative case OP & PAGC vs Cataquiz Cataquiz was dismissed with accessory penalties of disqualification and forfeiture. But he was already replaced with another prior to his dismissal. The Court of Appeals thus disallowed the accessory penalties because there is no more principal penalty of dismissal which the accessories should follow. SC held: Removal or resignation is not a bar to the finding of administrative liability. Hence, accessory penalties can still be imposed. !

!

EXCEPT: If the public officer resigned before the administrative case was filed and it is clearly shown that it was not intended to pre-empt its filing In other words, there are cases that the BEFORE and AFTER agreement matter. What mattters is: was there an intention to preempt the filing of the administrative case. The time of resignation—the before and after of the filing of the admin case—may not matter, if it still can be shown that the purpose or the intention was to preempt the filing of admin case. So it is case-to-case basis. Ombudsman vs Andutan REMEMBER THIS CASE!! A deputy director of the finance department resigned after he was directed to vacate for being a non-career official. More than a year after he resigned however, he was administratively charged for dishonesty, grave misconduct, falsification and prejudicial conduct. !


SC held: The ombudsman may still investigate an administrative offense after a year it was committed. But if the public officer resigned before it is filed, the administrative case is mooted and the accessory penalties could no longer be imposed. While it is true that the Supreme Court has held that resignation does not moot administrative cases, the public officials involved in such cases resigned after the administrative cases were filed against them. In those cases, it was intended either to discontinue one already filed or pre-empt imminent filing of one. None of which is present, because the director was forced to resign.

Removal Manalang vs Quitoriano Entails ouster of an incumbent before the expiration of his term. It implies that the office exists after the ouster. It may be express or implied. Implied if – $ Appointment of another officer Transfer to another office $ $ Demotion $ Reassignment •

Power to appoint includes power to remove, where there is no fixed term Lacson vs Roque Limitations on the power to remove – $ Purely executive officials with no fixed term are removable anytime with or without cause $ Civil service employees cannot be removed or suspended except for cause as provided for by law. “For cause” means reasons which the l aw and sound public policy recognize as sufficient ground for removal. !

!

SECTION 69. By Whom Exercised. — The power of recall for loss of confidence shall be exercised by the registered voters of a local government unit to which the local elective official subject to such recall belongs. Section 70. Initiation of the Recall Process. — (as amended by RA 9244) (a) The Recall of any elective provincial, city, municipal or barangay official shall be commenced by a petition of a registered voter in the local government unit concerned and supported by the registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected subject to the following percentage requirements:

(1) At least twenty-five percent (25%) in the case of local government units with a voting population of not more than twenty thousand (20,000); (2) At least twenty percent (20%) in the case of local government units with a voting population of at least twenty thousand (20,000) but not more than seventy-five thousand (75,000): Provided, That in no case shall the required petitioners be less than five thousand (5,000); (3) At least fifteen percent (15%) in the case of local government units with a voting population of at least seventy-five thousand (75,000) but not more than three hundred thousand (300,000): Provided, however, That in no case shall the required number of petitioners be less than fifteen thousand (15,000); and (4) At least ten percent (10%) in the case of local government units with a voting population of over three hundred thousand (300,000): Provided, however, That in no case shall the required petitioners be less than forty-five thousand (45,000). (b) The process of recall shall be effected in accordance with the following procedure:

•

Dismissal of criminal case does not bar removal in administrative case OP & PAGC vs Cataquiz Cataquiz was recommended to be dismissed due to graft and corruption. Instead of acting on it, the president replaced him with another in an acting capacity. He was later dismissed by the president, disqualified to hold public office and forfeited of benefits. But since the dismissal could no longer be enforced because of prior replacement, the president removed the penalty of dismissal but reiterated disqualification and forfeiture. Contention of Cataquiz: The Ombudsman dismissed the criminal cases against him involving the same set of facts. As such, it becomes the law of the case between the parties which warrants dismissal of the administrative charges against him. SC held: The dismissal by the Ombudsman of the cases against him involving similar facts does not bar the president from removing him. As presidential appointee, he is under the president’s direct disciplining authority which includes dismissal. !

•

(1) A written petition for recall duly signed by the representatives of the petitioners before the election registrar or his representative, shall be filed with the Comelec through its office in the local government unit concerned.

!

(2) The petition to recall shall contain the following: (a) The names and addresses of the petitioners written in legible form and their signatures;

!

(b) The barangay, city or municipality, local legislative district and the province to which the petitioners belong;

Impeachable officials can only be removed on the grounds enumerated in the Constitution In Re: Gonzales, 160 SCRA 771 A chief justice was sought to be disbarred. SC held: The Chief Justice is removable only by impeachment. Since he is also required to be a member of the Philippine Bar, he cannot be disbarred during his incumbency. To grant disbarment circumvents constitutional mandate that SC members can only be removed by impeachment. ! !

Recall (aku gi copy-paste ang discussion about Recall from our Pub Corp class last sem kay wa ku k.gukod ug picture sa tanan slides ni sir. Hehe –in addition sa slides nga aku na picture-an. hehe)

(c) The name of the official sought to be recalled; and (d) A brief narration of the reasons and justifications therefor. (3) The Comelec shall, within fifteen (15) days from the filing of the petition, certify to the sufficiency of the required number of signatures. Failure to obtain the required number of signatures automatically nullifies the petition; (4) If the petition is found to be sufficient in form, the Comelec or its duly authorized representative shall, within three (3) days from the issuance of the certification, provide the official sought to be recalled a copy of the petition, cause its publication in a national newspaper of general circulation and a newspaper of general circulation in the locality, once a week for three (3) consecutive weeks at the expense of the petitioners and at the same time post copies thereof in public and conspicuous places for a period of not less than ten (10) days nor more than twenty (20) days, for the purpose of allowing


interested parties to examine and verify the validity of the petition and the authenticity of the signatures contained therein.

!

(5) The Comelec or its duly authorized representatives shall, upon issuance of certification, proceed independently with the verification and authentication of the signatures of the petitioners and registered voters contained therein. Representatives of the petitioners and the official sought to be recalled shall be duly notified and shall have the right to participate therein as mere observers. The filing of any challenge or protest shall be allowed within the period provided in the immediately preceding paragraph and shall be ruled upon with finality within fifteen (15) days from the date of filing of such protest or challenge;

-

!

