POLITICAL LAW REVIEWER

ELECTION LAWS

Election
 Embodiment of the popular will, the expression of the sovereign power of the people.
Components:
 Choice or selection of candidates to public office by popular vote
 Conduct of the polls
 Listing of votes
 Holding of Electoral campaign
 Act of casting and receiving the ballots from the voters
 Counting the ballots
 Making the election returns
 Proclaiming the winning candidates
Regular election – refers to an election participated in by those who possess the right of suffrage
and not disqualified by law and who are registered voters.
Special election – is when there is failure of election on the scheduled date of regular election in
a particular place or which is conducted to fill up certain vacancies, as provided by law.
Political Parties
Definition (Omnibus Election Code)

An organized group of persons pursuing the same ideology, political ideas or platforms of
government including its branches and divisions.

Types of Political Parties

1) Registered Parties:
1. Dominant Majority Party – usually the administration party; entitled to a copy of election return
2. Dominant Minority Party – entitled to a copy of election return
3. Majority Political Party
4. Top 3 Political Parties – entitled to appoint principal watcher and a copy of the certificate of
canvass
5. Bottom 3 political parties – entitled to appoint principal watcher
2) Non-registered parties
Criteria to Determine the Type of Political Party
1. Established Record of the said parties, showing in past elections
2. Number of Incumbent Elective Officials
3. Identifiable political organizations and strengths
4. Ability to fill a complete slate of candidates
5. Other analogous circumstances
Grounds for Challenging the Voter
1. Illegal voters ( Not Registered / Using the name of another / disqualified )
2. Based on certain illegal acts (Vote buying)
Acquisition of Juridical Personality

It is acquired upon registration with the COMELEC.

Forfeiture of Status as a Registered Political Party

The status shall be deemed forfeited if the political party, singly or in coalition with others, fails
to obtain at least 10% of the votes cast in the constituency in which it nominated and supported a
candidate/s in the election next following its registration. There shall be notice and hearing.
Candidates
Rules on Filing of Certificates of Candidacy
1. No person shall be elected into public office unless he files his certificate of candidacy within
the prescribed period
2. No person shall be eligible for more than one office. If he/she files for more than one position,
he shall not be eligible for all unless he cancels all and retains one
3. The certificate of candidacy shall be filed by the candidate personally or by his duly authorized
representative.
4. Upon filing, an individual becomes a candidate, he is already covered by rules, restrictions and
processes involving candidates.
Grounds for Disqualification
1. Election offenses under Sec 68 of the Omnibus Election Code (OEC)
2. Not possessing qualifications and possessing disqualifications under the Local Government Code

2.1 Sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one year or more of imprisonment within two years after serving sentence

2.2 Removed from office as a result of an administrative case

2.3 Convicted by final judgment for violating the oath of allegiance to the Republic

2.4 Dual citizenship ( more specifically, dual allegiance)

2.5 Fugitives from justice in criminal or non-political cases here or abroad

2.6 Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right

2.7 Insane or feeble-minded

1. Nuisance candidate
2. Violation of sec 73 of OEC with regard to certificate of candidacy
3. Violation of sec 78 which is material misrepresentation of reqts under sec. 74.
* Disqualifications (from continuing as a candidate or from holding the office if already elected):
Any candidate, who in an action or protest in which he is a party is declared by final decision of a
competent court guilty of, or is found by the Commission of having:

1. Given money or other material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions.
2. Committed acts of terrorism to enhance his candidacy
3. Spent in his election campaign an amount in excess of that allowed by the Omnibus Election
Code )
4. Solicited, received or made any contribution prohibited under this Code
5. Violated any of the following sections: Section 80, 83, 85,86,261
6. Permanent resident of or an immigrant to a foreign country shall not be qualified to run for any
elective office UNLESS he/she has waived his/her status as a permanent resident/immigrant of a
foreign country in accordance with the residence requirement provided for under election laws.
Effect of a Disqualification case (under RA 6646)
1. Any candidate who has been declared by final judgment to be disqualified shall NOT be voted
for. The votes cast in his favor shall not be counted.
2. If the candidate is not disqualified by final judgment before the election and receives the
highest number of votes in the election, the court or COMELEC will continue with the trial and
hearing of the action, inquiry or protest. Upon motion of the complainant or intervenor, the
court or COMELEC may order the suspension of the proclamation of the candidate whenever the
evidence of his guilt is strong.

Nuisance Candidates

A. The term refers to candidates who have no bona fide intention to run for the office for which
the certificate of candidacy has been filed and would thus prevent a faithful determination of the
true will of the people.

B. Power of COMELEC

1. May refuse to give due course to or cancel a certificate of candidacy of a nuisance

candidate. This can be done motu proprio or upon verified petition of an interested party.

2.There should be a showing that:

1. Certificate of candidacy has been filed to put the election process in mockery/disrepute or
2. To cause confusion among the voters by the similarity of the names of the registered candidates
3. Other circumstances which clearly demonstrate that the candidate has no bona fide intention to
run for the office…
Petition to deny due course to or to cancel a Certificate of Candidacy

A. Exclusive ground: A material representation in the certificate of candidacy is false.

B. The petition should be filed not later than 25 days from the filing of the certificate of
candidacy.

C. It should be decided not later than 15 days before the election, after due notice and hearing.

Election Campaign/Partisan Political Activity

Ø Definition

1) It refers to an act designed to promote the election or defeat of a particular candidate/s to a

public office

2) It includes:

A. Forming organizations, associations, clubs, committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any campaign for or against a candidate.

B. Holding political caucuses, conferences, meetings, rallies, parades or other similar assemblies
for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a
candidate.

C. Making speeches, announcements or commentaries or holding interviews for or against the

election of any candidate for public office.

D. Publishing or distributing campaign literature or materials designed to support or oppose the

election of any candidate.

E. Directly or indirectly soliciting votes, pledges or support for or against a candidate.

3) When the acts enumerated above are NOT considered an election campaign/partisan political
activity.

If the acts are performed for the purpose of enhancing the chances of aspirants for nomination for
candidacy to a public office by a political party, aggroupment, or coalition of parties.

RA 9006 – FAIR ELECTION ACT

Important Features:

1) Repeal of Sec. 67 of the OEC – Now, any ELECTIVE official, whether national or local, running
for any office other than the one which he is holding in a permanent capacity shall not be
considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

2) Lifting of the Political Ad Ban – Written and Printed Materials (8.5” W x 14L”)

Letters
Posters (2’ x 3’) in common-private poster areas ( not more than 10 public places per political
party or independent candidate, 12’ 16’), private places and public places

Rally streamers (3’ x 8’) NOT MORE THAN 2

Paid Advertisements at Discounted Rates

Print : 1/4th page in broadsheet and ½ page in tabloid 3x a week

Television: 120 minutes for candidate for nationally elective office and 60 for local

Radio: 180 minutes for candidate for nationally elective office and 90 for local

COMELEC free space (3 national newspaper for nationally elective officials and 1 national
newspaper for local) and airtime

(3 national television networks for nationally elective officials and 1 station for local ) : equal
allocation for all candidates for 3 calendar days

Authorized Expenses ( multiplied with the total number of registered voters )

 P 10 for president / vice president
 P 3 for other candidates for every voter currently registered in the constituency
 P 5 for independent candidates and political parties
Voters
Qualifications

 Age: 18 years old and over.

 Residence
1. He /she should have resided in the Philippines for one year and
2. Resided in the city/municipality wherein he proposes to vote for at least 6 months immediately
preceding the election.
Residence Requirement

If the transfer of residence is due to any of the following reasons, the person concerned will be
deemed NOT to have lost his original residence:

A. Transfer solely because of occupation, profession, employment in private or public service

B. Educational activities

C. Work in military or naval reservations

D. Service in the army, navy or air force, national police force

E. Confinement/detention in government institutions in accordance with law.

RA 8189 – VOTER’S REGISTRATION ACT OF 1996
Q: Can there still be general registration of voters?

