Administrative-law-agpalo-2005-ch-1-3.pdf

PART I ADMINISTRATIVE LAW CHAPTER I INTRODUCTORY §1.01. Scope. Some law schools combine administrative law, the law on public officers, and election law as one subject equivalent tG three (3) units. To accommodate law students taking up the three-unit subject, instead of buying three separate books on administrative law, law on public officers, and election Jaw, these laws have been combined in one book, consisting of three parts: Part I: Administrative Law; Part II: Law on Public Officers;" and Pait Ill: .Election Law. § 1.02. Generally. In a general sense, "administrative law" embraces all the law that controls, or is intended to control, the administrative operations ofgovernment.' This broad meaning of administrative law is reflected in the i987 Administrative Code of the Philippines,2 for the Code prescribes the administrative operations of the Philippine Govern­ ment in a very broad· manner, containing as it does provisions on Sovereignty and Governmental Administration (Book I); Distribution of Powers of Government, namely: the Executive, Legislative and Judiciary (Book II); Office of the President (Book III); The Executive Branch, consisting of all the departments, bureaus, offices, and

'l Am. Jur. 2d 806. Executive Order No. 292 issued on July 25, 1987.

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agencies attached thereto (Book IV); Constitutional Commissions, namely: the Commission on Elections, the Civil Service Commission and the Commission on Audit, and other constitutiqnal bodies (Book V); National Government Budgeting (Book V1); and Administrative Procedure (Book V1I). The broad scope of administrative law as enshrined in the 1987 Administrative Code covers those of internal as well as those of external administration. The former considers the legal aspects of public administration as a going concern. The latter refers to the legal relations between administrative authorities and private inter­ ests. This is the chief concern of administrative law, which is the protection of private rights, the subject of which is the nature and the mode of exercise of administrative power and the system of re­ liefs against administrative action. 3

§1.03. Kinds of administrative law. Administrative law is of four kinds: (a) statutes setting up administrative authorities; (b) the body of doctrines and decisions dealing with the creation, operation, and effect of determinations and regulations of such administrative authorities; (c) rules, regula­ tions, or orders of such administrative authorities in pursuance of the purposes for which administrative authorities were created or endowed; and (d) determinations, decisions, and orders of such ad­ ministrative authorities in the settlement of controversies arising in their particular fields.4 Administrative law consists of pertinent provisions of the Con­ stitution, special legislations creating specialized agencies, the 1987 Administrative Code and provisions of the Revised Administrative Code which are not inconsistent with those of the 1987 Code. '!'he 1987 Administrative Code did not entirely repeal or. modify the Re­ vised Administrative Code and special legislations because what the 1987 Code repeale� or modified are only those "laws, decrees, orders, rules and regulations, or portions thereof (which are) inconsistent with this Code."6 The two administrative codes are general laws, and as between the codes and special legislations on specific subject matters, the latter prevail as an exception to the former. It is basic 1 Am. Jur. 2d 807-809. •1 Am. Jur. 2d 808. 6 Sec. 27, Book VII, 1987 Administrative Code; Mecano v. COA, 216 SCRA 500 3

[1992).

ADMINISTRATIVE LAW Introductory

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statutory principle that general legislation must give way to spechl legislation on the same subject, and generally so interpreted a$ ·::o embrace only cases in which the special provisions are not app'.i­ cable.6 Administrative functions are those which involve the �egu l 't­ tion and control over the conduct and affair of individuals for their own weltare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the administrativ� agency by the organic law of its existence. 7 §1.04. Administrative framework. At the apex of the administrative framework of the Republic of the Philippines, as provided in the 1987 Administrative Code, is the Government of the Republic. The Government of the Republic of the Philippines refers to the corporate governmental entity through which the functions of government are exercised throughout the Philip­ pines, including, save as the contrary appears from the context, th,e various arms through which political authority is made ·eflective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government. Included in the Government are agencies and instrumentalities thereof. An agency of the Government refers to any of the various units of Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein. Instru­ mentality refers to any agency of the National Government, not in­ tegrated within the department framework, vested with special func­ tions or jurisdiction by ll;l.w, endowed with some if not all corporate powers, administering special funds, and enjoying operational au­ tonomy, usually through a charter. This term includes regulatory agencies, institutes and govern ment-owned or controlled corporations.8 An instrumentality is anything used as a means or agency. The terms governmental-"agency" are "instrumentality" are synonymous in the sense that either of them is a means by which the government 6Leveriza v. IAC, 157 SCRA 282 [1988); see also Ruben �- Agpalo, Statutory

Construction, 6th 1997-ed,

11n Re: Rodolfo U. Manzano, 166 SCRA 246 U988J. 8 Sec. 2, Administrative Code of 1987; Iron and Steel Authority v. Court of Ap­ peals, 65 SCAD 261, 249 SCRA 538 {1995).