(6) Upon the lapse of the aforesaid period, the Comelec or its duly authorized representative shall announce the acceptance of candidates to the position and thereafter prepare the list of candidates which shall include the name of the official sought to be recalled. #

SEC. 71. Election on Recall. — Upon the filing of a valid petition for recall with the appropriate local office of the Comelec, the Comelec or its duly authorized representative shall set the date of the election or recall, which shall not be later than thirty (30) days upon the completion of the procedure outlined in the preceding article, in the case of the barangay, city or municipal officials, and forty-five (45) days in the case of provincial officials. The officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions and, like other candidates, shall be entitled to be voted upon. (as amended by RA 9244)

-

Definition: Recall is a mode of removing an elected official by the people before the end of his term. Ground: LOSS OF TRUST AND CONFIDENCE No more preparatory recall assembly (PRA) as a mode of initiating recall. There is only one mode of initiating recall: By the Registered Voters (following certain percentage)

*In the Philippines, we only apply recall to local elective officials.

Prohibition in Recall Proceedings: $ No resignation during recall process; $ Recall election should only be once during the term of the official.

No recall election shall take place: within one (1) year from date of official’s assumption to office or one (1) year immediately preceding a regular election (day of election and that election affecting the office of the official concerned)

*Hence, a recall election can only be scheduled during the middle of the incumbent official’s term. The reason in the first prohibition, it is too early to tell that the people had already lost their trust and confidence and it is not a good practice. Also, it is to give him a chance to prove himself. While in the second prohibition, it is too close to the next regular election, thus, it wouldn’t be prudent to insist on a recall election when the voters can still manifest their decision on the incumbent official in the next regular election. It is also a waste of money and resources. # #

SECTION 75. Expenses Incident to Recall Elections. — All expenses incident to recall elections shall be borne by the COMELEC. For this purpose, there shall be included in the annual General Appropriations Act a contingency fund at the disposal of the COMELEC for the conduct of recall elections.

The reason behind the requirement of certain percentages is that it cannot be that, every now and then, each time a local elective official sits in the office that he will face a recall election. To give semblance of legitimacy to a grievance by the electorates, the registered voters needs the support of 25%, 20% etc. as the case may be.

$

SECTION 73. Prohibition from Resignation. — The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress.

(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election.

If somebody else wins the recall election, then it means that the recall election succeeded, since it has been shown that the people lost their trust and confidence on the incumbent.

NOTE: it speaks of “election”, not “proceeding”, thus, initiation can be done more than once.

SECTION 72. Effectivity of Recall. — The recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office.

SECTION 74. Limitations on Recall. — (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence.

The incumbent official, who is the subject of the recall proceedings, will automatically becomes a candidate for that recall election, whether he likes it or not. In fact, he cannot resign. Then, Comelec will invite other persons to file COC for the recall election. If the incumbent official will win the recall election, it means that the recall election failed since it has been shown that the people still have their trust and confidence on the incumbent.

#

•

•

•

By this procedure, an elective official may be removed at any time during his term by the vote of the people at an election called for such purpose. “Any time” means after one year from assumption or one year before a regular local election where the position of the subject to be recalled is to be contested. Its purpose is to provide an effective speedy remedy to remove an official who fails to give satisfactory service and whom electors no longer want to remain in office. Contents of the recall petition: Names, addresses and signatures of petitioners Barangay, city or municipality, local legislative district and the province where petitioners belong Name of the official sought to be recalled Brief narration of the reasons and justifications NOTE: Thus, the allegation of loss of confidence is not sufficient Where filed Comelec through its field office in the local government unit concerned. Election on recall Official sought to be recalled is automatically considered a candidate. He is not allowed to resign while the recall process is in progress.

ELECTIONS | Midterms Transcript 2014 By RLB • •

•

Limitations on recall A local elective official may be s ubject of recall only once during his term of office for loss of confidence. No recall within one year from date of assumption or before a regular local election. “Regular local election” For the time bar to apply, the approaching regular local election must be one where the position of the official to be recalled will be contested and filled by the electorate. (Angobung vs Comelec) The prohibition is due to the proximity of the next regular election where the electorate can choose a replacement with longer tenure than the successor elected through recall. Recall election is potentially disruptive of the normal working of a local government, aside from additional expenses. (Paras vs Comelec)

Prescription Unabia vs Mayor On June 16, 1953, a foreman was removed and replaced by the city mayor without investigation and cause. On July 1, 1954, he filed quo warranto to be reinstated. SC held: He appears to have abandoned his position because it took him a year and 15 days to file quo warranto . But since the law does not fix a period for abandonment, prescription of action is the more appropriate mode on how his official relations were terminated. !

!

•

Reasons for prescription Tumulak vs Egay In July 1946, a justice of the peace was replaced with another. In August 1948, he filed a quo warranto case. SC held: The action prescribed. It is not proper that the title of a public office should be subjected to continued uncertainty. Public interest requires that such right should be determined as soon as possible or within reasonable time. !

!

Failure to assume office Effect: Failure to assume vacates the office and terminates relations Section 11. Failure to assume office of the Omnibus Election Code The office of any official elected who fails or refuses to take his oath of office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control. •

Criminal liability for failure to assume office Article 234. Refus al to disch arge elective of fice. Arresto mayor or a maximum 1,000 fine or both. •

•

Elements: Offender is elected by popular election to a public office Refuses to swear or discharge duties of office Without legal motive “Legal motive” means legal justification. o Reason why it is punished: Discharge of duties not only becomes a matter of right, but a matter of duty. -

ADMINITRATIVE DISCIPLINE Discipline over presidential appointees

The SC has exclusive administrative control and supervision over all court personnel even if they are presidential appointees Undue delay in disposition of a case is administrative in nature. As such, it pertains to the exclusive jurisdiction of the Supreme Court. (Dolalas vs Ombudsman) But falsification of certificates of service is not only criminal for falsification but also administrative for serious misconduct and inefficiency. As such, the Ombudsman must defer action and refer it to SC to determine if he acted within his scope of duties. (Maceda vs Vasquez)

Discipline over non-presidential appointees Book V, EO 292 or the Revised Administrative Code SECTION 46.Discipline: General Provisions. — (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process.