A: No more, because 8189 (7) provides for such only for the May ’98 elections

Q: What kind of registration system do we have?

A: Continuing, Computerized and Permanent

Disqualifications

A. If sentenced by final judgment to suffer imprisonment for not less than 1 year and such
disability was not removed by plenary pardon or has not been granted amnesty. However, any
person disqualified to vote shall automatically reacquire the right to vote upon expiration of 5
years after service of sentence.
B. Any person who has been adjudged by final judgment by competent court or tribunal of having
committed any crime involving disloyalty to the duly constituted government such as rebellion or
any crime against national security:

1. UNLESS restored to his full civil and political rights in accordance with law.

2. However, he shall regain his right to vote automatically upon expiration of 5 years after service
of sentence.

C. Insane or incompetent persons as declared by competent authority.

Jurisdiction in Inclusion/Exclusion cases

A. The municipal and metropolitan trial courts shall have original and exclusive jurisdiction over
all matters of inclusion and exclusion of voters from the list in their respective municipalities or
cities. Petition filed at any time except 105 days before regular election or 75 days before special
election

B. Decisions may be appealed to the RTC within 5 days from receipt of notice of decision.

C. RTC will decide the appeal within 10 days. Decision is final and executory.

D. Note: Relate this to Article IX of the Constitution which provides that the COMELEC has no
jurisdiction over questions involving the right to vote.

E. Exclusion is through sworn petition and not later than 100 days before regular election; 65 days
before special election

Grounds when the List of Voters will be altered:

  Deactivation/ Reactivation
 Exclusion/ Inclusion
 Cancellation of Registration in case of Death
 New voters
 Annulment of Book of Voters
 Transfer of Residence
How is challenge to right to register effected?

Who – any voter, candidate, political party representative

How – in writing, stating grnds, under oath, proof of notice of hearing

Deactivation means removing the registration records of persons from the precinct book of voters
and place the same, properly marked and dated in indelible ink, in the inactive file after entering
the cause of deactivation.
How is reactivation of registration effected ?

Sworn application for reactivation

Affidavit

Not later than 120 days before regular election and 90 days before special election

Annulment of Book of Voters is through verified petition; notice and hearing; not prepared in
accordance with law or prepared through fraud, bribery, forgery, impersonation, intimidation,
force, any similar irregularity or which contains data that are statistically improbable

Cannot be done within 90 days before election

Postponement of Election
Causes

 Violence
 Terrorism
 Loss or destruction of election paraphernalia/records
 Force majeure
 Other analogous causes
Effect

It is impossible to hold a free, orderly and honest election in any political subdivision

COMELEC can postpone the election (when decided by a majority vote of the COMELEC sitting en
banc, RA 7166):
A. Motu proprio

B. Upon a verified petition by any interested party, after due notice and hearing

Date of new election

The date of the postponed election should be reasonably close to the date of the election not
held, suspended, or which resulted in a failure to elect. It should not be later than 30 days after
the cessation of the cause for such postponement or suspension of the election or failure to elect.

Failure of Election
Causes

 Force majeure
 Violence
 Terrorism
 Fraud
 Other analogous causes

Under RA 7166, the causes for the declaration of the failure of election may occur before or after
the casting of votes or on the day of the election.

Effects of above causes

A. Election in any polling place was not held on the date fixed;

B. Election was suspended before the hour fixed by law for the closing of the voting

C. Elections results in a failure to elect (after the voting and during the preparation
and transmission of the election returns or in the custody or canvass thereof)

AND the failure or suspension of the election would affect the result of the election
Remedy

COMELEC can call for the holding or continuation of the election not held, suspended, or which
resulted in a failure to elect. The election should be held not later than 30 days after the
cessation of the cause of the postponement or suspension of the election or failure to elect. This
is decided by the COMELEC, by a majority vote of its members, sitting en banc.

RA 7941 – Party-List System Act

 Seeks to promote proportional representation
 Any party already registered need not register anew. File manifestation not later than 90 days
before election.
Grounds for refusing or canceling registration of Party-Lists groups
 1. Religious sect or denomination, organization
2. Advocates violence
3. Foreign party or organization
4. Receives foreign support
5. Violates election law
6. Untruthful statements in its petition
7. Ceased to exist for at least one year
8. Failed to participate in the last two preceding elections or fails to obtain at least 2% of the votes
cast under the party-list system in the 2 preceding elections for the constituency in which it has
registered

Nomination of party-list reps should not include any candidate for any elective office or a person
who has lost his bid for an elective office in the immediately preceding election

Incumbent sectoral representatives in the House of Representatives who are nominated in the
party-list system shall not be considered resigned

Party List Reps constitute 20% of the total number of the members of the House of Reps including
those under the party-list

How do we determine the number of party list seats in the House of Reps?

(# of District Reps / 0.80) x 0.20 = # of party list reps

 There are presently 208 legislative districts, according to the Veterans Federation Case
 The 5 major political parties are now entitled to participate in the party list system
 Parties receiving at least 2% of the total votes cast for the party-list system shall be entitled to
one seat each
 No party shall be entitled to more than 3 seats
 Currently, there are 260 seats. So 20 % of 260 is 52 seats. But this is only a ceiling.
 A list with 5 names should be submitted to COMELEC as to who will represent the party in the
Congress. Ranking in the list submitted determines who shall represent party or organization.
Rules for Appreciation of Ballots

 Liberal Construction in favor of the validity of the ballot

 Look at the ticket slate, consider locality or literacy rate
 Rule 211 of the OEC
 Incumbency / Surname
 Cannot ascertain – STRAY VOTE
Pre-Proclamation Controversies
Definition

1. A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings

of the board of canvassers which may be raised by any candidate or by any registered political
party or coalition of political parties before the board or directly with the COMELEC.
 1. It would also refer to any matter raised under Sections 233, 234, 235, and 236 of the Omnibus
Election Code in relation to the preparation, transmission, receipt, custody, and appreciation of
the election returns. (Board of canvassers have original jurisdiction while COMELEC have
appellate jurisdiction)
1. When election returns are delayed, lost or destroyed (Sec.233)
2. Material defects in the election returns (Sec. 234)
3. When election returns appear to be tampered with or falsified. (Sec. 235)
4. Discrepancies in election returns (Sec. 236)

C. Those that can be filed with COMELEC directly are the ff:

 Issue involves the illegal composition or proceedings of the board of canvassers, as when a
majority or all of the members do not hold legal appointments or are in fact usurpers
 Issue involves the correction of manifest errors in the tabulation or tallying

of the results during the canvassing

Recount

There can be a recount under the grounds of 234-236. The returns involved will affect the results
and the integrity of the ballot box has been preserved

Issues that may be raised in a pre-proclamation controversy

1. Illegal composition or proceedings of the board of canvassers

2. The canvassed election returns are incomplete, contain material defects, appear to
be tampered with or falsified, or contain discrepancies in the same returns or in
authentic copies thereof.
3. The election returns were prepared under duress, threats, coercion, or intimidation, or they are
obviously manufactured, or not authentic.
4. When substitute or fraudulent returns in controverted polling places were canvassed, the results
of which materially affected the standing of the aggrieved candidate/s.
Procedure

A. Contested composition or proceedings of the board (under RA 7166)

It may be initiated in the board or directly with COMELEC.

B. Contested election returns (under RA 7166)

Matters relating to the preparation, transmission, receipt, custody and appreciation of the
election returns, and certificate of canvass, should be brought in the first instance before the
board of canvassers only.
Summary nature of pre-proclamation controversy

1. Pre-proclamation controversies shall be heard summarily by the COMELEC.

2. Its decision shall be executory after the lapse of 5 days from receipt by the losing party of the
decision, unless restrained by the SC.
Effect of filing petition to annul or suspend proclamation

It suspends the running of the period within which to file an election protest or quo warranto
proceedings.

