Admelec Midterms
Admelec Midterms
Admelec Midterms
2.
3.
This law refers to the law which controls, or is intended to control, the
administrative operations of government and covers both internal and external
aspects of the executive branch
SCOPE OF ADMINISTRATIVE LAW:
1.
Laws or statutes
2.
3.
The 1987 Administrative Code did not entirely repeal or modify the revised
Administrative Code, only those which are inconsistent with the Code.
both are general laws, and as a rule, special laws prevail over general laws
2.
A general law must give way to special laws on the same subject.
ADMINISTRATIVE BODY
1.
2.
In exercise of their judicial powers, they are given more discretion and laxity as to
technical procedures
3.
JUDICIAL BODY
1.
2.
3.
4.
5.
ADMINISTRATIVE FRAMEWORK
(as provided by 1987 administrative Code)
1.
GOVERNMENT
The corporate governmental entity through which the functions of the
government are exercised.
2.
2.
3.
This entity includes the various arms through which the political authority
is made effective.
AGENCY
This refers to any of the units of the Government. (Departments, bureau, office,
instrumentality, LGU and GOCC.)
INSTRUMENTALITY
Any agency of the National Government which:
1.
2.
3.
4.
5.
1.
Constitution
2.
Legislative Acts
3.
The division of the powers of the government into 3 branches of the government,
which are the Legislative Department, Executive Department, and the Judicial
Department.
2.
The Legislative Department is generally limited to the enactment of the law and
not to implementation or interpretation of the same
3.
4.
A.
They are vested by law with a juridical personality separate and distinct from that
of the Republic.
Their lifetime is contained in their charter and if not expressed, in accordance
with provisions of the Corporate Code.
NAPOCOR, PPA,NHA,PNOC
B.
They do not have a separate juridical personality and their corporate powers are
limited by virtue of a law.
Upon expiration of their term or lifetime as provided for in the law, their powers,
duties and functions, assets and liabilities are reverted back to the Republic,
unless there is a stipulation to the contrary.
Sugar Regulatory Administration is attached to the Off of the President
NTC is attached to the DOTC
2.
Chartered Institution
Any agency organized or operating under a specific charter. They are vested by
law with functions related to specific constitutional policies or objectives.
State universities and colleges, Monetary authority of the state.
ADMINISTRATION
This refers to the public officers and employees who perform duties and powers
in the government.
This includes all persons who is tasked with the duties and powers necessary to
the operations of the government.
This refers to the right, authority and duty created and conferred by law to a
person, for a specific period of time, either as fixed by law or at the pleasure of
the appointing power, which provides him with some sovereign functions of
government which he is required to exercise for the benefit of the public.
Public office refers to either a functional unit of government or a position held by
an individual.
a.
b.
2.
3.
4.
NEDA
5.
CHR
6.
The creation of a public office is a legislative function, except for those created by
the Constitution. All others not established by the Constitution are created by
virtue of statutes enacted by Congress, either expressly or impliedly.
Congress may prescribe the mode of filling the office, its powers and duties and
the abolition of such offices.
POWER TO REORGANIZE
This includes the power to create or abolish public offices.
The power to create and abolish may be delegated to the President or an
executive officer (Authorized reorganization)
REORGANIZATION
The process of restructuring the organization and functional set-up for the
purpose of making it more viable, efficient and effective to the needs of the
public.
This is the means used to reorganize or abolish offices, which is made through a
law directly or indirectly, by authorizing an executive department or agency to
reorganize its office.
This power applies to all offices, including the judicial courts, with the exception
only of those offices provided for in the Constitution.
CHAPTER 2
POWERS OF ADMINISTRATIVE AGENCIES
Public officials possesses powers and not rights. There must be a grant of
authority, whether expressed or implied, to justify any action taken by them. In
the absence of a grant, their actions are deemed invalid and may therefore be
set aside.
Its officials are agents entrusted with the responsibility of discharging the
functions of the office. There is no presumption that they are empowered to
conduct such act. There must be a delegation of authority, and in the absence of
a valid grant, they are not authorised to exercise such power.
DOCTINE OF SEPARATION OF POWERS
The delegation of legislative and judicial functions to other branches is generally
prohibited for the purpose of enforcing the system of check and balance within
the different government branches.
However, the delegation of greater powers by the legislative branch and the
vesting of a larger amount of discretion to administrative and executive agencies
are allowed for the purpose of execution of the laws, which includes the powers
to promulgate their own rules and regulations and the adjudication of claims and
disputes related to the function of their office.
POWERS GRANTED TO ADMINISTRATIVE AGENCIES:
1.
Administrative Powers
2.
Quasi-legislative powers
Administrative agencies are enabled to promulgate rules and regulations
pertaining to their functions
3.
Quasi-judicial powers
Administrative agencies are enabled to interpret and apply the rules and
regulations which they promulgated.
GRANT OF JURISDICTION
The jurisdiction to hear and decide cases, as well as the power to adjudicate,
may be conferred only by the Constitution or statute.
The jurisdiction to try an action carries with it all the incidental powers to employ
their decision and make it effective and enforceable. Unless provided otherwise
by the law, a quasi-judicial body has the power to issue a writ of execution for the
execution of its decision.
The exercise of jurisdiction or quasi-judicial powers requires that there must be a
rule of procedure which must be followed. The rules must provide a reasonable
method to carry out its functions.
NOTES:
1.
