ADMINISTRATIVE LAW
ADMINISTRATIVE LAW
- Branch of public law that fixes the organization of the
government and determines competence of authorities who execute the
law and indicates to the individual remedies for the violations of
his rights.
I. Administrative Bodies or Agencies- A body, other than the
courts and the legislature, endowed with quasi-legislative and
quasi-judicial powers for the purpose of enabling it to carry out
laws entrusted to it for enforcement or execution.
How Created:
by constitutional provision;
by legislative enactment; and
by authority of law.
II. Powers of Administrative
Bodies:
Quasi-legislative or rule-making power;
Quasi-judicial or adjudicatory power; and
Determinative powers.
Quasi-Legislative or Rule-
Making PowerIn exercise of delegated legislative power,
involving no discretion as to what law shall be, but merely
authority to fix details in execution or enforcement of a policy
set out in law itself.Kinds:
Legislative regulation
Supplementary or detailed legislation, e.g. Rules and
Regulations Implementing the Labor Code;
Contingent regulation
Interpretative legislation, e.g. BIR CircularsRequisites for
valid exercise:
Issued under authority of law;
Within the scope and purview of the law;
Promulgated in accordance with the prescribed procedure:
a.notice and hearing generally, not required; only when:
i.the legislature itself requires it and mandates that the
regulation shall be based on certain facts as determined at an
appropriate investigation;
ii.the regulation is a settlement of a controversy between
specific parties; considered as an administrative adjudication
(Cruz, Philippine Administrative Law, p.42 - 43); or
iii.the administrative rule is in the nature of subordinate
legislation designed to implement a law by providing its details
(CIR v. Court of Appeals, 261 SCRA 236).
b.publication
4.Reasonable
Requisites for Validity of Administrative Rules With Penal
Sanctions:
law itself must declare as punishable the violation of
administrative rule or regulation;
law should define or fix penalty therefor; and
rule/regulation must be published.
Doctrine of Subordinate Legislation power of administrative
agency to promulgate rules and regulations on matters of their own
specialization.
Doctrine of Legislative Approval by Re-enactment - the rules and
regulations promulgated by the proper administrative agency
implementing the law are deemed confirmed and approved by the
Legislature when said law was re-enacted by later legislation or
through codification. The Legislature is presumed to have full
knowledge of the contents of the regulations then at the time of
re-enactment.
Quasi-Legislative FunctionsQuasi-
Judicial Functions
consists of issuance of rules and regulations
refers to its end product called order, reward or decision
general applicability
2. applies to a specific situation
3. prospective; it envisages the promulgation of a rule or
regulation generally applicable in the future
present determination of rights, privileges or duties as of
previous or present time or occurrence
B. Quasi-Judicial or adjudicatory power
Proceedings partake of nature of judicial proceedings.
Administrative body granted authority to promulgate its own rules
of procedure.
Two necessary conditions:
due process; and
jurisdiction
Includes the following powers:
1. Prescribe rules of procedure
2. Subpoena power
3. Contempt Power
Administrative Due Process:
right to a hearing;
tribunal must consider evidence presented;
decision must have something to support itself;
evidence must be substantial;
decision must be based on evidence adduced at hearing or at
least contained in the record and disclosed to parties;
board of judges must act on its independent consideration of
facts and law of the case, and not simply accept view of
subordinate in arriving at a decision; and
decision must be rendered in such a manner that parties to
controversy can know various issues involved and reason for
decision rendered.(Ang Tibay vs CIR, 69 Phil 635)Substantial
Evidence relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.
Administrative Determinations Where Notice and Hearing Not
Necessary:
summary proceedings of distraint and levy upon property of
delinquent taxpayer;
grant of provisional authority for increase of rates, or to
engage in particular line of business;
cancellation of passport where no abuse of discretion is
committed;
summary abatement of nuisance per se which affects safety of
persons or property;
preventive suspension of officer or employee pending
investigation; and
grant or revocation of licenses for permits to operate certain
businesses affecting public order or morals.
Administrative Appeal or Review
Where provided by law, appeal from administrative determination
may be made to higher or superior administrative officer or
body.
By virtue of power of control of President, President himself or
through Department Head may affirm, modify, alter, or reverse
administrative decision of subordinate.
Appellate administrative agency may conduct additional hearing
in appealed case, if deemed necessary.
Res judicata effect of Administritve Decisions
- has the force and binding effect of a final judgment (note:
applies only to judicial and quasi judicial proceedings not to
exercise of administrative functions, Brillantes vs. Castro 99
Phil. 497)
C. Determinative Powers
enabling permit the doing of an act which the law undertakes to
regulate;
directing order the doing or performance of particular acts to
ensure compliance with the law and are often exercised for
corrective purposes
dispensing to relax the general operation of a law or to exempt
from general prohibition, or relieve an individual or a corporation
from an affirmative duty;
examining - also called investigatory power;
summary power to apply compulsion or force against persons or
property to effectuate a legal purpose without judicial warrants to
authorize such actions.III. Exhaustion of
Administrative RemediesWhenever there is an available
administrative remedy provided by law, no judicial recourse can be
made until all such remedies have been availed of and
exhausted.
Doctrine of Prior Resort or (Doctrine of Primary Administrative
Jurisdiction) where there is competence or jurisdiction vested upon
administrative body to act upon a matter, no resort to courts may
be made before such administrative body shall have acted upon the
matter.
Doctrine of Finality of Administrative Action no resort to
courts will be allowed unless administrative action has been
completed and there is nothing left to be done in administrative
structure.
Judicial Relief from Threatened Administrative Action courts
will not render a decree in advance of administrative action and
thereby render such action nugatory. It is not for the court to
stop an administrative officer from performing his statutory duty
for fear he will perform it wrongly.
Effect of Failure to Exhaust Administrative Remedies: as a
general rule, jurisdiction of the court is not affected but the
complaint is vulnerable to dismissal due to lack of cause of
action.
Exceptions to the Doctrine:
doctrine of qualified political agency (when the respondent is a
department secretary whose acts as an alter ego of the President
bears the implied and assumed approval of the latter); except where
law expressly provides exhaustion;
administrative remedy is fruitless;
where there is estoppel on part of administrative agency;
issue involved is purely legal;
administrative action is patently illegal, amounting to lack or
excess of jurisdiction;
where there is unreasonable delay or official inaction;
where there is irreparable injury or threat thereof, unless
judicial recourse is immediately made;
in land case, subject matter is private land;
where law does not make exhaustion a condition precedent to
judicial recourse;
where observance of the doctrine will result in nullification of
claim;
where there are special reasons or circumstances demanding
immediate court action; and
when due process of law is clearly violated.
