ARELLANO LAW SCHOOLFINAL EXAMINATION IN ADMINISTRATIVE LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW

1st SEMESTER SY 2008-2009

Read carefully each question before answering. Explain your answers fully and support them with the applicable provisions of the constitution, law and jurisprudence. 5 pts. each.

1. Distinguish term from tenure. The term of office is the time during which the officer may claim to hold the office as of right and fixes the interval after which the several incumbents shall succeed one another. It is the actual period of incumbency of the public officer. Tenure represents the portion of the term during which the incumbent actually holds the office.

2. When is there an effective resignation from public office? There is an effective resignation from public office when i) there is a formal renunciation of the remainder of the term; ii) there is physical relinquishment of the office; and iii) there is acceptance of the resignation by the appointing authority.

3. a) When may a public officer validly continue to hold his office despite the expiration of his term? b) Can a Provincial Governor hold over if there is no one elected to succeed him? a) A public officer may validly continue to hold public office despite the expiration of his term when he does so in a hold-over capacity. A public officer can continue to hold office in a hold-over capacity only if there is no express or implied prohibition against such hold-over. b) No, a provincial governor cannot hold over even if there is no one elected to succeed him because the fixing by law of the term of a provincial governor to three (3) years, with the beginning and the end of the term, is an implied prohibition against holding over.

4. When is there appointment through certification? An appointment through certification to a position in the civil service occurs when it is issued to a person who has been selected from a list of qualified persons certified by the Civil Service Commission from an appropriate register of eligibles and who meets all the other requirements of the position.

5. Can an appointment be validly issued for a position which will become vacant only at a future date? Yes. An appointment can be validly issued for a position that will become vacant at a future date for as long as it becomes effective only upon the

vacancy of the office to which the appointment is made. There can be no valid appointment to a public office which is not vacant.

6. When does abolition of public office violate the constitutional guarantee of security of tenure? The abolition of a public office violates the constitutional guarantee of security of security tenure when such abolition is attended with bad faith. When the abolition of the public office is attended with bad faith, its only obvious purpose is the separation of the incumbent from his office without just cause.

7. Who may exercise the right of suffrage? Art. V of the Constitution states that suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least 18 years of age, and who shall have resided in the Philippines at yeast 1 year, and in the place wherein they propose to vote, for at least 6 months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.

8. When is an appointment temporary and when is it provisional? A temporary appointment is issued to a person, who may or may not have the appropriate civil service eligibity, to fill up a position needed only for a limited period not exceeding six months. It is without a definite tenure and is dependent upon the pleasure of the appointing authority. A provisional appointment is issued to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment.

9. Distinguish the effect of the re-election of a public official on pending administrative and criminal charges against him. The re-election of a public official will have the effect of automatically dismissing the administrative charges against him for offenses allegedly committed during his previous term. His re-election operates as a condonation by the people of whatever faults or misconduct he may have previously committed because it is presumed that when the people re-elected him, they did so with full knowledge of his life and character and that they disregarded or forgave his faults or misconduct. His re-election will not, however, extinguish his criminal liability because a crime is an offense against the state which is not

subject to compromise. Otherwise, his re-election will constitute a pardon, which can only be extended by the President.

10. When is there abandonment of public office? There is abandonment of public office when there is a voluntary and total surrender and relinquishment of an office by the holder thereof under such circumstances as clearly to indicate an intention of absolute relinquishment, coupled with an overt or external act by which the intention is carried out. It connotes the giving up of the office but is not attended with the formalities observed in resignation. The two offices cannot be held simultaneously by the same person because public policy requires that they be vested in different individuals lest a hostility or conspiracy of powers in the two offices will result in irreparable detriment to the people.

11. What is an incompatible public office? An incompatible office is that which whose character or nature of office or relation to another office is such that one person should not hold both because of the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other.

12. Distinguish discretionary duty from ministerial duty. The duty is discretionary if the officer is allowed to determine how and when it is to be performed and to decide this matter in one wayor the other and be right either way. The officer is allowed much leeway in arriving at a decision as the duty is conferred on him in recognition of his good sense or judgment. The duty is ministerial when the law exacting its discharge prescribes and defines the time, mode and occasion of its performance with such certainty that nothing is left for judgment or discretion.

13. Define: a) non-feasance, b) misfeasance, and c) malfeasance? a) Nonfeasance is the neglect or refusal, without sufficient excuse, to perform an act which it was the officer’s legal duty to the individual to perform. b) Misfeasance is the failure to use, in the performance of a duty owing to the individual, that degree of care, skill and diligence which the circumstances of the case reasonably demand. c) Malfeasance is the doing, either through ignorance, inattention or malice, of that which the officer had no legal right to do at all, as where he acts without any authority whatever, or exceeds, ignores or abuses his powers.

14. Can the exercise of discretionary duty be delegated? Can its exercise be compelled? No, the exercise of a discretionary duty

cannot be delegated to another because it is presumed that the officer to whom discretionary duty has been conferred was chosen because he was deemed fit and competent to exercise that judgment and discretion, and unless the power to substitute another in his place has been given to him. Yes, the exercise of discretionary duty can be compelled but the officer upon whom such duty has been conferred can only be required to act in a general manner, i.e. not in any specific manner.