2.
MINISTERIAL POWERS
A duty or power which is so clear and specific that it leaves no room for the
exercise of discretion in its performance.
CONCEPTS:
1.
2.
a.
Unauthorised acts, acts made beyond the scope of his authority and
unlawful acts are not deemed errors of the state.
b.
In such cases, only the official is liable thereof and he cannot invoke
immunity of the state as a defense against his personal liability.
3.
PRESUMPTION OF REGULARITY
Government officials are presumed to perform their functions with regularity and
strong evidence is required to attack this presumption.
Acts made by public officials are protected by the presumption of good faith, and
any mistake or error committed by such officers are not actionable unless there is
evidence showing their actions were motivated by malice or gross negligence
amounting to bad faith.
This legal presumption is particularly strong in agencies vested with quasi-judicial
functions or powers.
CHAPTER 3
POWER OF CONTROL, SUPERVISION AND INVESTIGATION
The President and executive and administrative agencies are granted or conferred
powers and functions by the Constitution and by statutes to enforce laws and carry out
governmental functions.
POWERS OF THE PRESIDENT:
1.
2.
3.
4.
1.
ADMINISTRATIVE POWERS
He is the Chief Administrative Officer of the government, and therefore
holds all administrative powers inherent in such position.
b.
EXECUTIVE POWERS
These powers are inherent and necessary to carry out his functions.
1.
2.
2.
3.
4.
5.
6.
7.
8.
9.
10.
2.
3.
4.
5.
2.
3.
4.
5.
To replace, suspend or remove officials who serve at his pleasure, without due
process
2.
2.
3.
2.
To generally oversee the operations of such agencies and insure the effective
management, without interfering with daily operations
2.
3.
To take such actions as necessary for the proper performance of functions, such
as rectification of violations, abuses and mal-administration.
4.
To review and pass upon the budget proposal of the agency or department. He
may not add or increase the budget.
3.
2.
4.
POWER OF INVESTIGATION
1.
2.
Investigation only
a.
b.
2.
3.
his power of supervision and control over all executive offices and
departments,
2.
3.
4.
5.
the Constitution.
administrative functions
2.
rule-making functions
3.
adjudication functions
4.
PRESIDENTIAL AGENCY
The President has the power to create a Presidential Agency tasked to conduct
an investigation on a specific fact-finding activities.
This power includes the authority to :
1.
2.
3.
administer oaths
4.
1.
2.
3.
2.
3.
In the cases where their investigation involves the gathering of facts to be used
as the basis of an administrative charge against a public official, the officials not
entitled to be informed of the findings and the recommendations.
The official is only entitled to be informed of the charge against him, as well as to
the right to a hearing and opportunity to be heard.
INVESTIGATIVE POWERS AS A MAIN FUNCTION
This refers to an agency or an investigative body whose sole power is
investigation. Their function is limited to investigating facts and making
recommendations or findings.
It merely refers its findings and recommendations to another agency who has the
power to adjudicate.
It has no judicial or quasi-judicial powers and cannot grant relief.
It cannot determine probable cause.
(Commission on human rights, NBI)
2.
Their scope covers public officials and employees of the government, its
agencies and instrumentalities, including GOCC.
3.
2.
3.
4.
5.
CHAPTER 4
QUASI-LEGISLATIVE POWER
Legislative power
This refers to the power to make, alter and repeal laws.
This is vested by the Constitution and generally leaves no discretion on the part
of the agency delegated with such powers.
EXCEPTION TO THE DOCTRINE OF SEPARATION OF POWERS OR
DELEGATION OF SUBORDINATE LEGISLATION
The Constitution itself makes allows legislative powers to be delegated to the
Executive Branch, the Judicial Branch and the LGUs.
DELEGATED LEGISLATIVE POWERS GRANTED TO PRESIDENT:
1.
2.
PRESIDENTIAL ISSUANCES
These refers to orders issued by the President in exercise of his ordinance
power. It has the force and effect of law and is binding to the parties concerned.
It includes executive orders, administrative orders, proclamations, memorandums
orders and circulars and general or special orders.
EXECUTIVE ORDERS
This refers to the acts of the President to prescribe or provide rules of a general
and permanent character for the purpose of enforcing a constitutional or statutory
power.
ADMINISTRATIVE ORDERS
Acts of the President in relation to a particular aspect of government operations
and made in pursuance of his duties as administrative head.
PROCLAMATIONS
Acts of the President related to the fixing of a date or the declaration of a public
moment or interest.
MEMORANDUM ORDERS
Acts of the President related to administrative details and pertains to temporary
interest concerning a particular office or agency.
MEMORANDUMCIRCULARS
Acts of the President related to matters within the internal administration for the
purpose of bringing to the attention of the specific head or agency a particular
matter.
GENERAL AND SPECIFIC ORDERS
Acts of the President in his capacity as Commander-in-chief of the AFP.
DELEGATION OF LEGISLATIVE POWER TO THE SUPREME COURT
1.
The Constitution vest with the SC the power to promulgate rules to protect and
enforce constitutional rights, pleadings, practices and procedures in the conduct
of the courts. It includes rules related to the admission to the Bar, the practice of
law and assistance to the underprivileged.
2.
2.
3.
3.
Rules of procedure of the courts and quasi-judicial bodies remain effective and
valid unless it is disapproved by the Supreme Court.
4.