IV. Judicial Review of Administrative Decisions
When made:
to determine constitutionality or validity of any treaty, law,
ordinance, executive order, or regulation;
to determine jurisdiction of any administrative board,
commission or officer;
to determine any other questions of law; and
to determine questions of facts when necessary to determine
either:
constitutional or jurisdictional issue;
commission of abuse of authority; and
when administrative fact finding body is unduly restricted by an
error of law.
Modes of review:
Statutory;
Non-statutory inherent power of the court to review such
proceedings upon questions of jurisdiction and questions of
law;
Direct proceeding; Collateral attack.
General Rule: Findings of facts of Administrative Agencies
accorded great weight by the Courts.
Exceptions to the Rule:
factual findings not supported by evidence;
findings are vitiated by fraud, imposition or collusion;
procedure which led to factual findings is irregular;
palpable errors are committed; and
grave abuse of discretion, arbitrariness or capriciousness is
manifest.
Brandeis Doctrine of Assimilation of Facts one purports to be
finding of fact but is so involved with and dependent upon a
question of latter,courts will review the entire case including the
latter. law as to be in substance and effect a decision on the
.
LAW ON PUBLIC OFFICERSI.Public Office
-right, authority and duty created and conferred by law, by
which for a given period, either fixed by law or enduring at
pleasure of creating power, and individual is vested with some
sovereign functions of government to be exercised by him for the
benefit of the public.(Fernandez vs Sto Tomas, 234 SCRA
546)Elements of Public Office: (LSDIP)
created by law or ordinance authorized by law;
possess sovereign functions of government to be exercised for
public interests;
functions defined expressly or impliedly by law;
functions exercised by an officer directly under control of law,
not under that of a superior officer unless they are functioned
conferred by law upon inferior officers, who by law, are under
control of a superior; (duties performed independently) and
with permanency or continuity, not temporary or
occasional.Characteristics:
-Public office is a public trust.
-Public office is not property and is outside the commerce of
man. It cannot be subject of a contract. (Cruz, Law on Public
Officers, p.5)ii. Public officers
- individuals vested with public office
Classification of Public Officers:
Executive, legislative and judicial officers;
Discretionary or ministerial officers;
Civil or military officers;
Officers de jure or de facto; and
National, provincial or municipal officialsEligibility and
qualification:
two senses:
may refer to endowments, qualities or attributes which make an
individual eligible for public office;
may refer to the act of entering into performance of functions
of public office.
Authority to prescribe qualification:
when prescribed by Constitution, ordinarily exclusive, the
legislature may not increase or reduce qualifications except when
Constitution itself provides otherwise as when only minimum or no
qualifications are prescribed( ex: Art XIII Sec 17 (2), Art VIII
Sec 7 (2) Consti) ;
when office created by statute, Congress has generally plenary
power to prescribe qualification but such must be:
germane to purpose of office; and
not too specific so as to refer to only one individual.
iii. De Facto Officers
one who has reputation of being an officer that he assumes to
be, and yet is not an officer in point of law.
a person is a de facto officer where the duties of the office
are exercised under any of the following circumstances:
1.Without a known appointment or election, but under such
circumstances of reputation or acquiescence as were calculated to
induce people, without inquiry, to submit to or invoke his action,
supposing him to the be the officer he assumed to be; or
2.Under color of a known and valid appointment or election, but
where the officer has failed to conform to some precedent
requirement or condition (e.g., taking an oath or giving a
bond);
3.Under color of a known election or appointment, void
because:
a.the officer was not eligible;
b.there was a want of power in the electing or appointing
body;
c.there was a defect or irregularity in its exercise;
such ineligibility, want of power, or defect being unknown to
the public.
4.Under color of an election or an appointment by or pursuant to
a public, unconstitutional law, before the same is adjudged to be
such.
Note: Here, what is unconstitutional is not the act creating the
office, but the act by which the officer is appointed to an office
legally existing. (Norton v. County of Shelby)
Requisites:
valid existing office;
actual physical possession of said office;
color of title to office;
by reputation or acquiescence;
known or valid appointment or election but officer failed to
conform with legal requirements;
known appointment or election but void because of ineligibility
of officer or want of authority of appointing or electing authority
or irregularity in appointment or election not known to public;
and
known appointment or election pursuant to unconstitutional law
before declaration of unconstitutionality.
De Jure
OfficerDe Facto
Officer
rests on the right
on reputation
has lawful or title to the officehas possession and performs the
duties under color of right without being technically qualified in
all points of law to act
cannot be removed in a direct proceedingmay be ousted in a
direct proceeding against him.
DE FACTO OFFICERINTRUDER
officer under any of the 4 circumstances mentionedone who takes
possession of an office and undertakes to act officially without
any authority, either actual or apparent
has color of right or title to office
has neither lawful title nor color of right or title to
office
acts are valid as to the public until such time as his title to
the office is adjudged insufficientacts are absolutely void and can
be impeached in any proceeding at any time unless and until he
continues to act for so long a time as to afford a presumption of
his right to act
entitled to compensation for services renderednot entitled to
compensation
Legal Effects of Acts
-valid insofar as they affect the public
Entitlement to Salaries
General Rule: rightful incumbent may recover from de facto
officer salary received by latter during time of wrongful tenure
even though latter is in good faith and under color of
title.(Monroy v. CA, 20 SCRA 620)
Exception: when there is no de jure public officer, de facto
officer entitled to salaries for period when he actually discharged
functions.(Civil Liberties Union v. Exec. Sec., 194 SCRA
317)Challenge to a De Facto Officer: must be in a direct proceeding
where the title will be the principal issueIV. Commencement of
Official relations:
by appointment; or
by election
Appointment selection, by authority vested with power, of
individual who is to perform functions of a given office.
Essentially a discretionary power and must be performed by the
officer in which it is vested according to his best lights, the
only condition being that the appointee should possess the minimum
qualification requirements prescribed by law for the position
(Nachura, Reviewer in Political Law, p. 305)
Commission written evidence of appointment.
Designation imposition of additional duties, usually by law, on
a person already in public office.
Classification of Appointments:
Permanent extended to person possessing requisite qualification
for the position and thus enjoys security of tenure;
Temporary acting appointment, given to a non-civil service
eligible is without a definite tenure and is dependent upon the
pleasure of the appointing power;
Provisional- is one which may be issued upon prior authorization
of the Commissioner of Civil service in accordance with the
provisions of the Civil Service Law and the rule and standards to a
person who has no t qualified in an appropriate examination but who
otherwise meets the requirements for appointment to a regular
position in the competitive service, whenever a vacancy occurs and
the filling thereof is necessary in the interest of the service and
there is no appropriate register of those who are eligible at the
time of appointment; Regular made by President while Congress is in
session and becomes effective after nomination is confirmed by the
Commission on Appointments and continues until the end of term;
and
Ad-interim
Recess -- made while Congress is not in session, before
confirmation, is immediately effective, and ceases to be valid if
disapproved or bypassed by CA upon next adjournment of
Congress;
Midnight made by the President before his term expires, whether
or not this is confirmed by the Commission on Appointments.