When not allowed

Pre-proclamation cases on matters relating to the preparation, transmission, receipt, custody and
appreciation of the election returns or the certificates of canvass NOT allowed in elections for:
(under RA 7166)

 President
 Vice-President
 Senator
 Member of the House of Representatives
BUT: The appropriate canvassing body motu propio or upon written complaint of an interested
person can correct manifest errors in the certificate of canvass or election returns before it.
BUT: Questions affecting the composition or proceedings of the board of canvassers may be
initiated in the board or directly with COMELEC.

When pre-proclamation cases are deemed TERMINATED (RA 7166)

1. All pre-proclamation cases pending before the COMELEC shall be deemed terminated at the
beginning of the term of the office involved and the rulings of the boards of canvassers
concerned deemed affirmed.

B. This is without prejudice to the filing of a regular election protest by the aggrieved party.

C. HOWEVER: Proceedings MAY CONTINUE if:

1. The COMELEC determines that the petition is meritorious and issues an order for the proceedings
to continue or
2. The Supreme Court issues an order for the proceedings to continue in a petition for certiorari.
Election Contest
Original Jurisdiction

COMELEC has ORIGINAL jurisdiction over contests relating to the elections, returns, qualifications
of all elective:
  Regional
 Provincial
 City officials
Appellate Jurisdiction

COMELEC has APPELLATE jurisdiction over all contests involving:

A. Elective MUNICIPAL officials decided by trial courts of GENERAL jurisdiction

B. Elective BARANGAY officials decided by trial courts of LIMITED jurisdiction

Who can file a petition contesting the election

Any candidate who has duly filed a certificate of candidacy and has been voted for the same
office

Purpose of an election contest

The defeated candidate seeks to outs the proclaimed winner and claims the seat.

Final COMELEC Decisions

Provision that decisions, final orders, rulings of the Commission on election contests involving
municipal and barangay offices are final, executory and not appealable:

A. This only applies to questions of FACT. ( Flores v. COMELEC, 184 SCRA 484)

B. It does NOT preclude a special civil action of certiorari. (Galido v. COMELEC, Jan. 18,1991)

Distinctions between Pre-Proclamation Controversy and Election Contest

1) Dividing line: Proclamation of a candidate

2) Jurisdiction

A. Pre-proclamation controversy

1.The jurisdiction of COMELEC is administrative/quasi-judicial

2.It is governed by the requirements of administrative due process

B. Election contest

1.The jurisdiction of COMELEC is judicial

2.It is governed by the requirements of judicial process

3) In some cases, even if the case (involving municipal officials) began with the COMELEC
before proclamation but a proclamation is made before the controversy is resolved, it ceases to
be a pre-proclamation controversy and becomes an election contest cognizable by the RTC.

4) However, in some cases, the SC has recognized the jurisdiction of COMELEC over municipal
cases even after proclamation. Relate to the provision in RA 7166 allowing pre-proclamation
controversy proceedings to continue even after a proclamation has been made.

Election Offenses ( Selected Offenses)

Vote buying and vote-selling

A. Covered acts

1.Give, offer or promise money or anything of value

2. Making or offer to make any expenditure, directly or indirectly, or cause an expenditure to be

made to any person, association, corporation, entity or community

3.Soliciting or receiving, directly or indirectly, any expenditure or promise of any office or

employment, public or private

B. Purpose of acts

1. To induce anyone or the public in general to vote for or against any candidate or withhold his
vote in the election or

2. To vote for or against any aspirant for the nomination or choice of a candidate in a convention
or similar selection

C. Under RA 6646 (Prosecution of vote-buying/selling)

1. Presentation of a complaint supported by affidavits of complaining witnesses attesting to the

offer or promise by or the voters acceptance of money or other consideration from the relatives,
leaders or sympathizers of a candidate is sufficient basis for an investigation by the
COMELEC,directly or through its duly authorized legal officers.

2. Disputable presumption of conspiracy:

Proof that at least one voter in different precincts representing at least 20% of the total precincts
in any municipality, city or province has been offered, promised or given money, valuable
consideration or other expenditure by a candidate relatives, leaders and/or sympathizsrs for the
purpose of promoting the election of such candidate.
3. Disputable presumption of involvement

Proof affects at least 20% of the precincts of the municipality, city or province to which the public
office aspired for by the favored candidate relates. This will constitute a disputable presumption
of the involvement of such candidate and of his principal campaign managers in each of the
municipalities concerned in the conspiracy

Coercion of a subordinate

A. Who can be held liable

1. public officer

2. officer of a public/private corporation/association

3. heads/superior/administrator of any religious org.

4. employer/landowner

B. Prohibited acts
1. Coercing, intimidating or compelling or influencing, in any manner, any subordinates, members,
parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers or lease
holders to aid, campaign or vote for or against a candidate or aspirant for the nomination or
selection of candidates.
2. Dismissing or threatening to dismiss, punishing or threatening to punish by reducing salary, wage
or compensation or by demotion, transfer, suspension etc.

Appointment of new employees, creation of new position, promotion or giving salary

increases:
A. Who can be held liable: Any head/official/appointing officer of a government office, agency or
instrumentality, whether national or local, including GOCCs.
B. Prohibited acts

1.Appointing or hiring a new employee (provisional, temporary or casual)

2.Creating or filling any new position

3.Promoting/giving an increase in salary, remuneration or privilege to any government official or

employee.

C. Period when acts are prohibited

1. 45 days before a regular election

2. 30 days before a special election

D. Exceptions
1. Upon prior authority of COMELEC if it is satisfied that the position to be filled is essential to the
proper functioning of the office/agency concerned AND that the position is not filled in a
manner that may influence the election
2. In case of urgent need, a new employee may be appointed. Notice of appointment should be
given to COMELEC within 3 days from appointment.
Prohibition against release, disbursement or expenditure of public funds

A. Who can be held liable: Any public official or employee including barangay officials and those
of GOCCs/subsidiaries
B. Prohibited acts:

The release, disbursement or expenditure of public funds for any and other kinds of public
works

C. Period when acts are prohibited:

1. 45 days before a regular election

2. 30 days before a special election

D. Exception
1. maintenance of existing/completed public works project.
2. work undertaken by contract through public bidding, or by negotiated contract awarded before
the 45 day period before election
3. payment for the usual cooperation for working drawings, specfications and other procedures
preparatory to actual construction including the purchase of material and equipment and
incidental expenses for wages.
4. Emergency work necessitated by the occurrence of a public calamity but such work shall be
limited to the restoration of the damaged facility.
5. Ongoing public work projects commenced before the campaign period or similar projects under
foreign agreements.
Suspension of elective, provincial, city, municipal or barangay officer

A. General rule: public official CANNOT suspend any of the officers enumerated above during the
election period.
B. Exceptions
1. With prior approval of COMELEC
2. Suspension is for the purpose of applying the Anti-Graft and Corrupt Practices Act
In relation to registration of voters/voting
 Unjustifiable refusal to register and vote
 Voting more than once in the same election/voting when not a registered voter
 Voting in substitution for another with or without the latters’ knowledge and/or consent etc.
Other election offenses under RA 6646
1. Causing the printing of official ballots and election returns by printing establishments not on
contract with COMELEC and printing establishments which undertakes unauthorized printing
2. Tampering, increasing or decreasing the votes received by a candidate or refusing after proper
verification and hearing to credit the correct votes or deduct the tampered votes (committed by
a member of the board of election inspectors)
3. Refusing to issue the certificate of voters to the duly accredited watchers (committed by a
member of the BEI)
4. Person who violated provisions against prohibited forms of election propaganda
5. Failure to give notice of meetings to other members of the board, candidate or political party
(committed by the Chairman of the board of canvassers)
6. A person who has been declared a nuisance candidate or is otherwise disqualified who continues
to misrepresent himself as a candidate (Ex. by continuing to campaign) and any public officer or
private individual who knowingly induces or abets such misrepresentation by commission or
omission.
7. If the chairman of the BEI fails to affix his signature at the back of the official ballot, in the
presence of the voter, before delivering the ballot to the voter. (under RA 7166)
Prescription of Election Offenses

1. Election offenses shall prescribe after 5 years from the date of their commission
2. If the discovery of the offense is made in an election contest proceeding, the period of
prescription shall commence on the date on which the judgment in such proceedings becomes
final and executory
Jurisdiction of courts

1. RTC has exclusive original jurisdiction to try and decide any criminal action or proceedings for
violation of the Code.
2. MTC/MCTC have jurisdiction over offenses relating to failure to register or vote.