The power to promulgate rules implies also the power to repeal procedural laws
5.
Any statute which provides that any decision made by a quasi-judicial body be
appealable to the Supreme Court is a valid and effective provision only if there is
advise and concurrence from the Supreme Court.
In such a case, Rule 45 of the Rules of Civil Procedure (Certiorari with questions
of law)) applies.
2.
3.
RULE
Statements made by an administrative agency which is off general applicability
and made to implement or interpret laws, as well as fixing its procedures for the
benefit of the general public.
RULE-MAKING
The process made by an administrative agency to make, amend or repeal laws
or rules.
RULE-MAKING POWERS
This refers to the powers of the agencies to issue rules and regulations as part of
their delegated legislative powers in accordance with their functions.
This is an exemption to the doctrine of non-delegation of legislative powers. Its
authority is conferred by law and partakes the nature of a statute. It has the force
and effect of law.
The rules must be within the scope of their authority granted by Legislature. It
must be related and must not exceed its defined scope.
ADMINISTRATIVE FUNCTIONS
These refers to functions which involve the regulation and control over the
conduct and the affairs of individuals for their own welfare and benefit. It covers
the enactment of rules and regulations to carry out the policy of the agency.
This involves acts pertaining to rule-making powers.
QUASI-JUDICIAL POWERS
This refers to the authority granted to administrative bodies to hear and
determine cases related to their general scope of functions.
REQUISITES IN CARRYING OUT QUASI-JUDICIAL FUNCTIONS
1.
2.
3.
4.
2.
3.
The Doctrine of Primary Jurisdiction applies in cases where the action involved is
one exercised in line with its quasi-judicial and adjudicatory functions.
In such cases, the court will not take cognizance of the action unless
administrative remedies have been exhausted.
4.
2.
In the exercise of its rule making powers or legislative powers (issuance of rules
and regulations), notice and hearing is not a requisite.
1.
RULE-MAKING POWER
This refers to the power to issue rules and regulations which have the force and
effect of law.
2.
CONTEMPORANEOUS CONSTRUCTION
This refers to the power to interpret and construe statutes or laws assigned top
them for enforcement.
This may be in the following forms:
3.
a.
b.
c.
2.
A valid rule and regulation has the force and effect of law.
Until such time that it is set aside, the rules are binding.
2.
3.
2.
It must be reasonable
3.
4.
5.
6.
Formal requirements:
1.
publication requirements
2.
4.
Laws shall take effect after 15 days following completion of its publication
in the Official Gazette or newspaper of general circulation, unless
otherwise provided.
b.
Failure to publish even a valid administrative law makes the law void or
invalid.
c.
No publication required:
1.
Interpretative regulations, or
2.
5.
2.
CONTEMPORARY CONSTRUCTION
ADMINISTRATIVE RULES AND REGULATIONS
1.
2.
It carries the binding effect of a law. To be valid and binding, the procedures fixed
for its promulgation must be followed and the scope must be within the statutory
authority granted by Congress.
3.
4.
If an erroneous interpretation was made, the agency may, on their own initiative,
correct such errors. However, no retroactive effect may be applied
5.
2.
IRR
These refers to supplemental or detailed regulations which was meant to fill in
the details of the law.
3.
CONTINGENT LEGISLATION
This refers to the power of an agency to suspend or continue the enforcement or
application of the law.
4.
CIRCULARS
This is also known as interpretative legislation and refers to the power to interpret
provisions of the law in relation to its application.
This has the force and effect of law.
2.
3.
ADMINISTRATIVE PRACTICE
This refers to any formal and informal act of an administrative agency in
construing, interpreting or applying the law.
In the absence of a judicial interpretation by the SC regarding the provisions of
the law or statute, the court must give weight to such interpretations.
As a general rule, such construction placed by an executive or administrative
officer will be adopted in cases where it is deemed necessary to resolve a doubt.
DOCTRINE OF SUBORDINATE LEGISLATION
This refers to the delegated powers given by Congress to government agencies,
in consideration and recognition of their expertise in their field, to promulgate
rules and regulations in relation to the law where such agency is tasked to
enforce.
2.
2.
2.
3.
a.
General regulations
b.
Procedural rules
c.
Legal Opinions
d.
IRR
Notice and hearing is required only when substantial rights of the public may be
affected.
2.
3.
2.
3.
4.
2.
Publication is mandatory
CHAPTER 5
QUASI-JUDICIAL POWERS
QUASI-JUDICIAL
This refers to the action or discretion of a public administrative or executive
officer or agencies to exercise discretion of a judicial nature as part and basis of
their official action.
1.
The proceedings are summary in nature and does not necessarily require
hearing in open court, submission of pleadings generally sufficient.
2.
3.
The body is not bound by the technical rules and procedures on evidence.
4.
5.
QUASI-JUDICIAL BODY
1.
This refers to the body of government other than the courts and legislature who
exercises adjudicative powers which may affect the rights of a person.
2.
3.
ARBITRATION
This refers to the settlement of a dispute or controversy by an impartial 3rd
person whose determination or judgment is based on the evidences and
arguments of the parties in the controversy.
The decision is binding upon the parties to the controversy.
1.
VOLUNTARY ARBITRATION
In this case, the dispute is referred by the parties, pursuant to a contractual
arbitrary clause, to an impartial 3rd party for resolution.
2.