Regular appointmentAd interim appointment
Made during the legislative sessionMade during the recess
Made only after the nomination is confirmed by the Commission on
Appointments (CA) Made before such confirmation
Once confirmed by the CA continues until t he end of the term of
the appointeeShall cease to be valid if disapproved by the CA or
upon the next adjournment
Nepotism all appointments in the national, provincial, city and
municipal governments or in any branch or instrumentality thereof,
including GOCC, made in favor of a relative of the (1) appointing
or (2) recommending authority or of the (3) chief of the bureau or
office or of the (4) persons exercising immediate supervision over
him. A relative is one within the 3rd degree either of
consanguinity or affinity
Vacancy when an office is empty and without a legally qualified
incumbent appointed or elected to it with a lawful right to
exercise its powers and performs its duties.
Classifications of vacancy:
original when an office is created and no one has been appointed
to fill it;
constructive when the incumbent has no legal right or claim to
continue in office and can be legally replaced by another
functionary;
accidental when the incumbent having died, resigned, or been
removed;
absolute when the term of an incumbent having expired and the
latter not having held over, no successor is in being who is
legally qualified to assume the office.
V. Powers and Duties of a
Public Officer:
Ministerial discharge is imperative and requires neither
judgment nor discretion, mandamus will lie; and
Discretionary imposed by law wherein officer has right to decide
how and when duty shall be performed, mandamus will not lie.
Liability of Public Officer
General Rule: not liable for injuries sustained by another as a
consequence of official acts done within the scope of his
authority, except as otherwise provided by law.
A Public Officer shall not be civilly liable for acts done in
the performance of his duties Exceptions:
statutory liability under the Civil Code (Arts. 27, 32 and
34);
When there is a clear showing of bad faith, malice or negligence
(Administrative Code of 1987);
liability on contracts; and
liability on tort .
Threefold Liability Rule wrongful acts or omissions of public
officers may give rise to civil, criminal, and administrative
liability. (CAC liability rule)
Liability of Ministerial Officers:
Nonfeasance neglect or refusal to perform an act which is
officers legal obligation to perform;
Misfeasance failure to use that degree of care, skill and
diligence required in the performance of official duty; and
Malfeasance doing, through ignorance, inattention or malice, of
an act which he had no legal right to perform.
Doctrine of Command Responsibility
A superior officer is liable for acts of a subordinate when:
(ERCAL)
he negligently or willfully employs or retains unfit or
incompetent subordinates;
he negligently or willfully fails to require subordinate to
conform to prescribed regulations;
he negligently or carelessly oversees business of office as to
furnish subordinate an opportunity for default;
he directed or authorized or cooperated in the wrong; or
law expressly makes him liable.Under the Revised Admin. Code of
1987, A Superior Officer shall be liable for acts of subordinate
officers only if he has actually authorized be written order the
specific act or misconduct complained. Subordinate officers are
also liable for willful or negligent acts even if he acted under
orders if such acts are contrary to law, morals, public policy and
good customs
Preventive Suspension
- a precautionary measure so that an employee who is formally
charged of an offense may be separated from the scene of his
alleged misfeasance while the same is being investigated (Bautista
v. Peralta, 18 SCRA 223)
- need not be preceded by prior notice and hearing since it is
not a penalty but only a preliminary step in an administrative
investigation (Lastimosa v. Vasquez, 243 SCRA 497)
- the period of preventive suspension cannot be deducted from
whatever penalty may be imposed upon the erring officer (CSC
Resolution No. 90-1066)
PENDING
INVESTIGATION
[Sec.51, E.O.292]PENDING
APPEAL
[Sec.27(4), E.O. 292]
not a penalty but only a means of enabling the disciplinary
authority to conduct an unhampered investigation. Punitive in
character
no compensation due for the period of suspension even if found
innocent of the charges.If exonerated, he should be reinstated with
full pay for the period of suspension.
Rules on Preventive Suspension:
1.Appointive Officials
Not a Presidential Appointee (Secs. 41-42, P.D. 807):
a.by whom the proper disciplining authority may preventively
suspend;
b.against whom any subordinate officer or employee under such
authority;
when pending an investigation;
grounds if the charge against such officer or employee
involves:
i.dishonesty;
ii.oppression or grave misconduct;
iii.neglect in the performance of duty; or
if there are reasons to believe that respondent is guilty of the
charges which would warrant his removal from the service
duration the administrative investigation must be terminated
within 90 days; otherwise, the respondent shall be automatically
reinstated unless the delay in the disposition of the case is due
to the fault, negligence or petition of the respondent, in which
case the period of delay shall not be counted in computing the
period of suspension.
A Presidential Appointee:
a.can only be investigated and removed from office after due
notice and hearing by the President of the Philippines under the
principle that the power to remove is inherent in the power to
appoint as can be implied from Sec. 5, R.A.2260 (Villaluz v.
Zaldivar, 15 SCRA 710).
b.the Presidential Commission Against Graft and Corruption
(PCAGC) shall have the power to investigate administrative
complaints against presidential appointees in the executive
department of the government, including GOCCs charged with graft
and corruption involving one or a combination of the following
criteria:
i.presidential appointees with the rank equivalent to or higher
than an Assistant Regional Director;
ii.amount involved is at least P10M;
iii.those which threaten grievous harm or injury to the national
interest; and
iv.those which may be assigned to it by the President (E.O. No.
151 and 151-A).
2.Elective Officials: (Sec 63, R.A. 7160)
a.by whom against whom
i.President elective official of a province, a highly urbanized
or an independent component city;
ii.Governor elective official of a component city or
municipality;
iii.Mayor elective official of a barangay
b.when at any time after the issues are joined;
grounds:
i.reasonable ground to believe that the respondent has committed
the act or acts complained of;
ii.evidence of culpability is strong;
iii.gravity of the offense so warrants;
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
duration:
i.single administrative case not to extend beyond 60 days;
ii.several administrative cases not more than 90 days within a
single year on the same ground or grounds existing and known at the
time of the first suspension
Section 24 of the Ombudsman Act (R.A. 6770) expressly provide
that the preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than 6
months without pay. The preventive suspension for 6 months without
pay is thus according to law (Lastimosa v. Vasquez, 243 SCRA
497)
- R.A. 3019 makes it mandatory for the Sandiganbayan to suspend,
for a maximum period of 90 days unless the case is decided within a
shorter period, any public officer against whom a valid information
is filed charging violation of:
1.R.A. 3019;
2.Book II, Title 7, Revised Penal Code; or
3.offense involving fraud upon government or public funds or
property (Cruz, The Law of Public Officers, pp. 86-87)
VII. Rights of Public Officers:Right to Office just and legal
claim to exercise powers and responsibilities of the public
office.
Term period during which officer may claim to hold office as a
right.