Source:
Election Law Reviewer and Memory Aid
Ateneo

Reviewer In Administrative Law By Atty.

Edwin Sandoval
Posted on March 22, 2012. Filed under: 2012 Bar Review Materials, Bar Review Materials, Case
Digests, Political & International Law | Tags: Administrative Law, Bar Examination, Case
Digests, Constitutional Law, Law Review, Political Law |
Describe the Administrative Code of 1987.
Held: The Code is a general law and “incorporates in a unified document the major
structural, functional and procedural principles of governance (Third Whereas Clause,
Administrative Code of 1987) and “embodies changes in administrative structures and
procedures designed to serve the people.” (Fourth Whereas Clause, Administrative Code of
1987) The Code is divided into seven (7) books. These books contain provisions on the
organization, powers and general administration of departments, bureaus and offices under
the executive branch, the organization and functions of the Constitutional Commissions and
other constitutional bodies, the rules on the national government budget, as well as
guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial
powers. The Code covers both the internal administration, i.e., internal organization,
personnel and recruitment, supervision and discipline, and the effects of the functions
performed by administrative officials on private individuals or parties outside
government. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])
What is Administrative Power?
Held: Administrative power is concerned with the work of applying policies and enforcing
orders as determined by proper governmental organs. It enables the President to fix a
uniform standard of administrative efficiency and check the official conduct of his
agents. To this end, he can issue administrative orders, rules and regulations. (Ople v.
Torres, G.R. No. 127685, July 23, 1998 [Puno])
What is an Administrative Order?
Held: An administrative order is an ordinance issued by the President which relates to
specific aspects in the administrative operation of government. It must be in harmony with
the law and should be for the sole purpose of implementing the law and carrying out the
legislative policy. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])
What is the Government of the Republic of the Philippines?
Ans.: The Government of the Republic of the Philippines refers to the corporate
governmental entity through which the functions of the government are exercised
throughout the Philippines, including, save as the contrary appears from the context, the
various arms through which political authority is made effective in the Philippines, whether
pertaining to the autonomous regions, the provincial, city, municipal or barangay
subdivisions or other forms of local government. (Sec. 2[1], Introductory Provisions,
Executive Order No. 292)
What is an Agency of the Government?
Ans.: Agency of the Government refers to any of the various units of the Government,
including a department, bureau, office, instrumentality, or government-owned or controlled
corporation, or a local government or a distinct unit therein. (Sec. 2[4], Introductory
Provisions, Executive Order No. 292)
What is a Department?
Ans.: Department refers to an executive department created by law. For purposes of Book
IV, this shall include any instrumentality, as herein defined, having or assigned the rank of a
department, regardless of its name or designation. (Sec. 2[7], Introductory Provisions,
Executive Order No. 292)
What is a Bureau?
Ans.: Bureau refers to any principal subdivision or unit of any department. For purposes of
Book IV, this shall include any principal subdivision or unit of any instrumentality given or
assigned the rank of a bureau, regardless of actual name or designation, as in the case of
department-wide regional offices. (Sec. 2[8], Introductory Provisions, Executive
Order No. 292)
What is an Office?
Ans.: Office refers, within the framework of governmental organization, to any major
functional unit of a department or bureau including regional offices. It may also refer to any
position held or occupied by individual persons, whose functions are defined by law or
regulation. (Sec. 2[9], Introductory Provisions, Executive Order No. 292)
What is a Government Instrumentality? What are included in the term
Government Instrumentality?
Ans.: A government instrumentality refers to any agency of the national government, not
integrated within the department framework, vested with special functions or jurisdiction by
law, endowed with some if not all corporate powers, administering special funds, enjoying
operational autonomy, usually through a charter. The term includes regulatory agencies,
chartered institutions and government-owned or controlled corporations. (Sec. 2[10],
Introductory Provisions, Executive Order No. 292)
What is a Regulatory Agency?
Ans.: A regulatory agency refers to any agency expressly vested with jurisdiction to
regulate, administer or adjudicate matters affecting substantial rights and interest of private
persons, the principal powers of which are exercised by a collective body, such as a
commission, board or council. (Sec. 2[11], Introductory Provisions, Executive Order
No. 292)
What is a Chartered Institution?
Ans.: A chartered institution refers to any agency organized or operating under a special
charter, and vested by law with functions relating to specific constitutional policies or
objectives. This term includes state universities and colleges and the monetary authority of
the State. (Section 2[12], Introductory Provisions, Executive Order No. 292)
What is a Government-Owned or Controlled Corporation?
Ans.: Government-owned or controlled corporation refers to any agency organized as a
stock or non-stock corporation, vested with functions relating to public needs whether
governmental or proprietary in nature, and owned by the Government directly or through its
instrumentalities either wholly, or, where applicable as in the case of stock corporations, to
the extent of at least fifty-one (51) per cent of its capital stock; x x x (Sec. 2[13],
Introductory Provisions, Executive Order No. 292)
When is a Government-Owned or Controlled Corporation deemed to be performing
proprietary function? When is it deemed to be performing governmental function?
Held: Government-owned or controlled corporations may perform governmental or
proprietary functions or both, depending on the purpose for which they have been
created. If the purpose is to obtain special corporate benefits or earn pecuniary profit, the
function is proprietary. If it is in the interest of health, safety and for the advancement of
public good and welfare, affecting the public in general, the function is
governmental. Powers classified as “proprietary” are those intended for private advantage
and benefit. (Blaquera v. Alcala, 295 SCRA 366, 425, Sept. 11, 1998, En Banc
[Purisima])
The Philippine National Red Cross (PNRC) is a government-owned and controlled
corporation with an original charter under R.A. No. 95, as amended. Its charter,
however, was amended to vest in it the authority to secure loans, be exempted
from payment of all duties, taxes, fees and other charges, etc. With the amendnt
of its charter, has it been “impliedly converted to a private corporation”?
Held: The test to determine whether a corporation is government owned or controlled, or
private in nature is simple. Is it created by its own charter for the exercise of a public
function, or by incorporation under the general corporation law? Those with special charters
are government corporations subject to its provisions, and its employees are under the
jurisdiction of the Civil Service Commission. The PNRC was not “impliedly converted to a
private corporation” simply because its charter was amended to vest in it the authority to
secure loans, be exempted from payment of all duties, taxes, fees and other charges,
etc. (Camporedondo v. NLRC, G.R. No. 129049, Aug. 6, 1999, 1st Div. [Pardo])
When may the Government not validly invoke the rule that prescription does not
run against the State? Illustrative Case.
Held: While it is true that prescription does not run against the State, the same may not be
invoked by the government in this case since it is no longer interested in the subject
matter. While Camp Wallace may have belonged to the government at the time Rafael
Galvez’s title was ordered cancelled in Land Registration Case No. N-361, the same no
longer holds true today.