(b) The following shall be grounds for disciplinary action: (1) Dishonesty; (2) Oppression; (3) Neglect of duty; (4) Misconduct; (5) Disgraceful and immoral conduct; (6) Being notoriously undesirable; (7) Discourtesy in the course of official duties; (8) Inefficiency and incompetence in the performance of official duties; (9) Receiving for personal use of a fee, gift or other valuable thing in the course of official duties or in connection therewith when such fee, gift, or other valuable thing is given by any person in the hope or expectation of receiving a favor or better treatment than that accorded other persons, or committing acts punishable under the anti-graft laws; (10) Conviction of a crime involving moral turpitude; (11) Improper or unauthorized solicitation of contributions from subordinate employees and by teachers or school officials from school children; (12) Violation of existing Civil Service Law and rules or reasonable office regulations; IHcSCA (13) Falsification of official document; (14) Frequent unauthorized absences or tardiness in reporting for duty, loafing or frequent unauthorized absences from duty during r egular office hours; SEIDAC (15) Habitual drunkenness; (16) Gambling prohibited by law; (17) Refusal to perform official duty or render overtime service; (18) Disgraceful, immoral or dishonest conduct prior to entering the service; (19) Physical or mental incapacity or disability due to immoral or vicious habits; (20) Borrowing money by superior officers from subordinates or lending by subordinates to superior officers; (21) Lending money at usurious rates of interest; (22) Willful failure to pay just debts or willful failure to pay taxes due the government; (23) Contracting loans of money or other property from persons with whom the office of the employee concerned has business relations; (24) Pursuit of private business, vocation or profession without the permission required by the Civil Service rules and regulations; (25) Insubordination; (26) Engaging directly or indirectly in partisan political activities by one holding a nonpolitical office; (27) Conduct prejudicial to the best interest of the service; (28) Lobbying for personal interest or gain in legislative halls or offices without authority;


(29) Promoting the sale of tickets in behalf of private enterprises that are not intended for charitable or public welfare purposes and even in the latter cases if there is no prior authority; (30) Nepotism as defined in Section 59 of this Title. (c) Except when initiated by the disciplining authority, no complaint against a civil service official or employee shall be given due course unless the same is in writing and subscribed and sworn to by the complainant. (d) In meting out punishment, the same penalties shall be imposed for similar offenses and only one penalty shall be imposed in each case. The disciplining authority may impose the penalty of removal from the service, transfer, demotion in rank, suspension for not more than one year without pay, fine in an amount not exceeding six months' salary or r eprimand. SECTION 59.Nepotism. — (1) All appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relati ve of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited.

# # #

As used in this Section, the word "relative" and members of the family referred to are those related within the third degree either of consanguinity or of affinity. (2) The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines:

# # •

Provided, however, That in each particular instance full report of such appointment shall be made to the Commission. The restriction mentioned in subsection (1) shall not be applicable to 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. (3) In order to give immediate effect to these provisions, cases of previous appointment which are in contravention hereof shall be corrected by transfer, and pending such transfer, no promotion or salary increase shall be allowed in favor of the relative or relatives who were appointed in violation of these provisions. •

What is nepotism? If you make an appointment in favor of a relative of the appointing or the recommending authority, that is prohibited. Because of nepotism.

you and your siblings are 2nd degree relatives you and your parents are 1st degree relatives you and your grandparents are 2nd degree relatives uncle and aunts are your 3 rd degree relatives 1st cousins are 4th degree relatives

Exempted in the Rules on Nepotism Persons employed in a confidential capacity by the elected official They are now entitled to support staff, unlike before. this support staff is more o often than not kay mga parente ug mga supporters nga tig.pilit ug mga posters during campaign. Teachers Physicians AFP -

Impeachment Article XI, 1987 Constitution Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. SIR: Bisaya sa impeachment kay GISUMBONG KA. But don’t use that in ordinary l anguage like sa imung manghud mu ingun ka’g “i-impeach ti ka ni mama”. That’s too legal .

-

•

A method of national inquest into the conduct of public men. Purpose – to protect the people from official delinquencies. It is not to punish but only to remove an officer who does not deserve to hold office. Limited to removal from office and disqualification to hold public office. Without prejudice to filing of appropriate cases. Thus, double jeopardy is not a defense. Impeachment is beyond the president’s power of executive clemency Impeachable officials: President $ $ Vice-president $ Members of the SC

ELECTIONS | Midterms Transcript 2014 By RLB $

The Ombudsman •

NOTE: This list is exclusive •

Grounds for impeachment: Culpable violation of the Constitution Treason Bridbery Graft and Corruption Other high crimes Betrayal of public trust Gonzales vs OP “Betrayal of public trust” refers to any form of violation of oath of office even if it is not a criminally punishable offense. Too broad, thus SC clarified this definition. It refers to “acts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favouritism, and gross exercise of discretionary powers.” Acts that constitute betrayal of public trust as to warrant removal from office m ay b e less than criminal but must be attended by bad faith and of such gravity and seriousness as the other grounds for impeachment.

When can you say that the tribunal has acquired jurisdiction? The body where the complaint was filed first; AND Opts to take cognizance of the case -

NOTE: Only the proper COURT can order the REMOVAL of the official. Section 61. Form and Filing of Administrative Complaints. – A verified complaint against any erring local elective official shall be prepared as follows: (a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President;

(b) A complaint against any elective official of a municipality shall be filed before the sangguniang panlalawigan whose decision may be appealed to the Office of the President; and

!

!

(c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or sangguniang bayan concerned whose decision shall be final and executory.

!

Administrative discipline over local elective officials (aku ra g.copy-paste from pub corp transcript last year nga relevant kay matter of reading ra man daw ingun xa so i.skip nlng niya. Haaaaaiii) Local Government Code Section 60. Grounds for Disciplinary Actions. – An elective local official may be disciplined, suspended, or removed from office on any of the following grounds: (a) Disloyalty to the Republic of the Philippines; (b) Culpable violation of the Constitution; (c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; (d) Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor; (e) Abuse of authority; (f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay; (g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and (h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on t he grounds enumerated above by order of the proper court. !

! !

!

!

Pursuant to the constitutional mandate that there must be a provision on accountability in the LGC. Purpose: To discipline local elective officials. It has the nature of an administrative proceeding. Therefore, it imposes administrative penalties. And the highest penalty that may be imposed is only SUSPENSION. If you are to seek disciplinary action, we have the ombudsman or you can avail of the LGC provisions. It’s a choice on the part of the aggrieved party. (Concurrent jurisdiction sila) But as a matter of rule in administrative law: The tribunal that first acquires jurisdiction over the case shall continue to exercise jurisdiction to the exclusion of the other one. Otherwise, it will be a case of forum shopping.

•

These are the tribunals or offices that have jurisdiction over disciplinary action, if you are to file the administrative case under the Local Government Code: Office of the President: Province, HUC and City Sangguniang Panlalawigan: Municipality - appealable to the Office of the President Sangguniang Panlungsod (if city) or Sangguniang Bayan (if municipality): Barangay - final and executory !

In the case of Barangay, the decision of the SP is final and executory, unlike in the case of a municipality that it can be appealed to the President. But as you know, you can invoke Rule 65 of the Rules of Court on the grounds of grave abuse of discretion amounting to lack or excess of jurisdiction.