Tenure period during which officer actually holds office.
Right to Salary
Basis: legal title to office and the fact the law attaches
compensation to the office.
Salary compensation provided to be paid to public officer for
his services.
Preventive Suspension public officer not entitled during the
period of preventive suspension, but upon exoneration and
reinstatement he must be paid full salaries and emoluments during
such period.
Back salaries are also payable to an officer illegally dismissed
or otherwise unjustly deprived of his office the right to recover
accruing from the date of deprivation. The claim for back salaries
must be coupled with a claim for reinstatement and subject to the
prescriptive period of one (1) year. (Cruz, Law on Public Officers,
p126-126)
Forms of Compensation:
salary personal compensation to be paid to public officer for
his services and it is generally a fixed annual or periodical
payment depending on the time and not on the amount of the service
he may render;
per diem allowance for days actually spent in the performance of
official duties;
honorarium something given as not as a matter of obligation, but
in appreciation for services rendered;
fee payment for services rendered or on commission on moneys
officially passing through their hands; and
emoluments profits arising from the office, received as
compensation for services or which is annexed to the office as
salary, fees, or perquisites.
3. Right to Preference in PromotionPromotion movement from one
position to another with increase in duties and responsibilities as
authorized by law and usually accompanied by an increase in
pay.
Next-in-Rank Rule the person next in rank shall be given
preference in promotion when the position immediately above his is
vacated. But the appointing authority still exercises his
discretion and is not bound by this rule.
Appointing officer is only required to give special reasons for
not appointing officer next in rank if he fills vacancy by
promotion in disregard of the next in rank rule. (Pineda vs.
Claudio, 28 SCRA 34)Automatic Reversion Rule all appointments
involved in chain of promotions must be submitted simultaneously
for approval by the Commission, the disapproval of the appointment
of a person proposed to a higher position invalidates the promotion
of those in the lower positions and automatically restores them to
their former positions.
Right to vacation leave and sick leave with pay;
Right to maternity leave;
Right to pension and gratuity;
Pension regular allowance paid to an individual or a group of
individuals by the government in consideration of services rendered
or in recognition of merit, civil or military.
Gratuity a donation and an act of pure liberality on the part of
the State.
Right to retirement pay;
Right to reimbursement for expenses incurred in performance of
duty;Right to be indemnified against any liability which they may
incur in bona fide discharge of duties; and
Right to longevity pay.Right to Self-OrganizationArt III, Sec 8
1987Consti. Note: Civil servants are now given the right to self
organize but they may not stage strikes (see: SSS Employees Assoc.
vs. CA, 175 SCRA 686)VIII. Modes of Termination
Official Relationship:
(tr3a3p difc2it)
expiration of term or tenure;
reaching the age limit;
resignation;
recall;
removal;
abandonment;
acceptance of incompatible office;
abolition of office;
prescription of right to office (within one year after the cause
of ouster or the right to hold such office or position arose);
impeachment;
death;
failure to assume elective office within 6 months from
proclamation;
conviction of a crime; and
filing of certificate of candidacy.
When public officer holds office at pleasure of appointing
power, his replacement amounts to expiration of his term, not
removal.(Alajar vs Alba, 100 Phil 683)
Principle of Hold-Over if no express or implied Constitutional
or statutory provision to the contrary, public officer is entitled
to hold office until successor has been chosen and shall have
qualified.
Purpose: to prevent hiatus in public office. (But subject to
Art. 237 of RPC)
Retirement:
Members of Judiciary : 70 years of age
Other government officers and employees : 65 years of age
Optional retirement age: after rendition of minimum number of
years of service.
Accepting Authority for Resignation:
to competent authority provided by law;
If law is silent and public officer is appointed, tender to
appointing officer;
If law is silent and public officer is elected, tender to
officer authorized by law to call election to fill vacancy:
President and Vice-President - Congress
Members of Congress - respective Chambers
Governors, Vice Governors, Mayors and Vice Mayors of HUCs and
independent component cities - President.
Municipal Mayors and Vice Mayors/City Mayors and Vice Mayors of
component cities - Provincial Governor;
Sanggunian Members Sanggunian concerned; and
Elective Barangay Officials Municipal or City Mayors
Recall - termination of official relationship for loss of
confidence prior to expiration of his term through the will of the
people.Limitations on Recall:
any elective official may be subject of a recall election only
once during his term of office for loss of confidence; and
no recall shall take place within one year from date of the
officials assumption to office or one year immediately preceding a
regular local election.
Procedure for Recall (Secs. 70-72, R.A. 7160)1.Initiation of the
Recall Process:
a.by a Preparatory Recall Assembly (PRA) composed of:
i.Provincial mayors, vice mayors and sanggunian (sg) members of
the municipalities and component cities;
ii.City punong barangay and (sg) barangay members;
iii. Legislative District:
iiia.SG Panlalawigan municipal officials in the district;
iiib.SG Panglunsod barangay officials in the district;
iv.Municipal - punong barangay and (sg) barangay members;
majority of the PRA members shall convene in session in a public
place;
recall of the officials concerned shall be validly initiated
through a resolution adopted by a majority of all the PRA members
concerned
b.by the Registered Voters (RV) in the province, city,
municipality or barangay (LGU) concerned - at least 25% of the
total number of RV in the LGU concerned during the election in
which the local official sought to be recalled was elected;
i.written petition filed with the COMELEC in the presence of the
representative of the petitioner and a representative of the
official sought to be recalled, and in a public place of the
LGU;
ii.COMELEC shall cause the publication of the petition in a
public and conspicuous place for a period of not less than 10 days
nor more than 20 days
iii.upon lapse of the said period, COMELEC shall announce the
acceptance of candidates and shall prepare the list of candidates
which shall include the name of the official sought to be
recalled
Election on Recall COMELEC shall set the date of the election on
recall:
a.for barangay, city or municipal officials not later than 30
days after the filing of the resolution or petition;
b.for provincial officials - not later than 45 days after the
filing of the resolution or petition;
Effectivity of Recall 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.
ELECTION LAWi.Suffrage
- right to vote in election of officers chosen by people and in
the determination of questions submitted to people. It
includes:
election;
plebiscite;
initiative; and
referendum.
Election means by which people choose their officials for a
definite and fixed period and to whom they entrust for time being
the exercise of powers of government.
Kinds:
Regular election one provided by law for election of officers
either nationwide or in certain subdivisions thereof, after
expiration of full term of former members; and
Special election one held to fill vacancy in office before
expiration of full term for which incumbent was elected.