15. D is a bona fide member of the Philippine Bar. In 2007, he was elected a member of the Provincial Board of Rizal Province. a) Can D appear as counsel for E who is accused of the offense of bigamy? D was later elected Congressman in a special election held in October 2008. b) Can D continue to appear as counsel for E? a) Yes, D can appear as counsel for an accused in a criminal case for as long as the accused is not an officer or employee of the national or local government who is accused of an offense committed in relation to his office. It does not appear that E is an employee of the national or local government; but even if he is, the offense of bigamy is one the commission of which is not in relation to public office. b) No, he can no longer continue to appear as counsel for E. Article VI, Sec. 14 of the Constitution prohibits members of Congress from personally appearing as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies.

16. G is a public school teacher whose husband ran for municipal mayor during the national elections in May 2007. In one of the faculty meetings, G called the attention of her fellow teachers to the deteriorating state of their school building and why she thinks that once elected mayor, her husband could help in its renovation and improvement. Did G violate any official inhibition? Yes, G being a member of the Civil Service, she is prohibited by Art. IX-B, Sec. 2(4) of the Constitution from engaging in electioneering or partisan political campaign. By stating during the faculty meeting that once her husband is elected mayor he would be able to help in the renovation and improvement of the school building, she was practically promoting his candidacy and indirectly urging her fellow teachers to vote for him. Asking others to vote for a particular candidate is a form of partisan political campaign.

Alternative answer: The Civil Service law does not prohibit, and in fact allows, any civil service official or employee to express his views on current problems or issues, or to mention the names of candidates for public office whom he supports. The

mere act of G of expressing her view of how her husband could help in the renovation and improvement of the school building once he is elected mayor is a form of expression of why she supports her husband’s candidacy.

17. The daughter of the President passed the rigorous written and oral examinations for Foreign Service officers. She possesses all the qualifications and the eligibility required for appointment as Consul of Republic of Philippines. a) Explain why the President’s daughter cannot be appointed a member of the Foreign Service. b) Will your answer be the same if she was instead appointed Secretary of the Department of Foreign Affairs? a) The President’s daughter cannot be appointed a Consul of the Republic of the Philippines because that will constitute nepotism. The power to appoint members of the Foreign Service is vested on the President. There is nepotism when the appointment is made in favor of a relative within the third degree of consanguinity or affinity of the appointing power or recommending authority or the chief of the bureau of office or of the offices exercising immediate supervision over the appointee. b) Yes, because her appointment as Secretary of the Department of Foreign Affairs will not only constitute nepotism but the Constitution expressly prohibits the appointment of the spouse and relatives by consanguinity or affinity within the fourth civil degree of the President as department Secretaries.

18. K and L are both employees of the Bureau of Customs. K obtained a loan from L. To ensure payment of the loan, K executed a promissory note where she also expressly assigned her salary for two (2) months to L. On payroll day, L went to the disbursing officer of the Bureau of Customs, presented the promissory note and deed of assignment executed by K, and claimed the salary of K. Can L compel the payroll officer of the Bureau of Customs to deliver to her the salary of K? Explain. No. Public policy prohibits the assignment of the salary of a public officer not only because such salary still belongs to the state as long as it has not yet been actually collected by the public officer. Before the salary of a public officer is actually delivered to him, the same still forms part of the public funds which cannot be the subject of a private contract or agreement. The public officer to whom the salary is due has no power over it prior to its delivery to him. He cannot assign it without the consent of the government.

19. Explain why a temporary appointment or designation in an acting capacity cannot be made in favor of a member of the Commission on Elections. Art. IX-A, Sec. 1 of the Constitution

expressly describes the Constitutional Commissions as “independent”. Although essentially executive in nature, they are not under the control of the President in the discharge of their respective functions. A temporary appointment and a designation in an acting capacity are by their very terms temporary and revocable at will by the appointing authority who, in this case, is the President. They can be withdrawn anytime by the President at any time and for whatever reason that the President may deem fit. No cause need be established to justify the revocation or withdrawal of the appointment or designation. The members of the Comelec will, thus, lose their security of tenure, which is one of the safeguards to their independence.

20. Teehankee was convicted of murder for the shooting of Maureen Hultmann on the eve of election day and for violation of the election laws because he did not have any certificate of exemption from the gun ban issued by the Comelec. Seventeen years into the service of his sentence, the President granted absolute pardon to Teehankee and he was released from prison. Rule on the validity of the pardon of Teehankee. Teehankee committed two (2) separate crimes of murder and violation of the election law. The pardon is valid insofar as the commission of the crime of murder is concerned. Since it does not appear that the President sought the favorable recommendation of the Comelec, the pardon is not valid with respect to the violation of the election law is concerned. Art. IX-C, Sec. 5 of the Constitution states that “No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission.”

21. At the forefront of the US$700 Billion financial bailout program of the US Federal Government for ailing US banks and quasi-banking institutions is the US Federal Reserve which is the central banking system of the United States. Its current chairman is Ben Shalom Bernanke. Whom did he succeed? Alan Greenspan

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