*You will notice that it actually depends on the affiliation of the respondent. If he belongs to the Liberal Party, for example, like our incumbent Governor, you don’t file the administrative case in the Office of the President. (kapartido man si Noynoy ug Junjun Davide) •

Concurrent jurisdiction with the Ombudsman In administrative cases involving the concurrent jurisdiction of two or more disciplining authorities, the body where the complaint is filed first, and which opts to take cognizance of the case, acquires jurisdiction to the exclusion of other tribunals exercising concurrent jurisdiction. In this case, the petitioner is a Barangay Chairman, occupying a position corresponding to salary grade 14. Since the complaint against the petitioner was initially filed with the Office of the Ombudsman, the Ombudsman's exercise of jurisdiction is to the exclusion of the sangguniang bayan whose exercise of jurisdiction is concurrent.

*So typically, the usual mode of disciplinary action is through the ombudsman. For the following reasons: (1) It is not expected to be highly politicized now, compared to before when the it was administrated by Gutierrez but now it is under the EVER straight and strict retired SC Justice Conchita Carpio-Morales. Naa tanan! Maldita, strikta, straight!


(2) if you tend to seek imposition of preventive suspension, mas taas ang ombudsman, 6 months of preventive suspension. Whereas, in the case of LGC, 60 days and if multiple, 90 days.

!

Section 63. Preventive Suspension. – (a) Preventive suspension may be imposed: •

(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; (2) By the governor, if the respondent is an elective official of a component city or municipality; or (3) By the mayor, if the respondent is an elective official of the barangay. (b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension. (c) Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case. (d) Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of authority. ! !

!

It is not a penalty; Hence invocation of due process is generally not appropriate. Due process is irrelevant. There is no denial of life, liberty or property because public office is not a property, public office is a public trust. In a case , SC held that the sole objective of an administrative suspension is: To prevent the accused from hampering the normal course of the investigation with his influence and authority over possible witnesses or to keep him off the records and other evidence; and To assist prosecutors in firming up a case, if any, against an erring local official. -

In a case, when are issues considered joined? What is an issue? Answer: In legal parlance, an issue is an allegation that is denied by the other party because allegation that is admitted is not an issue. Therefore, issues are joined upon the filing of a responsive pleading.

Length of preventive suspension: Single offense – 60 Multiple offense – 90 *In the case of the Ombudsm an, you can ask for a 6 months p reventive suspension. Note: Prior hearing is not required in preventive suspension because it is not a penalty and will not violate due process

Section 64. Salary of Respondent Pending Suspension. - The respondent official preventively suspended from office shall receive no salary or compensation during such suspension; but upon subsequent exoneration and reinstatement, he shall be paid full salary or compensation including such emoluments accruing during such suspension. You are not entitled to salary during suspension but if you are exonerated and reinstated, you will be paid in full salary and emolument. Genadan case Section 65. Rights of Respondent. - The respondent shall be accorded full opportunity to appear and defend himself in person or by counsel, to confront and cross-examine the witnesses against him, and to require the attendance of witnesses and the production of documentary process of subpoena or subpoena duces tecum. Full opportunity to appead and to defend himself or by counsel The party in an inquiry may or may not be assisted by counsel and the body has no duty to furnish him with counsel. Remolona vs CSC the right to counsel is waivable in an administrative proceeding o Section 68. Execution Pending Appeal. - An appeal shall not prevent a decision from becoming final or executory. The respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in the event he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the pendency of the appeal. Appeal does not prevent decision becoming final and executory. If respondent wins an appeal, the period during which the appeal was pending shall be considered as a period of preventive suspension. If the appeal exonerates, he shall be paid his salary and such other emoluments during the pendency of the appeal. Jurisdiction of the Ombudsman

•

•

Authority to impose preventive suspension: 1) President – in the case of Province, HUC and ICC; 2) Governor – in the case of CC and Municipality; 3) Mayor – in the case of barangay. Conditions sine qua non: (Section 63) a) Issues have already been joined; b) After filing of the answer (any pleading filed whether it is the formal answer or not), which may be in various forms so long as it will render the allegations be considered as issues c) Evidence of guilt is strong; --the disciplining authority decides whether evidence of guilt is strong. d) Given the gravity of the offense, respondent might influence witnesses or pose a threat to records/evidence.

•

The full administrative disciplinary authority of the Ombudsman is not limited to recommendation. When public officers are found at fault, it includes the power— to remove, suspend, demote, fine, censure and prosecute Ombudsman vs CA & Armilla An administrative complaint for abuse of authority and misconduct was filed with the Office of the Ombudsman against DENR employees after they entered a property without permission. They were found guilty of simple misconduct and suspended for one month. The Court of Appeals sustained simple misconduct but said that pursuant to the !


!

!

!

•

Tapiador ruling, the Ombudsman can only recommend penalty and not directly remove, suspend, demote, fine, censure and prosecute public officials found at fault. Contention of the Ombudsman: The power of the Ombudsman to recommend includes the power to penalize. The Constitution vests it with the power to recommend administrative sanction but also to ensure its compliance. It not only enumerates its powers and functions, it also authorized Congress to add by legislation. As such, the Ombudsman Act of 1989 was passed giving it concomitant prerogatives of the power to discipline. To limit its power to merely recommendatory is absurd as the mayor may adopt or reject it as in review when no such recourse is provided for by law. Contention of the DENR employees: The power to recommend necessarily excludes the power to implement. SC held: The passing statement in Tapiador is a mere obiter dictum that cannot be cited as a doctrinal declaration. The term “recommend” in the 1987 Constitution should not be literally interpreted, but construed in tandem with the Ombudsman Act of 1989. The Constitution allows Congress to add powers and functions to the Ombudsman. Hence, the Ombudsman Act was enacted vesting it with full administrative disciplinary authority from recommendation to implementation. It was not intended to be passive, but an activist watchman armed with the power to prosecute and take active role in enforcing anti-graft laws.

!

•

•

SC held: A public officer may be dismissed from service for an offense not related to work or foreign to his performance of official duties because dishonesty affects fitness to continue in office.