Failure of Elections there are only 3 instances where a failure
of elections may be declared, namely:
The election in any polling place has not been held on the date
fixed on account of force majeure, violence, terrorism, fraud, or
other analogous causes;
The election in any polling place had been suspended before the
hour fixed by law for the closing of the voting on account of force
majeure, violence, terrorism, fraud, or other analogous causes;
and
After the voting and during the preparation and transmission of
the election returns or in the custody or canvass thereof such
election results in a failure to elect on account of force majeure,
violence,
terrorism, fraud or other analogous causes. (Joseph Peter Sison
v. COMELEC, G.R. No. 134096, March 3, 1999)
What is common in these three instances is the resulting failure
to elect. In the first instance, no election is held while in the
second, the election is suspended. In the third instance,
circumstances attending the preparation, transmission, custody or
canvass of the election returns cause a failure to elect. The term
failure to elect means nobody emerged as a winner. (Pasandalan vs.
Comelec, G.R. No. 150312, July 18, 2002)
The causes for the declaration of a failure of election may
occur before or after the casting of votes or on the day of the
election. (Sec. 4, R.A. 7166)
The COMELEC shall call for the holding or continuation of the
election on a date reasonably close to the date of the election not
held, suspended, or which resulted in a failure to elect but not
later than 30 days after the cessation of the cause of such
suspension or failure to elect. (Sec. 6, B.P. 881)
In such election, the location of polling places shall be the
same as that of the preceding regular election. However, changes
may be initiated by written petition of the majority of the voters
of the precinct or agreement of all the political parties or by
resolution of the Comelec after notice and hearing. (Cawasa vs.
Comelec, G.R. No. 150469, July 3, 2002)
Postponement of Elections - An election may be postponed by the
COMELEC either motu proprio or upon a verified petition by any
interested party when there is violence, terrorism, loss or
destruction of election paraphernalia or records, force majeure, or
other analogous cause of such a nature that the holding of a free,
orderly and honest election becomes impossible in any political
subdivision. (Sec. 5, B.P. 881)
The COMELEC shall call for the holding of the election on a date
reasonably close to the date of the election not held, suspended,
or which resulted in a failure to elect but not later than 30 days
after the cessation of the cause for such postponement or
suspension of the election or failure to elect. (Sec. 5, B.P.
881)
Qualification for Suffrage:
Filipino citizen;
At least 18 years of age;
Resident of the Philippines for at least one year;
Resident of place where he proposes to vote for at least 6
months; and
Not otherwise disqualified by law.
Disqualification:
person convicted by final judgment to suffer imprisonment for
not less than 1 year, unless pardoned or granted amnesty; but right
reacquired upon expiration of 5 years after service of
sentence;
person adjudged by final judgment of having committed any crime
involving disloyalty to government or any crime against national
security; but right is reacquired upon expiration of 5 years after
service of sentence; and
insane or incompetent persons as declared by competent authority
(Sec. 118, OEC).
II. Political Party
- organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct of
government and which, as the most immediate means of securing their
adoption, regularly nominates and supports certain of its leaders
and members as candidate in public office. (Bayan Muna v. Comelec,
GR No. 147613, June 28, 2001)
To acquire juridical personality and to entitle it to rights and
privileges granted to political parties, it must be registered with
COMELEC
policies for the general conduct of government and which, as the
most immediate means of securing their adoption, regularly
nominates and supports certain of its leaders and members as
candidate in public office. (Bayan Muna v. Comelec, GR No. 147613,
June 28, 2001)
To acquire juridical personality and to entitle it to rights and
privileges granted to political parties, it must be registered with
COMELEC.
Groups Disqualified for Registration:
religious denominations or sects;
those who seek to achieve their goals through violence or
unlawful means;
those who refuse to uphold and adhere to Constitution; and
those supported by foreign governments.
Grounds for Cancellation of
Registration:
accepting financial contributions from foreign governments or
their agencies; and
failure to obtain at least 10% of votes casts in constituency
where party fielded candidates.
Party System a free and open party system shall be allowed to
evolve according to free choice of people.
no votes cast in favor of political party, organization or
coalition shall be valid except for those registered under the
party-list system provided in the Constitution;
political parties registered under party-list system shall be
entitled to appoint poll watchers in accordance with law; and
part-list representatives shall constitute 20% of total number
of representatives in the House.
Guidelines for screening party-list participants
The political party, sector, organization or coalition must
represent the marginalized and underrepresented groups identified
in Sec. 5 of RA 7941. Majority of its member-ship should belong to
the marginalized and underrepresented;
While even major political parties are expressly allowed by RA
7941 and the Constitution, they must comply with the declared
statutory policy of Filipino citizens belonging to marginalized and
under-represented sectors to be elected to the House of
Representatives. Thus, they must show that they represent the
interest of the marginalized and underrepresented.
That religious sector may not be represented in the party-list
system; except that priests, imam or pastors may be elected should
they represent not their religious sect but the indigenous
community sector;
A party or an organization must not be disqualified under Sec.
6, RA 7941 as follows:
it is a religious sect or denomination, organization or
association organized for religious purposes;
it advocates violence or unlawful means to seek its goals;
it is a foreign party or organization;
it is receiving support from any foreign government, foreign
political party, foundation, organization, whether directly or
through any of its officers or members or indirectly through third
parties for partisan election purposes;
it violates or fails to comply with laws, rules or regulation
relating to elections;
it declares untruthful statements in its petition;
it has ceased to exist for at least one (1) year; or
it fails to participate in the last two (2) preceding elections
or fails to obtain at least two per centum (2%) of the votes cast
under the party-list system in two (2) preceding elections for the
constituency in which it has registered.
the party or organization must not be an adjunct of, or a
project organized or an entity funded or assisted by, the
government.
the party, including its nominees must comply with the
qualification requirements of section 9, RA 7941 as follows: No
person shall be nominated as party-list representative unless he
is: (a) natural-born citizen of the Philippines; (b) a registered
voter; (c) a resident of the Philippines for a period of not less
than one year immediately preceding the day of the election; (d)
able to read and write; (e) a bona fide member of the party or
organization which he seeks to represent for at least 90 days
preceding the day of the election; and (f) at least 25 years of age
on the day of the election. In case of a nominee of the youth
sector, he must at least be twenty five (25) but not more than
thirty (30) years of age on the day of the election. Any youth
sectoral representative who attains the age of thirty (30) during
his term shall be allowed to continue in office until the
expiration of his terms;
not only the candidate party or organization must represent
marginalized and underrepresented sectors, so also must its
nominees; while lacking the a well-defined political constituency,
the nominee must likewise be able to contribute to the formation
and enactment of appropriate legislation that will benefit the
nation as a whole. (Ang Bagong Bayani-OFW Labor Party, v. COMELEC,
GR No. 147589, June 26, 2001).III. Disqualification of
Candidates:
declared as incompetent or insane by competent authority;
convicted by final judgment for subversion, insurrection,
rebellion or any offense for which he has been sentenced to a
penalty of 18 months imprisonment;
convicted by final judgment for crime involving moral
turpitude;
any person who is permanent resident of or immigrant to a
foreign country; and
one who has violated provisions on:
campaign period;
removal, destruction of lawful election propaganda;
prohibited forms of propaganda;
regulation of propaganda through mass media; and
election offenses.