Republic Act No. 7227, otherwise known as the Base Conversion and Development Act of
1992, created the Bases Conversion and Development Authority. X x x

With the transfer of Camp Wallace to the BCDA, the government no longer has a right or
interest to protect. Consequently, the Republic is not a real party in interest and it may not
institute the instant action. Nor may it raise the defense of imprescriptibility, the same
being applicable only in cases where the government is a party in interest. x x x. Being the
owner of the areas covered by Camp Wallace, it is the Bases Conversion and Development
Authority, not the Government, which stands to be benefited if the land covered by TCT No.
T-5710 issued in the name of petitioner is cancelled.

Nonetheless, it has been posited that the transfer of military reservations and their
extensions to the BCDA is basically for the purpose of accelerating the sound and balanced
conversion of these military reservations into alternative productive uses and to enhance
the benefits to be derived from such property as a measure of promoting the economic and
social development, particularly of Central Luzon and, in general, the country’s goal for
enhancement (Section 2, Republic Act No. 7227). It is contended that the transfer of these
military reservations to the Conversion Authority does not amount to an abdication on the
part of the Republic of its interests, but simply a recognition of the need to create a body
corporate which will act as its agent for the realization of its program. It is consequently
asserted that the Republic remains to be the real party in interest and the Conversion
Authority merely its agent.

We, however, must not lose sight of the fact that the BCDA is an entity invested with a
personality separate and distinct from the government. X x x

It may not be amiss to state at this point that the functions of government have been
classified into governmental or constituent and proprietary or ministrant. While public
benefit and public welfare, particularly, the promotion of the economic and social
development of Central Luzon, may be attributable to the operation of the BCDA, yet it is
certain that the functions performed by the BCDA are basically proprietary in nature. The
promotion of economic and social development of Central Luzon, in particular, and the
country’s goal for enhancement, in general, do not make the BCDA equivalent to the
Government. Other corporations have been created by government to act as its agents for
the realization of its programs, the SSS, GSIS, NAWASA and the NIA, to count a few, and
yet, the Court has ruled that these entities, although performing functions aimed at
promoting public interest and public welfare, are not government-function corporations
invested with governmental attributes. It may thus be said that the BCDA is not a mere
agency of the Government but a corporate body performing proprietary functions.

Having the capacity to sue or be sued, it should thus be the BCDA which may file an action
to cancel petitioner’s title, not the Republic, the former being the real party in interest. One
having no right or interest to protect cannot invoke the jurisdiction of the court as a party
plaintiff in an action. A suit may be dismissed if the plaintiff or the defendant is not a real
party in interest. x x x

However, E.B. Marcha Transport Co., Inc. v. IAC is cited as authority that the Republic is
the proper party to sue for the recovery of possession of property which at the time of the
installation of the suit was no longer held by the national government body but by the
Philippine Ports Authrotiy. In E.B. Marcha, the Court ruled:

It can be said that in suing for the recovery of the rentals, the Republic of the Philippines,
acted as principal of the Philippine Ports Authority, directly exercising the commission it had
earlier conferred on the latter as its agent. We may presume that, by doing so, the
Republic of the Philippines did not intend to retain the said rentals for its own use,
considering that by its voluntary act it had transferred the land in question to the Philippine
Ports Authority effective July 11, 1974. The Republic of the Philippines had simply sought to
assist, not supplant, the Philippine Ports Authority, whose title to the disputed property it
continues to recognize. We may expect the that the said rentals, once collected by the
Republic of the Philippines, shall be turned over by it to the Philippine Ports Authority
conformably to the purposes of P.D. No. 857.
E.B. Marcha is, however, not on all fours with the case at bar. In the former, the Court
considered the Republic a proper party to sue since the claims of the Republic and the
Philippine Ports Authority against the petitioner therein were the same. To dismiss the
complaint in E.B. Marcha would have brought needless delay in the settlement of the matter
since the PPA would have to refile the case on the same claim already litigated upon. Such
is not the case here since to allow the government to sue herein enables it to raise the issue
of imprescriptibility, a claim which is not available to the BCDA. The rule that prescription
does not run against the State does not apply to corporations or artificial bodies created by
the State for special purposes, it being said that when the title of the Republic has been
divested, its grantees, although artificial bodies of its own creation, are in the same
category as ordinary persons. By raising the claim of imprescriptibility, a claim which
cannot be raised by the BCDA, the Government not only assists the BCDA, as it did in E.B.
Marcha, it even supplants the latter, a course of action proscribed by said case.

Moreover, to recognize the Government as a proper party to sue in this case would set a
bad precedent as it would allow the Republic to prosecute, on behalf of government-owned
or controlled corporations, causes of action which have already prescribed, on the pretext
that the Government is the real party in interest against whom prescription does not run,
said corporations having been created merely as agents for the realization of government
programs.

It should also be noted that petitioner is unquestionably a buyer in good faith and for value,
having acquired the property in 1963, or 5 years after the issuance of the original certificate
of title, as a third transferee. If only not to do violence and to give some measure of
respect to the Torrens System, petitioner must be afforded some measure of
protection. (Shipside Incorporated v. Court of Appeals, 352 SCRA 334, Feb. 20,
2001, 3rd Div. [Melo])
Discuss the nature and functions of the National Telecommunications
Commission (NTC), and analyze its powers and authority as well as the laws, rules
and regulations that govern its existence and operations.
Held: The NTC was created pursuant to Executive Order No. 546 x x x. It assumed the
functions formerly assigned to the Board of Communications and the Communications
Control Bureau, which were both abolished under the said Executive Order. Previously, the
NTC’s function were merely those of the defunct Public Service Commission (PSC), created
under Commonwealth Act No. 146, as amended, otherwise known as the Public Service Act,
considering that the Board of Communications was the successor-in-interest of the
PSC. Under Executive Order No. 125-A, issued in April 1987, the NTC became an attached
agency of the Department of Transportation and Communications.
In the regulatory communications industry, the NTC has the sole authority to issue
Certificates of Public Convenience and Necessity (CPCN) for the installation, operation, and
maintenance of communications facilities and services, radio communications systems,
telephone and telegraph systems. Such power includes the authority to determine the
areas of operations of applicants for telecommunications services. Specifically, Section 16
of the Public Service Act authorizes the then PSC, upon notice and hearing, to issue
Certificates of Public Convenience for the operation of public services within the Philippines
“whenever the Commission finds that the operation of the public service proposed and the
authorization to do business will promote the public interests in a proper and suitable
manner.” (Commonwealth Act No. 146, Section 16[a]) The procedure governing the
issuance of such authorizations is set forth in Section 29 of the said Act x x x. (Republic v.
Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1st Div.
[Ynares-Santiago])
Is the filing of the administrative rules and regulations with the UP Law Center
the operative act that gives the rules force and effect?
Held: In granting Bayantel the provisional authority to operate a CMTS, the NTC applied
Rule 15, Section 3 of its 1978 Rules of Practice and Procedure, which provides:
Sec. 3. Provisional Relief. – Upon the filing of an application, complaint or petition or at any
stage thereafter, the Board may grant on motion of the pleader or on its own initiative, the
relief prayed for, based on the pleading, together with the affidavits and supporting
documents attached thereto, without prejudice to a final decision after completion of the
hearing which shall be called within thirty (30) days from grant of authority asked for.

Respondent Extelcom, however, contends that the NTC should have applied the Revised
Rules which were filed with the Office of the National Administrative Register on February 3,
1993. These Revised Rules deleted the phrase “on its own initiative”; accordingly, a
provisional authority may be issued only upon filing of the proper motion before the
Commission.

In answer to this argument, the NTC, through the Secretary of the Commission, issued a
certification to the effect that inasmuch as the 1993 Revised Rules have not been published
in a newspaper of general circulation, the NTC has been applying the 1978 Rules.