Dishonesty defined As an administrative offense, dishonesty is defined as the disposition to lie, cheat, deceive, or defraud, untrustworthiness, lack of integrity in principle, lack of fairness and straightforwardness, disposition to defraud, deceive or betray. (Pagcor vs Rillorosa) It is the concealment or distortion of truth in a matter of fact relevant to one’s office or connected with the performance of his duties. (Alfonso vs OP) The Military Ombudsman is not prohibited to perform other functions affecting non-military personnel. Thus, it has jurisdiction to investigate police officers even if they are civilian personnel of the government. And there is no distinction between the duty to investigate and the power to conduct preliminary investigation Acop vs Ombudsman, Lacson vs Casaclang Different composite teams of police officers were investigated by the Deputy Ombudsman for the military for their involvement in the rubout of 11 suspected members of the notorious robbery gang, Kuratong Baleleng . They argued the duty of the Ombudsman to investigate is separate and distinct from the power to conduct preliminary investigation which remains with the Special Prosecutor. The Military Ombudsman has no jurisdiction over police officers because they are civilian personnel of the government. SC held: Based on the deliberations of the framers, there is no distinction between the duty to investigate and the power to conduct preliminary investigation. There is also no showing that such power remains with the Special Prosecutor. While there is an intention to withhold prosecutorial powers, it did not hesitate to recommend legislation to add powers, functions and duties of the Ombudsman. Hence, the Ombudsman Act of 1989 was passed which made the Office of the Special Prosecutor an organic component of the Office of the Ombudsman. It also removed powers of the Special Prosecutor and transferred them to the Ombudsman. There is no evidence from the deliberation that the Military Ombudsman is prohibited from performing other functions affecting non-military personnel. Sec. 31 of the Ombudsman Act authorizes the Ombudsman to designate personnel of his office or deputize any prosecutor or government lawyer to act as special investigator or prosecutor. Thus, the Ombudsman may refer cases involving non-military personnel for investigation to the Military Ombudsman. !

The Ombudsman has the power to prosecute criminal cases involving public officers, and it includes the power to conduct preliminary investigation Camanag vs Guerrero A BIR employee was charged with falsifying official documents after s he falsely claimed to be a CPA in her personal data sheet and presented a purported certified true copy of her passing rate. The Ombudsman conducted preliminary investigation and found probable cause. Based on this, it deputized the city prosecutor to file and prosecute falsification charges. SC held: It is true that the framers intended to withhold prosecutorial powers from the Ombudsman. However, they also did not hesitate to recommend legislation to prescribe its other powers, duties and functions. Section 13(8), Article XI empowers it to “exercise such other powers and perform such other functions or duties” as Congress may legislate. Thus, the Ombudsman Act of 1989 was enacted granting it power to prosecute including power to investigate. !

!

!

!

!

!

•

The jurisdiction of the Ombudsman over GOCC’s is confined only to those with original charter Khan Jr. Vs Ombudsman PAL officers were charged for violation of R.A. 3019 before the Ombudsman after they allegedly used their positions to secure a contract for a company they were stockholders. They moved to dismiss for lack of jurisdiction, saying PAL is a private entity and they were not public officers. It was denied because PAL is now a GOCC after its controlling interest was acquired by the government through the GSIS. SC held: The jurisdiction of the Ombudsman over GOCC’s is confined only to those with original charters. While it is true that PAL is now a GOCC after its controlling interest was acquired by the government through the GSIS, it has no original charter. It was originally organized as a private entity seeded with private capital under the general corporate law. Juco defines the phrase “with original charter” as “chartered by special law as distinguished from corporations organized under the Corporation Code”. !

!

•

A public officer may be dismissed from service for private and person al acts Remolona vs CSC A post master was dismissed after found guilty of dishonesty for faking the eligibility of his wife. He argued his dismissal violates due process because it was not for cause since since the dishonest act was not committed in the performance of his official duties as postmaster. !

•

The School Superintendent has original jurisdiction over administrative cases involving public school teachers. As such, the Ombudsman must yield, except, where there is estoppel. A public school teacher was charged with falsification, dishonesty and gave misconduct before the Ombudsman after he failed to produce original copy of his TOR, which authenticity was denied by the school registrar. He filed his counter-affidavit. But he was found guilty of dishonesty and dismissed him from service. SC held: The Magna Carta for Public School Teachers and the Ombudsman Act of 1989 reveal overlapping jurisdiction over administrative cases against public school teachers. Section 9 of the Magna Carta grants jurisdiction to the investigating Committee headed by the School Superintendent over erring public school teachers. But Section 19 of the Ombudsman Act likewise grants jurisdiction to the Ombudsman over acts or omissions that are contrary to law. Section 13 (1), Article XI of the 1987 Constitution empowers the Ombudsman to investigate act or omission that appear to be illegal, unjust, improper or inefficient.


-

-

Deloso vs Domingo defined “illegal act or omission of any official” as any crime committed by a public officer, even if the act or omission is not related with the performance of official duty. Ombudsman vs Estandarte rules that per Magna Carta for Public School Teachers, original jurisdiction over administrative cases against public school teachers pertains to the School Superintendent. Purpose is to impose a separate standard and procedural requirement for administrative cases involving public school teachers.

!

!

EXCEPT: when there is estoppel In this case, Galicia is estopped because he was given due process and he filed his counter-affidavit. It was only when the decision was adverse to him that he raised the issue of lack of jurisdiction for the first time. (Ombudsman vs Galicia) The public school teacher is estopped from questioning the jurisdiction of the Ombudsman because he was given sufficient opportunity to be heard and he submitted his defenses. (Alcala vs Villar) The administrative disciplinary authority of the Ombudsman is not merely recommendatory, but mandatory Ombudsman vs Beltran An employee of the Tricycle Regulatory Office was dismissed b y the Ombudsman after being found guilty of misconduct for failure to remit fees collected from tricycle drivers. SC held: Ledesma vs Court of Appeals overruled a mere obiter dictum the Tapiador decision that says the administrative disciplinary authority of the Ombudsman is merely recommendatory. Section 13 (3), Article XI of the Constitution that directs the Ombudsman to recommend removal, suspension, fine, censure and prosecution of public officers found to be at fault should not be interpreted literally. When read with the pertinent provisions of the Ombudsman Act, the full administrative disciplinary authority is mandatory, and not merely advisory.

!

!

!

!

!

Acop vs Ombudsman SC ruled that the constitutional powers of the Ombudsman are not exclusive. Congress is authorized to legislate additional powers hence it passed the Ombudsman Act of 1989 empowering the Ombudsman to directly remove, suspend, fine, censure and prosecute public officers. !

Ombudsman vs CA SC ruled that its disciplinary authority covers the gamut of administrative adjudication. It entails authority to receive complaints, investigate, hear, summon witnesses, require documents, preventively suspend, determine and impose appropriate penalty. It is the real party-in-interest in administrative cases because it stands to suffer if decisions adverse to it attain finality. If deprived of disciplinary authority, enforcement of its mandated functions as protector of the people is defeated. ! !

•

The word “recommend” is mandatory and the proper officer whom it is coursed through has no choice but to enforce it Ombudsman vs Court of Appeals and Santos Santos is LTFRB special collection and disbursing officer who was dismissed by the Ombudsman for dishonesty after she was found by COA with a cash shortage. She went to the CA, saying that the Ombudsman cannot directly dismiss her because its disciplinary power is merely recommendatory. The CA agreed with her. Sec. 13(3), Article XI of the 1987 Constitution “Direct the officer concerned to take appropr iate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.” Sec. 15(3) of R.A. 6770: !