MANDATORY ARBITRATION
In this case, the parties to the dispute is compelled by the government to enter
into an arbitration by an impartial 3rd party or tribunal. The decision is also
binding to the parties.
JURISDICTION, IN GENERAL
1.
2.
Determined by the law or statute in force at the time the action is commenced, it
cannot be determined by the agreement of the parties.
3.
4.
5.
b.
the power to issue rules governing cases raised by appeal to the Office of
the President.
Jurisdiction over the subject matter is conferred by law. It may not be acquired by
the consent, agreement or waiver of the parties or by a unilateral assumption by
the tribunal.
2.
2.
2.
SUBSTANTIAL EVIDENCE
The evidence a reasonable mind may accept as adequate to support a
conclusion, and that its absence is not shown by stressing that there is a contrary
evidence on record, whether direct or circumstantial
JUSTICIABLE CONTROVERSY
It refers to an action initiated against a party by another party having an interest
in the subject matter which is appropriate for judicial determination.
The controversy must be raised by the party entitled to maintain the action.
ADMINISTRATIVE PROCEDURE
A quasi-judicial agency is empowered by the Constitution to make its own rules
and regulations to guide its adjudication process or proceedings.
These rules are effective unless disapproved by the SC.
1.
2.
The Rules of Court are merely suppletory to Rules of Procedures of Quasiadministrative agencies, and the former is used only in case of deficiency or
absence of applicable provisions.
3.
The procedural rules may be altered or modified by the SC in exercise of its rulemaking power.
4.
5.
6.
Also, such proceedings are still bound to observe due process (notice and
hearing).
LICENSING
The act of an agency in the maintenance, control, supervision of licenses. This
includes the granting, renewal, denial, revocation, suspension and withdrawal.
Except in cases of willful violation of laws, or if required by public safety, no
license may be withdrawn, suspended or annulled without notice and hearing.
When a renewal has been filed in a timely manner related to a continuing activity,
the existing license shall not be deemed expired until the renewal application has
been determined.
2.
3.
a.
verified,
b.
c.
Informal Applications
This refers to application of licenses or permits and its renewal.
It may be initiated ex-parte, by an informal application or by a mere letter
sent by a complainant.
These form of complaints become contested when the application is either
opposed or denied, or if shown that there is a need for the person being
complained to be given the opportunity to be heard.
2.
3.
Involves parties
2.
3.
4.
The two action involves the same parties, subject matter and cause of
action.
SUMMONS
This is a writ where the respondent is notified of the action against him and is
required to file his answer thereto.
This is an indispensable requisite of due process in an administrative proceeding,
although it is not strictly construed.
Substantial compliance is sufficient.
STAGES OF AN ADMINISTRATIVE HEARING
1.
2.
3.
NOTICE
To be served at least 5 days before the hearing date.
It shall state date, time and place of hearing.
2.
HEARING
Hearing does not necessarily require a trial-type of presentation of
evidence.
A case may be submitted for resolution based on a stipulation of facts,
admissions of parties, position papers, affidavits and counter-affidavits.
In such cases, due process is not violated since this is deemed an
opportunity on the part of the party to be heard.
In cases where there are issues which cannot be decided upon without a
trial on the case based on merits, then a hearing must be scheduled.
3.
Failure to comply with the twin requirements renders the decision null and
void.
4.
Due process refers to the chance or opportunity given to the parties to be heard
before a determination can be reached.
2.
NOTES:
1.
Failure to observe due process in a proceeding renders any judgment null and
void.
2.
Under such case, the decision may be attacked based on commission of grave
abuse of discretion and violation of due process.
3.
The case may be raised with the CA immediately (grave abuse), without passing
through the hierarchy of administrative remedies.
4.
2.
3.
4.
2.
2.
3.
4.
5.
6.
7.
Notice to parties shall be made stating the decision, the issues involved,
the reason as well as the basis for the decision must be expressed.
8.
The tribunal or officer must have been conferred with jurisdiction to decide
and render judgment on such issues
2.
3.
4.
5.
2.
3.
4.
5.
NUISANCE
KINDS OF NUISANCE
1.
NUISANCE PER SE
This refers to nuisance under any and all circumstances since it is a direct
menace to public health, safety.
These forms of nuisance may be abated immediately and summarily, with no
need of prior notice and hearing or proceeding.
2.
NUISANCE ACCIDENS
This refers to nuisance due to certain conditions or circumstances and is based
on a question of fact.
to abate such nuisance, due hearing before a competent court is a mandatory
requisite.
2.
3.
The filing of charges must be made known to the respondent or the erring
public servant
2.
be in writing
2.
3.
Provisional reliefs (TRO and cease and desist orders) may be granted without
prior notice and hearing
2.
3.
2.
3.
Evidence other than those presented before the tribunal were taken into account
4.
2.
3.
2.
The right to counsel is not part of the procedural due process requirement in an
administrative proceeding.
DECISION
This refers to the entire, or a portion of, final disposition.
This does not cover interlocutory orders.
PERIOD TO RENDER DECISION
Within 30 days after its submission for decision to the tribunal.
This is not mandatory, but merely directory.
SUBMISSION FOR DECISION
It is deemed submitted for decision after both of the parties:
1.
2.
WHERE APPEALED
To the CA through a petition for review
a.
b.
questions of law, or
c.
PUBLICATION
The law requires that all decisions or final orders shall be published and be made
available to the public.