The absence of publication, coupled with the certification by the Commissioner of the NTC
stating that the NTC was still governed by the 1987 Rules, clearly indicate that the 1993
Revised Rules have not taken effect at the time of the grant of the provisional authority to
Bayantel. The fact that the 1993 Revised Rules were filed with the UP Law Center on
February 3, 1993 is of no moment. There is nothing in the Administrative Code of 1987
which implies that the filing of the rules with the UP Law Center is the operative act that
gives the rules force and effect. Book VII, Chapter 2, Section 3 thereof merely states:

Filing. – (1) Every agency shall file with the University of the Philippines Law Center three
(3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of
this Code which are not filed within three (3) months from the date shall not thereafter be
the basis of any sanction against any party or persons.

(2) The records officer of the agency, or his equivalent functionary, shall carry out the
requirements of this section under pain of disciplinary action.

(3) A permanent register of all rules shall be kept by the issuing agency and shall be open
to public inspection.
The National Administrative Register is merely a bulletin of codified rules and it is furnished
only to the Office of the President, Congress, all appellate courts, the National Library, other
public offices or agencies as the Congress may select, and to other persons at a price
sufficient to cover publication and mailing or distribution costs (Administrative Code of
1987, Book VII, Chapter 2, Section 7). In a similar case, we held:

This does not imply, however, that the subject Administrative Order is a valid exercise of
such quasi-legislative power. The original Administrative Order issued on August 30, 1989,
under which the respondents filed their applications for importations, was not published in
the Official Gazette or in a newspaper of general circulation. The questioned Administrative
Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code,
which reads:

“Article 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette (or in a newspaper of general circulation in the
Philippines), unless it is otherwise provided. X x x”

The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed
with, and published by the UP Law Center in the National Administrative Register, does not
cure the defect related to the effectivity of the Administrative Order.

This Court, in Tanada v. Tuvera stated, thus:

“We hold therefore that all statutes, including those of local application and private laws,
shall be published as a condition for their effectivity, which shall begin fifteen days after
publication unless a different effectivity is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative power or, at present, directly conferred by the
Constitution. Administrative Rules and Regulations must also be published if their purpose
is to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither
is publication required of the so-called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties.

We agree that the publication must be in full or it is no publication at all since its purpose is
to inform the public of the contents of the laws.”

The Administrative Order under consideration is one of those issuances which should be
published for its effectivity, since its purpose is to enforce and implement an existing law
pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133.
Thus, publication in the Official Gazette or a newspaper of general circulation is a
condition sine qua non before statutes, rules or regulations can take effect. This is explicit
from Executive Order No. 200, which repealed Article 2 of the Civil Code, and which states
that:
Laws shall take effect after fifteen days following the completion of their publication either in
the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is
otherwise provided (E.O. 200, Section 1).
The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public
Service Act, fall squarely within the scope of these laws, as explicitly mentioned in the case
of Tanada v. Tuvera.
Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and
regulations must be published if their purpose is to enforce or implement existing law
pursuant to a valid delegation. The only exception are interpretative regulations, those
merely internal in nature, or those so-called letters of instructions issued by administrative
superiors concerning the rules and guidelines to be followed by their subordinates in the
performance of their duties (PHILSA International Placement & Services Corp. v. Secretary
of Labor, G.R. No. 103144, April 4, 2001, 356 SCRA 174).
Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper
of general circulation before it can take effect. Even the 1993 Revised Rules itself mandates
that said Rules shall take effect only after their publication in a newspaper of general
circulation (Section 20 thereof). In the absence of such publication, therefore, it is the 1978
Rules that govern. (Republic v. Express Telecommunication Co., Inc., 373 SCRA 316,
Jan. 15, 2002, 1st Div. [Ynares-Santiago])
May a person be held liable for violation of an administrative regulation which
was not published?
Held: Petitioner insists, however, that it cannot be held liable for illegal exaction as POEA
Memorandum Circular No. II, Series of 1983, which enumerated the allowable fees which
may be collected from applicants, is void for lack of publication.

There is merit in the argument.

In Tanada v. Tuvera, the Court held, as follows:

“We hold therefore that all statutes, including those of local application and private laws,
shall be published as a condition for their effectivity, which shall begin fifteen days after
publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers whenever the same are validly delegated by
the legislature or, at present, directly conferred by the Constitution. Administrative rules
and regulations must also be published if their purpose is to enforce or implement existing
law pursuant to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and the public, need not be published. Neither is
publication required of the so-called letter of instructions issued by the administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties.”

Applying this doctrine, we have previously declared as having no force and effect the
following administrative issuances: a) Rules and Regulations issued by the Joint Ministry of
Health-Ministry of Labor and Employment Accreditation Committee regarding the
accreditation of hospitals, medical clinics and laboratories; b) Letter of Instruction No. 416
ordering the suspension of payments due and payable by distressed copper mining
companies to the national government; c) Memorandum Circulars issued by the POEA
regulating the recruitment of domestic helpers to Hong Kong; d) Administrative Order No.
SOCPEC 89-08-01 issued by the Philippine International Trading Corporation regulating
applications for importation from the People’s Republic of China; and e) Corporate
Compensation Circular No. 10 issued by the Department of Budget and Management
discontinuing the payment of other allowances and fringe benefits to government officials
and employees. In all these cited cases, the administrative issuances questioned therein
were uniformly struck down as they were not published or filed with the National
Administrative Register as required by the Administrative Code of 1987.

POEA Memorandum Circular No. 2, Series of 1983 must likewise be declared ineffective as
the same was never published or filed with the National Administrative Register.

POEA Memorandum Circular No. 2, Series of 1983 provides for the applicable schedule of
placement and documentation fees for private employment agencies or authority
holders. Under the said Order, the maximum amount which may be collected from
prospective Filipino overseas workers is P2,500.00. The said circular was apparently issued
in compliance with the provisions of Article 32 of the Labor Code x x x.

It is thus clear that the administrative circular under consideration is one of those issuances
which should be published for its effectivity, since its purpose is to enforce and implement
an existing law pursuant to a valid delegation. Considering that POEA Administrative
Circular No. 2, Series of 1983 has not as yet been published or filed with the National
Administrative Register, the same is ineffective and may not be enforced. (Philsa
International Placement and Services Corporation v. Secretary of Labor and
Employment, 356 SCRA 174, April 4, 2001, 3rd Div., [Gonzaga-Reyes])
Does the publication requirement apply as well to administrative regulations
addressed only to a specific group and not to the general public?
Held: The Office of the Solicitor General likewise argues that the questioned administrative
circular is not among those requiring publication contemplated by Tanada v. Tuvera as it is
addressed only to a specific group of persons and not to the general public.

Again, there is no merit in this argument.