!

!

“x x x or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith;” It is only when the officer fails to act that the Ombudsman is empowered to enforce and compel such officer to act. If R.A. 6770 empowered the Ombudsman to directly remove, it should have placed the word “enforce” at the start of the provision – “or enforce its disciplinary authority.” “The Office of the Ombudsm an shall have disciplinary authority over all elective and appointive officials of the Government and it’s subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries.” SC held: Do not be too literal. Ledesma vs Court of Appeals said that such literal interpretation is too restrictive and inconsistent with the wisdom and spirit behind the creation of the Office of the Ombudsman. The word “ recommend ” as used in the Constitution and the Ombudsman Act means that the implementation of the order to remove, suspend, demote, fine, censure and prosecute be coursed through the proper officer. And that officer has no choice but enforce it. “Provided, that the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer.” This strongly indicates that “recommendation is not merely advisory in nature but mandatory within the bounds of the law. -

•

The Ombudsman and the President have concurrent jurisdiction to enforce administrative discipline on local elective officials of a highly urbanized city Hagad vs Dadole Local elective officials of a highly urbanized city were charged with falsification before the Ombudsman after they allegedly altered the amount in an appropriation ordinance without authority from the Sangguniang Panlungsod . Separate criminal and administrative cases were docketed by the Ombudsman and their preventive suspension was likewise sought. Ouano moved to dismiss, arguing that the Ombudsman has no more jurisdiction over the administrative case because of the enactment of the Local Government Code of 1991. Section 63 empowers the Office of the President to investigate and impose administrative sanctions against, and preventively suspend, elective officials of a highly urbanized city. Ouano added that there is nothing in the Constitution that gave the Ombudsman superior powers than those of the Office of the President over elective officials. But the Ombudsman denied the motion to dismiss and recommend that Ouano be placed under preventive suspension. He went to the Regional Trial Court asking prohibition and injunction. Presiding Judge Dadole restrained the Ombudsman. But the Ombudsman moved to dismiss. Dadole denied it, saying that the investigative power of the Ombudsman under the Ombudsman Act is too general and vague whereas the LGC provides more specific and well-defined grounds for administrative discipline. Thus, the LGC provides exception to the disciplinary authority of the Ombudsman to investigate local elective officials. SC held: Section 21 of the Ombudsman Act grants the Ombudsman with disciplinary administrative authority over all elective and appointive officials except those removable by impeachment and members of Congress. Whereas, Section 24 authorizes the Ombudsman to preventively suspend any public officer under its investigation. Thus, elective officials of a highly urbanized city may be preventively suspended by it. But Section 61(a) of the LGC says that an administrative complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President. !

!

!

!

!


!

!

•

The Supreme Court required the Solicitor-General to comment since any final resolution of the case is a matter of national concern. The Sol-Gen said that while the LGC conferred on the Office of the President disciplinary authority over local elective officials, such grant is not exclusive. The LGC did not withdraw the power of the Ombudsman under the Ombudsman Act conformably with the constitutional mandate. Indeed, there is nothing in the LGC that indicates it has, expressly or impliedly, repealed the pertinent provisions of the Ombudsman Act. Congress is presumed to have known existing laws on the subject and not to have enacted conflicting statutes. Hence, doubts must be resolved against implied repeal and the laws must be harmonized. Section 61 and 63 of the LGC of 1991 are parallel with Sections 61 and 63 of its precursor, the Government Code of 1983. In that law, the authority to investigate and preventively suspend elective local officials was placed under the Minister of Local Government.

The President and the Ombudsman have concurrent authority to remove the Deputy and Special Prosecutor under certain conditions Gonzales vs Office of the President & Sulit vs Ochoa Gonzales is deputy ombudsman for the military who was dismissed from service. This after the Office of the President found him guilty of gross neglect of duty and grave misconduct constituting betrayal of public trust. The Office of the President based its decision on the findings and recommendations of the Incident Investigation and Review Committee (IIRC) chaired by Justice Secretary de Lima. It was tasked to determine accountability for the hostage-taking incident by Mendoza that left dead and injured foreign tourists. Earlier, the Ombudsman dismissed Mendoza for grave misconduct. He moved to reconsider. While pending, the dismissal order was enforced. The IIRC blamed Gonzales for not acting on motion for reconsideration filed by Mendoza for more than 9 months without justification. Meanwhile, Major Carlos Garcia, his wife and sons were charged with plunder and money laundering by Special Prosecutor Wendell Barreras-Sulit before the Sandiganbayan . Garcia moved to bail but was denied because there is strong prosecution evidence. But suddenly, Sulit sought approval of the bargaining agreement entered into with Garcia. The Sandiganbayan resolved that the change of plea is warranted and the plea bargaining agreement complies with jurisprudential requirements. Outraged by the back deal that could allow Garcia to get off the hook, Congress investigated and recommended to the President that Sulit be dismissed after filing charges for acts or omissions amounting to betrayal of public trust. The office of the President initiated an administrative case against Sulit. But she invoked prematurity and lack of jurisdiction. Contention of Gonzales and Sulit: They should be solely and directly subject to the disciplinary authority of the Ombudsman and not the President. SC held: While the disciplinary authority of the Ombudsman is extensive and covers all public officers except those removable by impeachment, it is not exclusive. Section 8(2) of the Ombudsman Act says that the Deputy or Special Prosecutor may be removed from office by the President for any of the grounds for impeachment of the Ombudsman, after due process. The seeming conflict in the law shows the legislative intent to grant the President and the Ombudsman concurrent disciplinary jurisdiction over the Deputy Ombudsman and the Special Prosecutor. Hagad vs Dadole upheld the plenary power of the Ombudsman to discipline elective officials. But Ombudsman vs Delijero tempered such plenary power by citing Section 23(2) of the Ombudsman Act. It gives the Ombudsman the option to “refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees.” The enactment of the Magna Carta for Public School Teachers intended a standard and a separate set of procedural requirements in connection with administrative proceedings involving public

!

school teachers. Unquestionably, the Ombudsman has jurisdiction to discipline his or her own men. But also unquestionably, the President has concurrent authority with the Ombudsman to remove the deputy and special prosecutor under certain conditions. That it must be for any of the grounds for removal of the Ombudsman. That due process is observed. Section 8(2) is not unconstitutional. As such, the express grant by Section 8(2) on the President to remove a deputy and special prosecutor merely filled the gap in law. The power to remove the deputy and special prosecutor is implied from the power of the President to appoint them. As a general rule, all officers appointed by the President are removable by him, except when the law expressly provides otherwise. Like when the Constitution expressly separates the power to remove from the power to appoint. Examples: Supreme Court Justices appointed by the President but removable by impeachment. Judges of lower courts are appointed by the President but removable by the Supreme Court. The Chairman and Commissioners of the Constitutional Bodies, and the Ombudsman are appointed by the President but removable by impeachment.