- When a candidate has not yet been disqualified by final
judgment during the election day and was voted for, the votes cast
in his favor cannot be declared stray. To do so would amount to
disenfranchising the electorate in whom sovereignty resides.
(Codilla vs. Hon. Jose De Venecia, G.R. No. 150605, December 10,
2002)
Nuisance Candidate
COMELEC may motu propio or upon petition of interested party,
refuse to give due course to or cancel certificate of candidacy if
shown that said certificate was filed:
to put election process in mockery or disrepute;
to cause confusion among voters by similarity of names of
registered candidates;
by other circumstances or acts which demonstrate that a
candidate has no bona fide intention to run for office for which
certificate has been filed, and thus prevent a faithful
determination of true will of electorate.
iv. FAIR ELECTIONS ACT OF 2001 (RA 9006)
Lawful election Propaganda (sec. 3):
Written/Printed Materials (does not exceed 8 in. width by 14 in.
length)
Handwritten/printed letters
Posters (not exceeding 2 x 3 ft.)
3 by 8 ft. allowed in announcing, at the site and on the
occasion of a public meeting or rally, may be displayed 5 days
before the date of rally but shall be removed within 24 hours after
said rally.
Print Ads
page in broadsheets and page in tabloids thrice a week per
newspaper, magazine or other publication during the campaign
period
Broadcast Media (i.e. TV and Radio)
National
PositionsLocal
Positions
120 minutes for TV60 minutes for TV
180 minutes for Radio90 minutes for Radio
Prohibited Campaign
Public exhibition of movie, cinematograph or documentary
portraying the life or biography of a candidate during campaign
period;
Public exhibition of a movie, cinematograph or documentary
portrayed by an actor or media personality who is himself a
candidate;
Use of airtime for campaign of a media practitioner who is an
official of a party or a member of the campaign staff of a
candidate or political party;
Limitation on Expenses:
for candidates:
President and Vice President = P10/voter;
Other candidates, if with party = P3/voter;
Other candidates, if without party = P5/voter.
for political parties = P5/voter
Statement of Contribution and Expenses
every candidate and treasurer of political party shall, within
30 days after day of election, file offices of COMELEC the full,
true and itemized statement of all contribution and expenditures in
connection with election.Election Survey
The SC held that Sec. 5.4 of the Fair Election Act prohibiting
publication of survey results 15 days immediately preceding a
national election and 7 days before a local election violates the
constitutional rights of speech, expression, and the press
because:
it imposes a prior restraint on the freedom of expression;
It is a direct and total suppression of a category of expression
even though such suppression is only for a limited period; andthe
governmental interest sought to be promoted can be achieved by
means other than the suppression of freedom of expression. (Social
Weather Station v. Comelec, G.R. No. 147571 May 5, 2001)
Substituted and Substitute Candidate
- in case of valid substitutions after the officials ballots
have been printed, the votes cast for the substituted candidates
shall be considered as stray votes but shall not invalidate the
whole ballot. For this purpose, the official ballots shall provide
for spaces where the voters may write the name of the substitute
candidates if they are voting for the latter: Provided, however,
That if the substitute candidate is of the same family name, this
provision shall not apply.(Sec.12)V. Pre-Proclamation
Controversy Any question pertaining to or affecting proceedings
of Board of Canvassers which may be raised by any candidate or by a
registered political party or coalition of political parties before
the board or directly with COMELEC or any matter raised under
Sections 233, 234, 235, and 236, in relation to preparation,
transmission, receipt, custody and appreciation of election
returns.
Issues which may be raised in a Pre-Proclamation
Controversy:
Illegal composition or proceedings of the board of
Canvassers;
Canvassed election returns are incomplete, contain material
defects, appears to be tampered with or falsified; or contain
discrepancies in the same returns or in other authentic copies
thereof as mentioned in Sec. 233,234,235 and 236 of BP 881;
Election returns were prepared under duress, threat, coercion,
or intimidation, or they are obviously manufactured or not
authentic; and
When substitute of fraudulent returns in controverted polling
places were canvassed, the results of which materially affected the
standing of the aggrieved candidate/s.
ELECTION CONTESTS
Nature: special summary proceeding object of which is to
expedite settlement of controversies between candidates as to who
received majority of legal votes.
Purpose: to ascertain true will of people and duly elected
officer, and this could be achieved by throwing wide open the
appeal before the court.
Contest: any matter involving title or claim of title to an
elective office, made before or after proclamation of winner,
whether or not contestant is claiming office in dispute.
Election, Returns and qualification refers to all matters
affecting validity of the contestees title to the position.
Election conduct of the polls, including the registration of
voters, holding of election campaign, and casting and counting of
votes.
Returns include the canvass of returns and proclamation of
winners, together with questions concerning composition of Board of
Canvassers and authenticity of election returns.
Qualifications matter which could be raised in a quo warranto
proceedings against the proclaimed winner, such as his disloyalty
to the Republic or his ineligibility or inadequacy of his
certificate of candidacy.
Original Exclusive Jurisdiction Over Election Contests
President and Vice-President - Supreme Court en bancSenator -
Senate Electoral Tribunal
Representative - HR Electoral TribunalRegional/Provincial/City -
COMELECMunicipal - RTCBarangay - MTCAppellate Jurisdiction:
For decisions of RTC and MTC
appeal to COMELEC whose decision shall be final and
executory;
For decisions of COMELEC
petition for review on Certiorari with SC within 30 days from
receipt of decision on ground of grave abuse of discretion
amounting to lack or excess of jurisdiction or violation of due
process;
For decisions of Electoral Tribunal
petition for review on Certiorari with SC on ground of grave
abuse of discretion amounting to lack or excess of jurisdiction or
violation of due process.
Actions Which May Be Filed:
Election Protest
- May be filed by any candidate who has filed a certificate of
candidacy and has been voted upon for the same officer;
Grounds:
fraud;
terrorism;
irregularities; or
illegal acts
committed before, during, or after casting and counting of
votes
Time to file: within 10 days from proclamation of results of
election.
Quo warranto
- Filed by any registered voter in the constituency
Grounds:
ineligibility; or
disloyalty to Republic.
Time to file: within 10 days from proclamation of results of
election.
Quo warranto
in Elective
OfficeQuo warranto
in Appointive Office
determination is eligibility of candidate-electdetermination is
legality of appointment
when person elected is declared ineligible, court cannot declare
2nd placer as elected, even if eligible
court may determine as to who among the parties has legal title
to office
ELECTION OFFENSES
Vote-Buying and Vote-Selling
(1) Any person who gives, offers or promises money or anything
of value, gives or promises any office or employment, franchise or
grant, public or private, or makes or offers to make an
expenditure, directly or indirectly, or cause an expenditure to be
made to any person, association, corporation, entity, or community
in order to induce anyone or the public in general to vote for or
against any candidate or withhold his vote in the election, or to
vote for or against any aspirant for the nomination or choice of a
candidate in a convention or similar selection process of a
political party.