The Records officer are thus required to prepare a register or compilation of the
decisions made for the use of the public.
FINALITY OF THE DECISION
1.
2.
2.
3.
If the law prohibits the filing of a 2nd MR, the agency is precluded from
accepting or entertaining the second motion, and the decision made
becomes final.
4.
2.
3.
2.
3.
An appeal is a purely statutory right and thus, compliance with the requisites is
mandatory.
4.
5.
If the law does not grant an appeal, such remedy cannot be invoked.
6.
In cases where a motion for reconsideration is denied, the movant shall have the
right to perfect an appeal during the REMAINDER OF THE PERIOD TO FILE AN
APPEAL, starting from the date of receipt of the resolution of denial.
7.
ADMINISTRATIVE REVIEW
This refers to the reconsideration or re-examination of a decision of a
subordinate officer or agency by a higher one.
POWER OF REVIEW
Refers to the power which is exercised to determine whether it is necessary to
correct the acts of a subordinate and to see if he performed his duties in accord
with the law.
1.
This power may be exercised motu proprio provided the decision is not yet final
and executory.
This is in exercise of his powers of control over a subordinate, and must be made
only if there is a clear showing of error.
2.
He may also review the decision once an appeal by the aggrieved party is made,
and this is in accordance with the rules of procedure of his agency.
3.
Evidences not formally submitted during the hearing before the agency may not
be submitted for the first time, or on appeal. The reviewing officer or agency may
disregard it except when the issue was not raised before the lower administrative
agency or officer due to denial of presentation.
4.
If the law does not prohibit it, the reviewing agency may conduct further hearings
on the issues of facts.
PRESUMPTION OF LEGALITY
The legal presumption is that an administrative agency has duly performed its
official duty in the action taken in exercise of their quasi-judicial functions.
However, the presumption is deemed non-existent if it deprives a person of real
or personal rights.
FINALITY OF THE DECISION OF AN APPELLATE AGENCY
The decision of an appellate agency becomes final and executory 15 days after
the receipt by the parties of a copy thereof, unless a motion for reconsideration
(MR) is seasonably filed, or a petition for review is filed with the CA
Only 1 MR is allowed.
RES JUDICATA
The Doctrine of Res Judicata applies to a decision made by an administrative
agency once it becomes final.
These decisions are deemed conclusive in relation to the rights of the affected
parties, similar to the decisions made by the regular courts.
EXEMPTIONS:
1.
There is the existence of supervening facts which may change the outcome of
the decision in the interest of justice
2.
In cases where the doctrine of res judicate was not raised or was waived as a
defense .
3.
If the application of the principle would defeat the interest of justice in favor of
technicalities.
CHAPTER 6
DOCTRINE OF PRIMARY JURISDICTION
EXHAUSTION OF ADMINISTRATIVE REMEDIES
1.
In cases where the regular courts have concurrent jurisdiction with the
administrative bodies,
b.
the aggrieved party must first seek relief with the administrative body
c.
d.
NOTES:
a.
b.
The court, moto proprio, may raise the issue of primary jurisdiction, and the
parties cannot make an argument against it.
In such cases:
c.
1.
2.
2.
3.
4.
5.
6.
2.
2.
3.
NOTES:
1.
2.
3.
If the issue involves exercise of legislative powers, then court remedy may
be availed.
4.
When the rules of the administrative agency allows a party to file a motion
for reconsideration of its ruling or decision, the party must therefore file
such motion before filing a petition for certiorari (Rule 65), since such
motion is deemed an adequate remedy, in accordance with this doctrine.
It does not affect the jurisdiction of the regular courts. However, it will
deprive the aggrieved party of a cause of action.
As such, his action may be dismissed on such grounds.
2.
If no motion to dismiss was filed by opposing party, the court may proceed
with the hearing of the case since this constitutes a waiver on the
opposing party to invoke such ground.
2.
3.
4.
5.
6.
When the high government official to whom relief was sought fails to
act on the matter, or there is an unreasonable delay
7.
8.
9.
GENERAL RULE
The principle of primary jurisdiction applies in cases filed with the trial court, but
the proceeding is suspended until the referral made with the administrative
agency concerned is determined.
The doctrine of exhaustion of administrative remedies applies in cases where the
prescribed action should be addressed to the administrative agency concerned,
except if the action in which it falls under the exemption to the general rule, in
which case a petition for certiorari may be filed with the CA
In both doctrines, failure to make a timely objection is deemed a waiver of such
right, and the court is no longer precluded to proceed with its deliberation and
determination.
CHAPTER 7
JUDICIAL REVIEW
1.
2.
Questions of law
2.
Questions of fact
3.
NOTES:
1.
Some laws provide for judicial review while others are silent.
2.
GENERAL RULES:
A.
B.
3.
The following actions are the remedy available for decisions and rules made by
an administrative agency:
1.
2.
Appeal
Available when the law provides for such a remedy.
The decision must be appealed through an ordinary civil action within the
prescribed time (30 days from
receipt of such decision)
3.
4.
5.
6.
2.
2.
3.
4.
2.
3.
4.
5.
6.
7.
8.
Questions of law
2.
Questions of fact
3.
Mix of both
2.
Reasonable , and
3.
The court cannot substitute the rules with its judgment, it can only make a
determination of the propriety and correctness of the rules.
2.