!

NOTE: The terms of office, salary, appointments and discipline are reasonably insulated from the whims of the politicians through prescribed term of 7 years, prohibition against salary decreases and fiscal autonomy. !

!

!

!

!

!

!

!

•

It refers to “acts which are just short of being criminal but constitutes gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favouritism, and gross exercise of discretionary powers.” Acts that constitute betrayal of public trust as to warrant removal from office may be less than criminal but must be attended by bad faith and of such gravity and seriousness as the other grounds for impeachment. The tragic hostage-taking incident was the result of a confluence of several unfortunate events including system failure of government response. It cannot be solely attributed to what Gonzales may have negligently failed to do for the quick and complete resolution of the case, or in his error of judgment. The failure to immediately act on a request for early resolution is not, by itself, gross neglect of duty amounting to betrayal of public trust. As a matter of fact, Gonzales recommended it for final approval within 9 days from receipt. Even if there was long delay and unexplained failure to supervise his subordinates, it cannot be considered a malevolent and vicious act amounting to betrayal of public trust. While the Office of the President is vested with concurrent authority with the Ombudsman, neglect of duty or misconduct in office without intentional wrong doing of a grave and serious kind, does not amount to betrayal of public trust. Sulit’s defense of prematurity does not hold water. True, it is the Sandiganbayan that determines the propriety of a plea bargain based on evidence. What the disciplinary authority determines is whether the special prosecutor considered the best interest of the Government or was diligent and efficient in performing her prosecutorial duty when she entered into a plea bargain. But she was found to be inept and negligent in her duty for failing to build a strong case for the government. And instead of pursuing or building a strong case despite the strength of evidence against Garcia, she entered into a plea bargain which is grossly disadvantageous to the government. This could lead to administrative liability hence the Office of the President should continue the investigation.

The Ombudsman has concurrent jurisdiction with the Department of Justice Honasan vs DOJ Panel of Investigationg Prosecutors


!

!

!

!

!

Sen. Honasan was charged with the crime of coup d’etat before the DOJ. He was accused as the brains behind the National Recovery Program aimed to overthrow the government through revolution and replaced with a military junta. This led to the failed Oakwood mutiny. Instead of filing counter-affidavit, he moved to clarify the jurisdiction of the DOJ to conduct preliminary investigation on the case based on the following grounds: Since the imputed acts relate to his public office, it is the Ombudsman, and not the DOJ, that has jurisdiction to conduct preliminary investigation. Should the case be filed, it is with the Sandiganbayan , and not the regular courts since he receives Salary Grade 31 as senator. The DOJ Panel of Investigators merely noted the motion and ordered Honasan to file counter-affidavit. Hence, Honasan filed this petition for Certiorari under Rule 65 alleging grave abuse of dicretion and lack of jurisdiction. Issue: Whether the DOJ has jurisdiction to conduct preliminary investigation over the charge of coup d’etat against a senator. Contention of Honasan: Since the Ombudsman has jurisdiction to conduct preliminary investigation over all public officials, it includes him, because he is a senator. Since Honasan is charged with coup d’etat in relation to his office, the Ombudsman has jurisdiction to conduct preliminary investigation, and not the DOJ. This is because Section 13(1), Article XI of the 1987 Constitution confers on the Ombudsman the power to investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. The 1987 Administrative Code and the Ombudsman Act of 1989 cannot prevail over the Constitution. Joint Circular No.95-001 is null and void for being ultra vires , in violation of the Constitution, beyond the powers granted by law to the Ombudsman and inoperative due to lack of publication. Contention of the DOJ: It has jurisdiction to conduct preliminary investigation pursuant to the Revised Administrative Code. Coup d’etat is not directly related to his public office as a senator. The jurisdiction of the DOJ is a statutory grant under the Revised Administrative Code and is not derived from any of the provisions of the Joint Circular. Contention of the Ombudsman: The DOJ has jurisdiction because coup d’etat falls under the Sandiganbayan only if it’s committed in relation to the office. The Joint Circular need not be published because it is a mere internal arrangement between the DOJ and the Ombudsman and it neither regulates nor penalizes conduct of persons. SC held: The jurisdiction of the DOJ is not derived from the Joint Circular, but from the pertinent provisions of several laws. The Revised Administrative Code says the DOJ is the principal law agency of the government it is both its legal counsel and prosecutor. It is empowered to investigate commission of crimes and prosecute offenders. Section 1, of P.D. 1275 created the National Prosecution Service under the supervision and control of the Justice Secretary which is empowered to investigate and prosecute all violations of penal laws. Section 13(1), Article XI does not exclude other government agencies tasked by law to investigate and prosecute public officials. Otherwise, there would not have been par.8 allowing the Ombudsman to promulgate its rules of procedure, exercise other powers and perform other functions as may be provided by law. As such, the Ombudsman Act of 1989 was enacted empowering the Ombudsman with primary jurisdiction over cases cognizable by the Sandiganbayan. Thus, it may take over, at any stage, investigation of such cases from any investigatory agency of the government. And, pursuant to the authority to lay down its own procedure, the Ombudsman

!

!

recognized its concurrent jurisdiction with other investigative jurisdiction of the government in the prosecution of cases cognizable by the regular courts. As ruled in Cojuangco Jr. Vs PCGG , the power of the Ombudsman to conduct investigation is not exclusive. The jurisdiction over cases cognizable by the Sandiganbayan is concurrent with all investigatory agencies of the government duty authorized to conduct preliminary investigation under the Rules of Criminal Procedure. The only qualification is that, the Ombudsman may take over the investigation at any stage of the exercise of its primary jurisdiction. Deloso vs Domingo ruled that the Ombudsman under the authority of Section 13(1), Article XI has jurisdiction to investigate any crime committed by a public official. The Ombudsman Act makes perfectly clear that the jurisdiction of the Ombudsman encompasses “all kinds of malfeasance, misfeasance, and non-feasance” that have been committed by any officer or employee during his tenure of office. NOTE: Seemingly, the Cojuangco and Deloso rulings contradict each other.

•

Jurisdiction of the Ombudsman to investigate ill-gotten wealth Republic vs Sandiganbayan & Argana The PCGG and the Ombudsman do not have concurrent jurisdiction to investigate cases of ill-gotten wealth. Instead, the jurisdiction of the PCGG and the Ombudsman to investigate cases of ill-gotten wealth are separated by the period of time . For wealth ill-gotten before February 25, 1986, the PCGG has jurisdiction. But thereafter, it pertains to the Ombudsman. !