(2)Any person, association, corporation, group or community who
solicits or receives, directly or indirectly, any expenditure or
promise of any office or employment, public or private, for any of
the foregoing considerations. (Sec. 261, B.P. 881)
One of the effective ways of preventing the commission of
vote-buying and of prosecuting those committing it is the grant of
immunity from criminal liability in favor of the party (person/s)
whose vote was bought. This grant of immunity will encourage the
recipient or acceptor to come into the open and denounce the
culprit-candidate, and will ensure the successful prosecution of
the criminal case against the latter. (Comelec vs. Hon. Tagle, G.R.
Nos. 148948 & 148951, February 17, 2003)
LAW ON PUBLIC CORPORATION
I. Local Government Code of 1991 (R.A. 7160)
Effectivity: January 1, 1992
Scope of Application of Local
Government Code:
Applicable to: all provinces,
cities,
municipalities,
barangays;
and other political subdivisions as may be created by law;
and
to the extent provided in the Local Government Code:
to officials,
offices, or
agencies of the National Government.
Local Autonomy in its constitutional sense, to polarize LGUs
from over dependence on central government and do not make LGUs
mini-republics or imperium in imperia.
Decentralization of Administration central government delegates
administrative powers to political subdivisions in order to broaden
base of government power and in process make LGUs more responsive
and accountable and ensure their fullest development as
self-reliant communities and make them effective partners in the
pursuit of national development and social progress.
Decentralization of Power involves abdication of political power
in favor of LGUs declared autonomous.(Limbona v. Mengelin, 170 SCRA
786).
Devolution act by which national government confers power and
authority upon various LGUs to perform specific functions and
responsibilities.[Sec.17(e), par.2, LGC].
Declaration of Policy:
Territorial and subdivisions of State shall enjoy genuine and
meaningful local autonomy to enable them to attain fullest
development and make them more effective partners in attaining
national goals;
Ensure accountability of LGUs through institution of effective
mechanisms of recall, initiative and referendum; and
Require all national agencies and offices to conduct periodic
consultations with appropriate LGUs, NGOs and Peoples Organizations
and other concerned sector of community before any project or
program is implemented in their respective jurisdictions.
Rules on Interpretation:
provision on power: liberally interpreted in favor of LGU; in
case of doubt, resolved in favor of devolution of powers;
ordinance or revenue measure: construed strictly against LGU
enacting it and liberally in favor of tax payer;
tax exemptions, incentive or relief granted by LGU: construed
against person claiming;
general welfare provisions: liberally interpreted to give more
powers to LGUs in accelerating economic development and upgrading
quality of life for people in community;
rights and obligations existing on date of effectivity of LGC of
1991 and arising out of contracts or any other source of prestation
involving LGU, shall be governed by original terms and conditions
of said contracts or law in force at time such rights were vested;
and
resolution of controversies arising under LGC of 1991 where no
legal provision or jurisprudence applies, resort may be had to
customs and traditions in place where controversies take place.
II. Public Corporation
- one formed and organized for the government of a portion of
the State.
Elements of Public Corporation:
legal creation or incorporation;
corporate name;
inhabitants; and
territory.
Classes of Corporation:
Quasi-corporation public corporations created as agencies of
State for narrow and limited purposes.
Municipal corporation body politic and corporate constituted by
incorporation of inhabitants of city or town purposes of local
government thereof or as agency of State to assist in civil
government of the country.
Quasi-public corporation private corporation that renders public
service or supplies public wants.Public
CorporationPrivate
Corporation
1. established for purposes of administration of civil and local
governments
1. created for private aim, gain or benefit of members
2. creation of State either by special or general act
2. created by will of incorporators with recognizance of
State
3. involuntary consequence legislation
3. voluntary agreement by and among members
III. De Facto Municipal
CorporationRequisites:
valid law authorizing incorporation;
attempt in good faith to organize under it;
colorable compliance with law; and
assumption of corporate powers.
IV. Territorial and Political
Subdivisions enjoying
Local Autonomy:
Province cluster of municipalities, or municipalities and
component cities, and serves as dynamic mechanism for developmental
processes and effective governance of LGUs within its territorial
jurisdiction.
City composed of more urbanized and developed barangays, serves
as a general purpose government for coordination and delivery of
basic, regular and direct services and effective governance of
inhabitants within its territorial jurisdiction;
Municipality consisting of group of barangays, serves primarily
as a general purpose government for coordination and delivery of
basic, regular and direct services and effective governance of
inhabitants within its territorial jurisdiction;
Barangay basic political unit which serves as primary planning
and implementing unit of government policies, plans, programs,
projects and activities in community, and as a forum wherein
collective views of people may be expressed, crystalized and
considered and where disputes may be amicably settled;
Autonomous Regions created for decentralization of
administration or decentralization of government; and
Special metropolitan political subdivisions created for sole
purpose of coordination of delivery of basic services.
Creation of Municipal Corporations
For province, city or municipality, only by Act of Congress;
For barangays, ordinance passed by respective
SanggunianPlebiscite Requirement approved by a majority of the
votes cast in a plebiscite called for the purpose in the political
unit/s directly affected (Sec. 10, R.A. 7160)
Based on verifiable indicators of viability and projected
capacity to provide services (Sec. 7, R.A. 7160) [Note: see Annex
C]
Beginning of Corporate Existence
upon election and qualification of its chief executive and
majority of members of its Sanggunian, unless some other time is
fixed therefore by law or ordinance creating it.Mode of Inquiry to
Legal Existence of LGU: Quo warranto which is reserved to State or
other direct proceedingsAbolition of LGU:
When income, population, or land area of LGU has been reduced to
less than minimum standards prescribed for its creation. The law or
ordinance abolishing LGU shall specify the province, city,
municipality or barangay with which LGU sought to be abolished will
be incorporated or merged.
Division and Merger of LGUs
shall comply with same requirements, provided:
shall not reduce income, population or land area of LGU
concerned to less than the minimum requirements prescribed;
income classification of original LGU shall not fall below its
current income classification prior to division;
Plebiscite be held in LGUs affected.
Assets and liabilities of creation shall be equitably
distributed between the LGUs affected and new LGU. When municipal
district of other territorial divisions is converted or fused into
a municipality all property rights vested in original territorial
organization shall become vested in government of municipality.
V. POWERS OF LGUs
Classification of Powers of Local Government Units
Express, implied and inherent;
Public or governmental, private or proprietary;
Intramural and extramural; and
Mandatory and directory; ministerial and discretionary.