ADMINISTRATIVE DECISIONS
The general rule is that the courts have no supervisory powers over the
proceedings and decisions of an administrative agency, especially those made in
exercise of its judgment, discretion and findings of fact.
2.
b.
c.
3.
2.
preliminary injunction, or
3.
4.
1.
2.
A.
B.
5.
The orders or decisions have, upon reaching finality, the force and effect of law
and it can no longer be assialed under the principle of res judicata.
EXPANDED JURISDICTION
The Constitution grants the courts the power to review the decisions made by
administrative agencies for the purpose of determining if such decisions were
made within the bounds of the limits set by the Constitution.
The function of the courts, in such cases, is merely to check whether the act of
the agency was beyond the authority it was granted, it cannot make a
determination of whether such agency made an error in their decision, or that the
law should have taken a different view.
DOCTRINE OF POLITICAL QUESTION (DOCTRINE OF SEPARATION OF POWERS)
A political question is a question of policy, and therefore refers to questions
which are to be decided upon by the people in their sovereign capacity, or
through the full discretionary authority delegated to the executive branch.
It concerns itself with the wisdom of a particular act or measure, not the legality
of such act or measure.
PETITION FOR REVIEW (RULE 43)
1.
A petition for review is an ordinary appeal from the decisions or final orders made
by a quasi-judicial agencies exercising quasi-judicial powers
2.
3.
The petition raises questions of fact, questions of law, or a mix of both questions
of law and fact.
4.
It must be filed within 15 days from notice of the order or decision denying the
MR.
5.
QUESTIONS OF LAW
This refers to questions involving doubts or differences of opinions as to what the
law is on a given state of facts, and how it is to be applied.
QUESTIONS OF FACT
This refers to questions wherein the doubt to be resolved pertains as to the truth
or falsehood of the alleged facts.
When the factual findings of the administrative agency and the initial factfinding agency is conflicting
2.
3.
4.
5.
When the agency went beyond the issues of the case and the findings are
contrary to the admissions of the parties
6.
7.
8.
9.
When the findings are conclusions without citing the specific evidence in
which they were based.
10.
When there was an absence of evidence and such findings contradict the
evidence on record.
without jurisdiction, or
2.
in excess of jurisdiction, or
3.
2.
3.
4.
The petition may be filed with the RTC. the CA or the SC, as the case may be.
5.
2.
errors of jurisdiction
3.
2.
2.
unlawfully excludes another from the use and enjoyment of a right or office
to which the latter is entitled to.
2.
There must be no other plain, speedy and adequate remedy afforded by law.
3.
Upon the granting of the petition, the respondent is commanded to do the act
required of him.
INJUNCTIVE RELIEF
1.
In a petition for certiorari, prohibition or mandamus, the court may issue a status
quo order to maintain the last, actual, peaceable and uncontested status of
things which preceded the controversy.
2.
Decisions made by the CA may be elevated to the SC under a petition for review
for certiorari (Rule 45).
2.
The review of the SC pertains to its supervisory powers to review the judgment of
the CA, Sandiganbayan, RTC and Quasi-judicial agencies.
3.
This is not a matter of right but a matter of sound discretion of the SC. The SC
may deny due course when it determines that the appeal:
1.
is without merit, or
2.
3.
4.
The appeal must be filed within 15 days from notice of judgment or order.
5.
The appeal must raise only questions of law which must be distinctly set forth
and discussed.
PART II
LAW ON PUBLIC OFFICERS
Chapter 1
Nature and Elements of a Public Office
2.
3.
4.
Public Trust
They must account to the sovereign people
2.
No vested right
It is not transmissible to the heirs upon death.
There is no absolute right to hold such position
3.
b.
BY CONSTITUTION
BY LAWS
BY AUTHORITY OF LAW
APPOINTMENT
ELECTION
BY CONTRACT
OTHER MODES AUTHORIZED BY LAW
NOTES:
1.
2.
Congress may delegate such powers to the executive branch, wherein the
president may create. abolish or merge offices in the executive branch by
issuing appropriate decree or order.
2.
INCUMBENT
This refers to persons who, by appointment or election :
1.
2.
An officer is one whose duties involve the use of discretion in the performance of
his functions
2.
3.
4.
5.
SEVILLA VS CA
1.
APPOINTMENT
Selection and appointment must be made by a person who is
vested with such authority to appoint.
2.
COMMISSION
Employment through a written contract of appointment
3.
DESIGNATION
Imposition of additional duties (ex - officio)
2.
1.
CAREER
a.
b.
c.
2.
OPEN CAREER
1.
By appointments only
2.
CLOSED CAREER
1.
2.
3.
4.
2.
CAREER OFFICERS
1.
2.
5.
6.
7.
PERMANENT LABORERS
NON-CAREER
a.
b.
2.
3.
4.
2.
3.
4.
Contractual personnel
5.
Administrative Officer
2.
CHAPTER II
APPOINTIVE OFFICERS
QUALIFICATIONS
MUST POSSESS ALL OF THE QUALIFICATIONS AND NONE OF
DISQUALIFICATIONS AS OF THE DATE OF THEIR APPOINTMENT, AS
PRESCRIBED BY LAW .
NOTES ON QUALIFICATION:
1.
2.
3.
Forfeiture also requires due process and must be made in proper action.
4.
5.
1.
2.
ELIGIBLE
Legally qualified by law to hold an office.
2.
2.
COA
1.
2.
3.
4.