The fact that the said circular is addressed only to a specified group, namely private
employment agencies or authority holders, does not take it away from the ambit of our
ruling in Tanada v. Tuvera. In the case of Phil. Association of Service Exporters v. Torres,
the administrative circulars questioned therein were addressed to an even smaller group,
namely Philippine and Hong Kong agencies engaged in the recruitment of workers for Hong
Kong, and still the Court ruled therein that, for lack of proper publication, the said circulars
may not be enforced or implemented.
Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and
regulations must be published if their purpose is to enforce or implement existing law
pursuant to a valid delegation. The only exceptions are interpretative regulations, those
merely internal in nature, or those so-called letters of instructions issued by administrative
superiors concerning the rules and guidelines to be followed by their subordinates in the
performance of their duties. Administrative Circular No. 2, Series of 1983 has not been
shown to fall under any of these exceptions.
In this regard, the Solicitor General’s reliance on the case of Yaokasin v. Commissioner of
Customs is misplaced. In the said case, the validity of certain Customs Memorandum
Orders were upheld despite their lack of publication as they were addressed to a particular
class of persons, the customs collectors, who were also the subordinates of the
Commissioner of the Bureau of Customs. As such, the said Memorandum Orders clearly fall
under one of the exceptions to the publication requirement, namely those dealing with
instructions from an administrative superior to a subordinate regarding the performance of
their duties, a circumstance which does not obtain in the case at bench. X x x
To summarize, petitioner should be absolved from the three (3) counts of exaction as POEA
Administrative Circular No. 2, Series of 1983 could not be the basis of administrative
sanctions against petitioner for lack of publication. (Philsa International Placement and
Services Corporation v. Secretary of Labor and Employment, 356 SCRA 174, April
4, 2001, 3rd Div., [Gonzaga-Reyes])
May a successful bidder compel a government agency to formalize a contract with
it notwithstanding that its bid exceeds the amount appropriated by Congress for
the project?
Held: Enshrined in the 1987 Philippine Constitution is the mandate that “no money shall be
paid out of the Treasury except in pursuance of an appropriation made by law.” (Sec. 29[1],
Article VI of the 1987 Constitution) Thus, in the execution of government contracts, the
precise import of this constitutional restriction is to require the various agencies to limit
their expenditures within the appropriations made by law for each fiscal year.
It is quite evident from the tenor of the language of the law that the existence of
appropriations and the availability of funds are indispensable pre-requisites to or
conditions sine qua non for the execution of government contracts. The obvious intent is to
impose such conditions as a priori requisites to the validity of the proposed contract. Using
this as our premise, we cannot accede to PHOTOKINA’s contention that there is already a
perfected contract. While we held in Metropolitan Manila Development Authority v. Jancom
Environmental Corporation that “the effect of an unqualified acceptance of the offer or
proposal of the bidder is to perfect a contract, upon notice of the award to the bidder,”
however, such statement would be inconsequential in a government where the acceptance
referred to is yet to meet certain conditions. To hold otherwise is to allow a public officer to
execute a binding contract that would obligate the government in an amount in excess of
the appropriations for the purpose for which the contract was attempted to be made. This
is a dangerous precedent.
In the case at bar, there seems to be an oversight of the legal requirements as early as the
bidding stage. The first step of a Bids and Awards Committee (BAC) is to determine
whether the bids comply with the requirements. The BAC shall rate a bid “passed” only if it
complies with all the requirements and the submitted price does not exceed the approved
budget for the contract.”(Implementing Rules and Regulations [IRR] for Executive Order No.
262, supra.)
Extant on the record is the fact that the VRIS Project was awarded to
PHOTOKINA on account of its bid in the amount of P6.588 Billion Pesos. However, under
Republic Act No. 8760 (General Appropriations Act, FY 2000, p. 1018, supra.),the only fund
appropriated for the project was P1 Billion Pesos and under the Certification of Available
Funds (CAF) only P1.2 Billion Pesos was available. Clearly, the amount appropriated is
insufficient to cover the cost of the entire VRIS Project. There is no way that the COMELEC
could enter into a contract with PHOTOKINA whose accepted bid was way beyond the
amount appropriated by law for the project. This being the case, the BAC should have
rejected the bid for being excessive or should have withdrawn the Notice of Award on the
ground that in the eyes of the law, the same is null and void.
Even the draft contract submitted by Commissioner Sadain that provides for a contract price
in the amount of P1.2 Billion Pesos is unacceptable. x x x While the contract price under the
draft contract is only P1.2 Billion and, thus, within the certified available funds, the same
covers only Phase I of the VRIS Project, i.e., the issuance of identification cards for only
1,000,000 voters in specified areas. In effect, the implementation of the VRIS Project will
be “segmented” or “chopped” into several phases. Not only is such arrangement disallowed
by our budgetary laws and practices, it is also disadvantageous to the COMELEC because of
the uncertainty that will loom over its modernization project for an indefinite period of
time. Should Congress fail to appropriate the amount necessary for the completion of the
entire project, what good will the accomplished Phase I serve? As expected, the project
failed “to sell” with the Department of Budget and Management. Thus, Secretary Benjamin
Diokno, per his letter of December 1, 2000, declined the COMELEC’s request for the
issuance of the Notice of Cash Availability (NCA) and a multi-year obligatory authority to
assume payment of the total VRIS Project for lack of legal basis. Corollarily, under Section
33 of R.A. No. 8760, no agency shall enter into a multi-year contract without a multi-year
obligational authority, thus:
“SECTION 33. Contracting Multi-Year Projects. – In the implementation of multi-year
projects, no agency shall enter into a multi-year contract without a multi-year Obligational
Authority issued by the Department of Budget and Management for the
purpose. Notwithstanding the issuance of the multi-year Obligational Authority, the
obligation to be incurred in any given calendar year, shall in no case exceed the amount
programmed for implementation during said calendar year.”
Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence
dictated them not to enter into a contract not backed up by sufficient appropriation and
available funds. Definitely, to act otherwise would be a futile exercise for the contract
would inevitably suffer the vice of nullity. x x x

Verily, the contract, as expressly declared by law, is inexistent and void ab initio (Article
1409 of the Civil Code of the Philippines). This is to say that the proposed contract is
without force and effect from the very beginning or from its incipiency, as if it had never
been entered into, and hence, cannot be validated either by lapse of time or ratification.
In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC
to formalize the contract. Since PHOTOKINA’s bid is beyond the amount appropriated by
Congress for the VRIS Project, the proposed contract is not binding upon the COMELEC and
is considered void x x x. (Commission on Elections v. Judge Ma. Luisa Quijano-
Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez])
What is the remedy available to a party who contracts with the government
contrary to the requirements of the law and, therefore, void ab initio?
Held: Of course, we are not saying that the party who contracts with the government has
no other recourse in law. The law itself affords him the remedy. Section 48 of E.O. No. 292
explicitly provides that any contract entered into contrary to the above-mentioned
requirements shall be void, and “the officers entering into the contract shall be liable to the
Government or other contracting party for any consequent damage to the same as if the
transaction had been wholly between private parties.” So when the contracting officer
transcends his lawful and legitimate powers by acting in excess of or beyond the limits of
his contracting authority, the Government is not bound under the contract. It would be as if
the contract in such case were a private one, whereupon, he binds himself, and thus,
assumes personal liability thereunder. Otherwise stated, the proposed contract is
unenforceable as to the Government.
While this is not the proceeding to determine where the culpability lies, however, the
constitutional mandate cited above constrains us to remind all public officers that public
office is a public trust and all public officers must at all times be accountable to the
people. The authority of public officers to enter into government contracts is circumscribed
with a heavy burden of responsibility. In the exercise of their contracting prerogative, they
should be the first judges of the legality, propriety and wisdom of the contract they entered
into. They must exercise a high degree of caution so that the Government may not be the
victim of ill-advised or improvident action. (Commission on Elections v. Judge Ma.
Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-
Gutierrez])
Does the Commission on Human Rights have the power to adjudicate?
Held: In its Order x x x denying petitioners’ motion to dismiss, the CHR theorizes that the
intention of the members of the Constitutional Commission is to make CHR a quasi-judicial
body. This view, however, has not heretofore been shared by this Court. In Carino v.
Commission on Human Rights, the Court x x x has observed that it is “only the first of the
enumerated powers and functions that bears any resemblance to adjudication of
adjudgment,” but that resemblance can in no way be synonymous to the adjudicatory
power itself. The Court explained:

“x x x [T]he Commission on Human Rights x x x was not meant by the fundamental law to
be another court or quasi-judicial agency in this country, or duplicate much less take over
the functions of the latter.