Governmental Powers of LGU:
General Welfare (Sec. 16, R.A. 7160) statutory grant of police
power to LGUs. It is limited to:
territoriality;
equal protection clause;
due process clause; and
must not be contrary to law.
Delivery of basic services and facilities (Sec. 17, of R.A.
7160);
Power to generate and apply resources (Sec. 18, of R.A.
7160);
Eminent Domain (Sec. 19, of R.A. 7160);
Additional Limitations for Exercise by LGU:
exercise by local chief executive pursuant to an ordinance;
for public use, purpose or welfare for benefit of poor and
landless;
payment of just compensation; and
only after valid and definite offer had been made to, and not
accepted by owner.(Municipality of Paraaque v. V.M. Realty Corp.,
292 SCRA 678)
Reclassification of Lands (Sec. 20 of RA 7160)
Limited by following percentage of total agricultural land
area:
for HUC and independent component cities: 15%;
for component cities and 1st to 3rd class municipalities: 10% ;
and
for 4th to 6th class municipalities: 5%.
Closure and opening of roads (Sec. 21 of RA 7160)
In case of permanent closure:
adequate provision for public safety must be made; and
may be properly used or conveyed for any purpose for which other
real property may be lawfully used or conveyed; provided no freedom
park be permanently closed without provisions or transfer to new
site.
Local legislative power (Secs. 48-59 of RA 7160)
Approval of ordinances:
local chief executive with his signature on each and every
page;
if local chief executive vetoes the same, may be overridden by
2/3 vote of all sanggunian members;
grounds for veto: ordinance is ultra vires or prejudicial to
public welfare;
local chief executive may veto particular item/s of
appropriation ordinance, adoption of local development plan and
public investment plan, or ordinance directing payment of money or
creating liability; and
local chief executive may veto an ordinance only once;
veto communicated to sanggunian within 15 days for province and
10 days for city or municipality.
Requisites for validity:a.must not contravene the Constitution
and any statute;
b.must not be unfair or oppressive;
must not be partial or discriminatory;
must not prohibit, but may regulate trade;
must not be unreasonable; and
must be general in application and consistent with public
policy.
Barangay Chairman has no veto power.
Corporate Powers of LGU:
to have continuous succession in its corporate name;
to sue and be sued;
to have and use a corporate seal;
to acquire and convey real or personal property;
power to enter into contracts;
Requisites of valid municipal contracts:
LGU has express, implied, or inherent power to enter into a
particular contract;
Entered into by proper department, board, committee, or
agent;
Must comply with substantive requirements;
Must comply with formal requirements; and
In case entered into by local chief executive on behalf of LGU,
prior authorization by Sanggunian concerned is needed
to exercise such other powers as granted to corporation, subject
to limitations provided in Local Government Code of 1991 and other
laws.
VI. MUNICIPAL LIABILITY:
rule: Local government units and their officials are not exempt
from liability for death or injury to persons or damage to property
(Sec. 24, R.A. 7160)
1.Statutory provisions on liability:
a.Art. 2189, Civil Code defective condition of roads, streets,
bridges, public buildings, and other public works;
b.Art. 2180(6th par.), Civil Code acts through a special
agent;
Art. 34, Civil Code failure or refusal of a member of the police
force to render aid and protection in case of danger to life and
property
2.for Tort depends if engaged in:
a.governmental functions not liable;
b.proprietary functions liable
for Violation of Law
for Contracts if contract is:
a.intra vires liable;
b.ultra vires not liable
Doctrine of Implied Municipal Liability a municipality may
become obligated upon an implied contract to pay the reasonable
value of the benefits accepted or appropriated by it as to which it
has the general power to contract (Province of Cebu v. IAC, 147
SCRA 447); the doctrine applies to all cases where money or other
property of a party is received under such circumstances that the
general law, independent of an express contract, implies an
obligation to do justice with respect to the same (Nachura,
Reviewer in Political Law, p. 431)
VIi. Qualification of Elective
Local Officials:
citizen of the Philippines;
registered voter of barangay, municipality, city, province, or
district where he intends to be elected;
resident therein for at least 1 year preceding election;
able to read and write Filipino or local language or dialect;
and
age:
23 years of age Governor, Vice Governor, Board Member, Mayor,
Vice Mayor or Member of City Council for HUCs.
21 years of age Mayor or Vice Mayor of ICCs, component cities or
municipalities;
18 years of age members of ICC or component city or municipal
council or punong barangay or member of barangay council;
at least 15 but not 21 years of age candidate for sanggunian
kabataan.
(Sec. 39, RA 7160)
Disqualification of Elective Local Official:
sentenced by final judgment for offense involving moral
turpitude or punishable by 1 year or more of imprisonment within 2
after service of sentence;
those removed from office due to administrative cases;
those convicted by final judgment for violating oath of
allegiance to the Republic;
those with dual citizenship;
fugitives from justice in criminal or non-political cases here
or abroad;
permanent resident in foreign country; and
insane or feeble-minded.(Sec.40, RA.7160)
VIIi. Manner of Election
Elected at large
Governor; Vice Governor;
City or municipal mayor; City or municipal vice-mayor;
Punong barangay,
SK chairman, elected by voters of Katipunan ng KabataanElected
by District
regular members of Sanggunianex-officio members of
Sanggunian
panlalawigan
president of leagues of sanggunian members of component cities
and municipalities; and
president of liga ng mga barangay and pederasyon ng mga
sanggunian kabataan
(ii.)panlunsodpresident of liga ng mga barangay and the
pederasyon ng mga SB
(iii.)bayan
president of liga ng mga barangay and the pederasyon ng mga
sanggunian kabataan
Sectoral representatives women, worker, urban poor, and other
sectors allowed by law.
Date of Election: Every 3 years on 2nd Monday of May, unless
otherwise provided by law.
Term of Office: 3 years starting from noon of June 30 next
following the election or such date as may be provided by law,
except that of elective barangay officials, for maximum of 3
consecutive terms in same position.
Consecutive: After three consecutive terms, an elective local
official cannot seek immediate reelection for a fourth term. The
prohibited election refers to the next regular election for the
same office following the end of the third consecutive term. Any
other subsequent election, like a recall election is no longer
covered by the prohibition (Socrates vs. Comelec, G.R. No. 154512,
November 12, 2002).
ix. Grounds for Disciplinary
Actions:
disloyalty to the Republic;
culpable violation of the Constitution;
dishonesty, oppression, misconduct in office, gross negligence
or dereliction of duty;
commission of offense involving moral turpitude or offense
punishable by at least prision mayor;
abuse of authority;
unauthorized absence for 15 consecutive working days except
sanggunian members;
application for, acquisition of , foreign citizenship or
residence or status of an immigrant of another country; and
such other grounds as may be provided in EC and other laws
Under Sec. 60 of RA 7160 an elective local official may be
removed from office on the grounds enumerated above by order of the
proper court only (Salalima vs Guingona, 257 SCRA 55)