The qualifications for entrance into civil service is prescribed by law and varies
depending on the assigned position
2.
CITIZENSHIP REQUIREMENT:
1.
2.
Other than those expressly prescribed by law and the Constitution, an appointive
official may be citizens only.
citizens since birth without having the need to go through any acts to perfect their
citizenship, or
2.
those born before January 17, 1973 of Filipino mothers and elected to remain a
citizen upon reaching majority.
2.
3.
born before January 23, 1973, of Filipino mothers, who elect citizenship upon
reaching majority
4.
Naturalized citizens
NOTES ON CITIZENSHIP:
1.
2.
A natural born citizen who lost his citizenship may re-acquire it subsequently by
the taking of the oath reaffirming allegiance to country.
Prior to assumption of an appointive office, the subscribed and sworn oath of
allegiance must be submitted to proper office.
APPOINTMENTS
The selection by the proper authority of a person who is to exercise the powers
and functions of a given office.
1.
2.
Even in cases where he was designated in an acting capacity, and took his oath
and his appointment was confirmed by the COA, his claim may be disputed by a
person holding a written appointment over the same position.
DESIGNATION
The assignment of a public officer to perform certain duties which are different
from those included in his office to which he was previously appointed.
1.
This connotes the imposition of additional duties upon a person who is already in
public office by virtue of a prior appointment or election.
2.
Designation is also made by virtue of a law and generally is made to fill up vacant
positions temporarily, pending resumption of office of proper officer or
assumption of new officer over the office.
4.
The designation does not confer security of tenure in the office which he
occupies in an acting capacity.
2.
a.
b.
ACTING APPOINTMENTS
1.
2.
3.
4.
OIC
1.
2.
3.
NATURE OF AN APPOINTMENT:
An appointment is an executive function.
It is a discretionary power which may be exercised by the officer provided he is
vested with such right.
The only condition to such exercise is that the appointee or person to be
appointed possesses all the qualifications required by law.
Although not deemed part of the appointment process, there are some
appointments requiring approval from other bodies:
1.
The COA may, upon review, confirm the appointment or not. However,
they are only allowed to check whether the appointee possesses the
appropriate civil service eligibility.
2.
APPOINTING AUTHORITIES:
1.
2.
3.
4.
The president
The courts
The department heads, agencies, commissions
Officers , in exercise of delegated powers to appoint
a.
b.
c.
d.
Department heads
Ambassadors, public ministers and consuls
Officers of the AFP starting with the rank of colonel or naval captain
all other officers whose appointments are vested with him under the
Constitution (COA,CSC,COMELEC and Sector Representatives)
2.
3.
4.
Officers of lower rank whose appointments are vested with the President
alone under the law.
NOTES:
1.
b.
2.
In cases where the law is silent as to the appointing officer, it is always assumed
to be the President.
3.
4.
Congress also cannot require the confirmation of COA for the last 3 groups of
appointees.
5.
COMMISSION ON APPOINTMENTS
The agency tasked to confirm the appointments made by the President.
1.
2.
3.
4.
a.
Congress in session, or
b.
c.
The COA confirms only the appointments made by President under 1st
group:
a.
b.
c.
d.
Department heads
Ambassadors, public ministers and consuls
Officers of the AFP starting with the rank of colonel or naval captain
all other officers whose appointments are vested with him under the
Constitution (COA,CSC,COMELEC and Sector Representatives)
COMPOSITION OF COA
1.
2.
2.
AD INTERIM APPOINTMENTS
1.
2.
REGULAR APPOINTMENT
1.
Congress is in session
2.
3.
AD INTERIM APPOINTMENTS
1.
2.
2.
2.
NOTES:
1.
These refers to appointments which are permanent until disapproved by the COA
2.
3.
4.
5.
6.
b.
c.
TEMPORARY DESIGNATION
1.
2.
b.
b.
there is a vacancy
3.
4.
b.
NOTES:
1.
2.
The law provides that a permanent employee who was removed due to a valid
reorganization is given preference in the appointment to a new position in the
reorganized office.
2.
b.
3.
The President may appoint positions for the members of the SC and judges for
the lower courts from within a list of at least 3 nominees as prepared and
recommended by the JBC
4.
The president cannot appoint officers and employees to positions within the
Judiciary Branch.
5.
The President may appoint the Ombudsman and his Deputies from within a list of
at least 6 nominees as prepared and recommended by the JBC.
6.
The president cannot appoint officers and employees to positions within the
Office of the Ombudsman
7.
The President is precluded from making appointments for officers and employees
within the CHR
8.
The President cannot appoint any person who lost in any election within 1 year
after the election
9.
The president cannot appoint an elective official to another position unless the
appointee vacates his elective post.
NOTES:
1.
it is allowed by law, or
b.
2.
The President, VP, Cabinet members and deputies and assistant cannot hold
any other office or employment during the duration of their tenure.
3.
Chairman
2 commissioners
TERM
7 years with no reappointment
GENERAL PURPOSE:
1.
To ensure and promote that appointments are made according to fitness and
merits
2.
COVERAGE:
1.
2.
NOTES:
1.
2.
All officers and employees in the career and no-career positions in the
government are appointive, with the exception of elective non-career officials.
3.
The appointing officer is required to submit to the CSC all appointments which
require its approval within 30 days from issuance of appointment. To do so
otherwise would render the appointment ineffective.
2.
2.
3.
2.