“The most that may be conceded to the Commission in the way of adjudicative power is that
it may investigate, i.e., receive evidence and make findings of fact as regards claimed
human rights violations involving civil and political rights. But fact finding is not
adjudication, and cannot be likened to the judicial function of a court of justice, or even a
quasi-judicial agency or official. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making factual conclusions in a
controversy must be accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or determined authoritatively,
finally and definitively, subject to such appeals or modes of review as may be provided by
law. This function, to repeat, the Commission does not have. (Simon, Jr. v. Commission on
Human Rights, 229 SCRA 117, 125, Jan. 5, 1994, En Banc [Vitug, J.])
Does the Commission on Human Rights have jurisdiction to issue TRO or writ of
preliminary injunction?
Held: In Export Processing Zone Authority v. Commission on Human Rights, the Court x x
x explained:

“The constitutional provision directing the CHR to ‘provide for preventive measures and legal
aid services to the underprivileged whose human rights have been violated or need
protection’ may not be construed to confer jurisdiction on the Commission to issue a
restraining order or writ of injunction for, if that were the intention, the Constitution would
have expressly said so. ‘Jurisdiction is conferred only by the Constitution or by law.’ It is
never derived by implication.”

“Evidently, the ‘preventive measures and legal aid services’ mentioned in the Constitution
refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which
the CHR may seek from the proper courts on behalf of the victims of human rights
violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the writ,
for a writ of preliminary injunction may only be issued ‘by the judge of any court in which
the action is pending [within his district], or by a Justice of the Court of Appeals, or of the
Supreme Court. x x x. A writ of preliminary injunction is an ancillary remedy. It is available
only in a pending principal action, for the preservation or protection of the rights and
interest of a party thereto, and for no other purpose.”

The Commission does have legal standing to indorse, for appropriate action, its findings and
recommendations to any appropriate agency of government. (Simon, Jr. v. Commission
on Human Rights, 229 SCRA 117, 134-135, Jan. 5, 1994, En Banc [Vitug, J.])
Does the petition for annulment of proclamation of a candidate merely involve the
exercise by the COMELEC of its administrative power to review, revise and reverse
the actions of the board of canvassers and, therefore, justifies non-observance of
procedural due process, or does it involve the exercise of the COMELEC’s quasi-
judicial function?
Held: Taking cognizance of private respondent’s petitions for annulment of petitioner’s
proclamation, COMELEC was not merely performing an administrative function. The
administrative powers of the COMELEC include the power to determine the number and
location of polling places, appoint election officials and inspectors, conduct registration of
voters, deputize law enforcement agencies and governmental instrumentalities to ensure
free, orderly, honest, peaceful and credible elections, register political parties, organizations
or coalition, accredit citizen’s arms of the Commission, prosecute election offenses, and
recommend to the President the removal of or imposition of any other disciplinary action
upon any officer or employee it has deputized for violation or disregard of its directive, order
or decision. In addition, the Commission also has direct control and supervision over all
personnel involved in the conduct of election. However, the resolution of the adverse claims
of private respondent and petitioner as regards the existence of a manifest error in the
questioned certificate of canvass requires the COMELEC to act as an arbiter. It behooves
the Commission to hear both parties to determine the veracity of their allegations and to
decide whether the alleged error is a manifest error. Hence, the resolution of this issue calls
for the exercise by the COMELEC of its quasi-judicial power. It has been said that where a
power rests in judgment or discretion, so that it is of judicial nature or character, but does
not involve the exercise of functions of a judge, or is conferred upon an officer other than a
judicial officer, it is deemed quasi-judicial. The COMELEC therefore, acting as quasi-judicial
tribunal, cannot ignore the requirements of procedural due process in resolving the petitions
filed by private respondent. (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan.
26, 2000 [Puno])
Discuss the contempt power of the Commission on Human Rights (CHR). When
may it be validly exercised.
Held: On its contempt powers, the CHR is constitutionally authorized to “adopt its
operational guidelines and rules of procedure, and cite for contempt for violations thereof in
accordance with the Rules of Court.” Accordingly, the CHR acted within its authority in
providing in its revised rules, its power “to cite or hold any person in direct or indirect
contempt, and to impose the appropriate penalties in accordance with the procedure and
sanctions provided for in the Rules of Court.” That power to cite for contempt, however,
should be understood to apply only to violations of its adopted operational guidelines and
rules of procedure essential to carry out its investigatorial powers. To exemplify, the power
to cite for contempt could be exercised against persons who refuse to cooperate with the
said body, or who unduly withhold relevant information, or who decline to honor summons,
and the like, in pursuing its investigative work. The “order to desist” (a semantic interplay
for a restraining order) in the instance before us, however, is not investigatorial in character
but prescinds from an adjudicative power that it does not possess. x x x (Simon, Jr. v.
Commission on Human Rights, 229 SCRA 117, 134, Jan. 5, 1994, En Banc [Vitug,
J.])
Discuss the Doctrine of Primary Jurisdiction (or Prior Resort).
Held: Courts cannot and will not resolve a controversy involving a question which is within
the jurisdiction of an administrative tribunal, especially where the question demands the
exercise of sound administrative discretion requiring the special knowledge, experience and
services of the administrative tribunal to determine technical and intricate matters of fact.

In recent years, it has been the jurisprudential trend to apply this doctrine to cases
involving matters that demand the special competence of administrative agencies even if
the question involved is also judicial in character. It applies “where a claim is originally
cognizable in the courts, and comes into play whenever enforcement of the claim requires
the resolution of issues which, under a regulatory scheme, have been placed within the
special competence of an administrative body; in such case, the judicial process is
suspended pending referral of such issues to the administrative body for its view.”

In cases where the doctrine of primary jurisdiction is clearly applicable, the court cannot
arrogate unto itself the authority to resolve a controversy, the jurisdiction over which is
lodged with an administrative body of special competence. (Villaflor v. CA, 280 SCRA
297, Oct. 9, 1992, 3rd Div. [Panganiban])
Discuss the Doctrine of Exhaustion of Administrative Remedies. What are the
exceptions thereto?
Held: 1. Before a party is allowed to seek the intervention of the court, it is a pre-condition
that he should have availed of all the means of administrative processes afforded
him. Hence, if a remedy within the administrative machinery can still be resorted to by
giving the administrative officer concerned every opportunity to decide on a matter that
comes within his jurisdiction then such remedy should be exhausted first before the court’s
judicial power can be sought. The premature invocation of court’s jurisdiction is fatal to
one’s cause of action. Accordingly, absent any finding of waiver or estoppel the case is
susceptible of dismissal for lack of cause of action. This doctrine of exhaustion of
administrative remedies was not without its practical and legal reasons, for one thing,
availment of administrative remedy entails lesser expenses and provides for a speedier
disposition of controversies. It is no less true to state that the courts of justice for reasons
of comity and convenience will shy away from a dispute until the system of administrative
redress has been completed and complied with so as to give the administrative agency
concerned every opportunity to correct its error and to dispose of the case.

This doctrine is disregarded:

when there is a violation of due process;

when the issue involved is purely a legal question;

when the administrative action is patently illegal amounting to lack or excess of jurisdiction;
when there is estoppel on the part of the administrative agency concerned;

when there is irreparable injury;

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;

when to require exhaustion of administrative remedies would be unreasonable;

when it would amount to a nullification of a claim;

when the subject matter is a private land in land case proceeding;

when the rule does not provide a plain, speedy and adequate remedy, and

when there are circumstances indicating the urgency of judicial intervention.

(Paat v. CA, 266 SCRA 167 [1997])

2. Non-exhaustion of administrative remedies is not jurisdictional. It only renders the
action premature, i.e., claimed cause of action is not ripe for judicial determination and for
that reason a party has no cause of action to ventilate in court. (Carale v. Abarintos, 269
SCRA 132, March 3, 1997, 3rd Div. [Davide]