•

Jurisdiction of the Military Ombudsman over police officers Agbay vs Deputy Ombuds man for the Military On Sept. 7, Agbay was detained for touching the genitals of a minor while aboard a tricycle. Agbay filed before the Ombudsman-Visayas a complaint for delay in the delivery of detained persons against the police officers who refused to release him. By virtue of MC No. 14, the Deputy Ombudsman for the Visayas transferred the case to the Deputy Military Ombudsman for proper disposition. The Military Ombudsman dismissed the case. He moved to reconsider, but was denied. Agbay argued that the Military Ombudsman has no jurisdiction to act on a complaint against police officer because of the civilian character of the Philippine National Police. Acop ruled that the deliberation on the military ombudsman does not yield conclusive evidence that such deputy is prohibited from performing other functions and duties affecting non-military personnel. Section 31 empowers the Ombudsman to deputize and designate personnel of his office, any prosecutor or state prosecutor to assist him in the investigation and prosecution of certain cases. !

!

!

Preventive suspension Lastimosa vs Vasquez A public health nurse filed a criminal complaint for frustrated rape and administrative complaint for immortal acts, abuse of authority and grave misconduct against a municipal mayor before the Office of the Ombudsman. The graft investigator recommended dismissal for the lack of evidence. In the administrative case, she was placed under preventive suspension for 6 months. Thus, she filed this certiorari and prohibition to set aside the orders to file the attempted rape case, to explain why she should not be held in contempt and to place her under preventive suspension. She argued that the Ombudsman and the Prosecutor have concurrent authority to investigate public officers. When the Ombudsman first takes cognizance it excludes the Prosecutor. Thus, it must file the case in court because preparation and filing are part and parcel of preliminary investigation. As such, it must not be referred or delegated. That she investigated just the same i s bec ause the Ombudsman insisted. It has no jurisdi ction because rape was not committed in relation to a public office. As such, it has no authority to cite her in !

!


!

!

!

!

!

•

contempt, aside from prejudicial question, and place her under preventive suspension for disobedience, aside from no basis for 6 months. She was not afforded a chance to refute the charges and the evidence is not strong. SC held: The Ombudsman has the power to investigate and prosecute any act or omission of any public officer when such act or omission appears illegal, unjust, improper or inefficient. This power includes investigation and prosecution of any crime whether or not the acts or omissions relate to, connected or arise from the performance of his duties. It is enough that the act or omission is committed by a public official. In the exercise of this power, the Ombudsman is authorized to designate or deputize prosecutors for assistance under his supervision and control. Once deputized, the prosecutor cannot legally act on his own and refuse to prepare and file the information as directed. Any disobedience is contumacious pursuant to Section 15 (g) of the Ombudsman Act granting it power of contumacy. The argument that she cannot be cited in contempt because her refusal arose out of an administrative and not judicial proceeding has no merit. She herself said in another context that preliminary investigation is a quasi judicial proceeding. Section 21 of the Ombudsman Act grants the Ombudsman disciplinary authority over prosecutors. Section 22 authorizes the Ombudsman to preventively suspend any officer under investigation if in his judgment the evidence of guilt is strong, the charge involves dishonesty, oppression, grave misconduct or neglect in the performance of duty, charges warrant removal and the continued stay may prejudice the case. It continues until the case is terminated but not to exceed 6 months except when the delay in the disposition is due to the fault, negligence or petition of the respondent. Prior notice and hearing are not required because preventive suspension is not a penalty but a mere preliminary step in administrative investigation. Buenaseda vs Flavier ruled that whether the evidence of guilt is strong is left to the determination of the Ombudsman by taking into account the evidence before him. Nera vs Garcia likewise ruled that the disciplining authority is given the discretion to decide when the evidence of guilt is strong. True, 90 days is based on jurisprudence. But it refers to cases where the law is either silent or expressly limits suspension to 90 days. When law is silent as to period of suspension, Section 13 of R.A. 3019 supplies to limit period to 90 days to prevent indefinite suspension. In this case, she was suspended under Sec.24 of the Ombudsman Act expressly setting the maximum period of suspension to 6 months. The contention of prejudicial question has no merit. The two cases arose out of the same act or omission. They may proceed hand in hand, or one over the other. Whatever order does not matter. Appeal does n ot stay the ex ecution of administrative decisions of the Ombudsman penalizing dismissal or suspension Ganaden vs CA Ganaden, Mina, Bautista and Narciso are NPC employees. They were charged with three administrative cases before the Ombudsman for dishonesty, misconduct and acts inimical to public service. Ganaden, Bautista and Narciso were found guilty of dishonesty and suspended for one year. Ganaden and Mina were also found guilty of dishonesty and suspended for one year. They moved to reconsider. But instead, the penalty of suspension modified to dismissal, except for Mina. They filed petitions for review before the Court of Appeals. Meanwhile, they retired early form NPC. When they learned about the decision of dismissal and suspension, they were already employed at the National Transmission Commission. Hence, the Ombudsman directed CEO Ortiz to dismiss and suspend them. Ortiz did. They argued that by virtue of their pending appeal with the Court of Appeals, plus the fact that the CA granted their motion to amend to include Transco as respondent, the decisions enforcing dismissal and suspension are automatically stayed even without a restraining order. The CA denied the motion for contempt, saying the resolution allowing inclusion of respondent did not carry with it the relief of automatic stay of execution. Hence, this petition for certiorari. !

!

!

!

!

!

Contention of petitioners: invoking Lopez vs Court of Appeals and Lapid vs Court of Appeals , they argued that the execution of Ombudsman decision is automatically stayed upon the filing of an appeal and is stayed throughout the pendency of the appeal. SC held: These cases are antiquated. The Ombudsman Rules of Procedure allowing stay of execution pending appeal has been amended on September 15, 2003 by Administrative Order No. 17. It says the Ombudsman decision in administrative cases shall be executed as a matter of course. An appeal shall not stop the decision from being executor. In case the penalty is removal and suspension, and the respondent wins such appeal, he shall be considered under preventive suspension and paid the salary and other emoluments he did not receive by reason of the suspension or removal. Under this provision, a respondent penalized with suspension for more than one month has the right to appeal. But the act of filing an appeal does not stay the executionpursuant to the ruling in In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong and reiterated in Ombudsman vs CA & Barriaga where it said the Ombudsman Rules of Procedure is clear that an appeal does not stay execution.

HAVING SAID THAT, ARE YOU THE MOST BRILLIANT MIND OR THE PALEST INK?

Elections Midterm Transcript 2014

Recommend Documents