3.
b.
b.
b.
NOTES:
1.
2.
In cases where there are 2 or more persons vying for the same possition, and
both or all are civil service eligible, the appointing officer may consider other
conditions in the appointment (education, experience, trainings)
KINDS OF APPOINTMENT
1.
Presidential appointments
2.
3.
Non-presidential appointments
Appointments made by a duly authorised government officer in
accordance with the Civil Service Law.
NOTES:
1.
2.
3.
The appointing officer must be vested with such authority to make such
appointment at time of appointment.
2.
The appointee must possess all of the qualifications and none of the
disqualifications prescribed by law, including civil service eligibility
3.
4.
5.
NOTES:
1.
Failure to comply with any of the conditions makes the appointee a de facto
officer.
2.
The presumption is that an appointment by its terms are permanent and the
conditions have been complied with. The burden of proof rest upon the person
object to the appointment.
VACANCY
This occurs when there are no person lawfully authorised to assume and
exercise the duties of the position at present.
ATTESTATION
As a general rule, the CSC is required to approve or to attest to the fact that the
appointee is qualified for the position in which he was appointed.
This power is limited only to check and determine whether compliance with the
civil service laws have been complied with by the appointee.
WHEN APPOINTMENT TAKES EFFECT
Immediately upon the issuance by the appointing officer of a letter to such effect.
It is valid and effective until it is disapproved by the CSC.
An officer whose appointment is not approved by the CSC is deemed a de facto
officer.
LIMITS TO POWER OF CSC
1.
They are not allowed to inquire into the right of the appointing officer.
This is an issue which may be raised in a quo warranto case and may be raised
only by the Solgen or his representatives.
2.
They are not empowered to determine the kind or nature of the appointment
extended by the appointing officer.
OPPOSITION TO AN APPOINTMENT
Protest may be made to question the appointment of another person to a
particular position provided there is a cause.
GROUNDS FOR OPPOSITION:
1.
2.
3.
NOTES:
1.
FOR CAUSE
The legal reasons which the law and public policy recognizes as sufficient for the
removal of a person from a public position.
2.
2.
NOTES:
1.
2.
3.
4.
a.
b.
2.
5.
After approval, the appointee acquires a legal right over the position. He cannot
be removed except for cause and after previous notice and hearing.
6.
2.
3.
4.
COMPLETION OF APPOINTMENT
When all the requisites for the position has been met:
1.
2.
3.
NOTES:
1.
2.
Failure to take the oath of office also makes a person a de facto officer.
PERMANENT APPOINTMENT
Issued to an officer upon completion of all the conditions required for the position,
including the civil service eligibility.
Failure to fullfill the conditions makes the officer a temporary appointee.
TERM
The fixed and definite period of time where an officer may lawfully hold office.
The period is fixed by law and is permanent in nature.
When the law fixes a term for an office, he cannot be removed without cause and
without observance of due process.
KINDS OF TERM:
1.
2.
3.
TENURE
1.
2.
2.
NOTES:
Qualified for the position assumes the taking of oath and entering into the
discharge of his duties after the appointment or election.
PROMOTIONAL APPOINTMENT
1.
A move from one position to another which entails additional duties and benefits.
2.
3.
4.
REINSTATEMENT
1.
2.
3.
4.
NEPOTISM
This refers to the favoritism made in the act of appointing public officers by the
appointing officer in favor of his relatives up to the 3rd civil degree, by affinity or
consaguinity.
1.
2.
The law requires that the appointing officers issue a certificate to this effect in
their appointments.
EXCEPTION TO NEPOTISM:
1.
Confidential employees
2.
Teachers
3.
4.
5.
In cases where several appointments were made wherein one person gets
a promotion, everyone else also gets a promotion.
2.
3.
4.
DE JURE OFFICER
An officer or person having a lawful or legal right over the office
2.
DE FACTO OFFICER
An officer who has no legal right over an office
If he assumes office in good faith, he is entitled to the benefits and other
emoluments derived from the office.
TRANSFERS
This refers to movement from one position to another with the same rank and
salary, without break in the service.
QUO WARRANTO
An action to determine better rights over a position in public office
KINDS OF QUO WARRANTO
1.
2.
Grounds must be :
a.
ineligibility, or
b.
disloyalty
2.
3.
2.
3.
Must be filed within 1 year from date petitioner was ousted from office
VOID APPOINTMENTS
A void appointment :
a.
b.
2.
3.
APPOINTMENT OF A RETIREE
This rule applies compliance with the conditions in cases where appointee is:
1.
retiree, or
2.
CONDITIONS :
1.
2.
3.
DOUBLE APPOINTMENT
1.
Double appointments are not prohibited as long as positions are not incompatible
2.
The law provides that the employee next in rank shall be considered for a
promotion whenever a position in the first level becomes vacant.
This is not a mandatory requirement.
2.
3.
2.
3.
4.
GOCC
1.
2.
3.
2.
UNLAWFUL APPOINTMENTS
2.
3.
SALARY OR COMPENSATION
The basic pay a person is entitled to as compensation
PER DIEM
The daily allowance given to a person or officer who works away from the
principal office
HONORARIUM
Given as a token or appreciation for services rendered
TERMINAL LEAVE PAY
Refers to the cash value of a retiree's accumulated leave pay.
BASIC RULES ON COMPENSATION
1.
Salaries cannot be the subject of a garnishment
2.
3.