ADMINISTRATIVE LAW, U.W ON PUBLIC OFFICERS AND ELECTIO� LAW

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acts, or by which a certain governmental act or function is performed. The word "instrumentality," with respect to a state, contemplates an authority to which the state delegates governmental power for the performance of a state function.� Agencies or instrumentalities of the Government are either incorporated or non-incorporated. Incorporated agencies or instrumentalities, sometime with and at other times without capital stock, are vested by law with a juridical personality distinct from the personality of the Republic. Examples of these incorporated agencies or instrumentalities are the National Power Corporation, Philippine Ports Authority, National Housing Authority, Philippine National Oil Company, etc. Non-incorporated agencies or instrumentalities are those not vested with a juridical personality distinct from the Republic, endowed by law with some if not all corporate powers. 10 The Sugar Regulatory Administration is an .example of a non­ incorporated agency, as it is neither a government-owned or controlled corporation, but is an agency under the Office of the President. 1 1 Incorporated and non-incorporated agencies or instrumentalities are all agents or delegates of the Republic of the Philippines which is, by itself, a body corporate and juridical person vested with the full panoply ofpowers and attributes which are compendiously described as "legal personality." The expiration of the term of an incorporated· agency or instrumentality has consequences which must be looked for in the charter of the agency and, as supplement, in the provisions of the Corporation Code. When the statutory term of a non­ incorporated agency expires, the powers, duties and functions as well as assets and liabilities of that agency revert back to, and are re­ assumed by, the Republic of the Philippines, in the absence of special provisions of law specifying some other disposition thereof. 12. Chartered institution refers to any agency organized or operat­ ing under a specific charter, and vested by law with functions relat­ ing to specific constitutional policies or objectives: This term includes the state universities and colleges, and the monetary authority of the · · state. 13 9Luzon Dev. Bank v. Association of Luzon Dev. Bank Employees, 64 SCAD 918, 249 SCRA 162 (1995). 10

[1995). [1995].

Iron and Steel Authority v. Court of Appeals, 65 SCAD 261, 249 SCRA 538

v. Court of Appeals, 65 SCAD 261, 200 SCRA 226 [1991]. 12Iron and Steel Authority v. Court of Appeals, 65 SCAD 261, 249 SCRA 538

11 Republic

13 Malaga

v. Pa nachos, Jr., 213 SCRA 516 (1992].

ADMINISTRATIVE LAW Introductory

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The public officers and employees who perform the duties P •1d exercise the powers in the administrative set-up of the governm· nt are compendiously called "administration." The term ''administration" refers to the aggregate of those persons in whose hand the reins of government are for the time being. 14 § 1.05. Creation and abolition of agencies. Administrative agencies, boards and commissions are public offices. The term "public office" refers to the right: authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign . functions of government, to be exercised by that individual for the benefit of the public_ ts A public office refers to either of two concepts, as a functional unit-of government, such as department or bureau, or as a position held or occupied by individual persons, whose functions are defined by law or regulation. 16 A public office is a public trust or responsibility, and embraces the idea of term, duration, emoluments, powers and duties. All of them taken together constitute a public office. 17 .A public office is created by the Constitution or by law or by an officer or tribunal to which the power to create the office has been delegated by the legislature. The Constitution established offices which perform administrative functions. These are the President, he being the chief administrative officer; the Constitutional Commis­ sions, namely: the Commission on Elections, the Civil Service Com­ missions and the Commission on Audit; the Office of the Ombuds­ man; the National Economic and Development Authority, the Com­ mission on Human Rights; and the National Police Commission. All administrative agencies or bodies other than those estab­ lished by the Con_stitution are created by statutes or by officers or tribunals authorized by Congress to do so expressly or impliedly. Except such offices as are created by the Constitution, the creation ofp)lhlkoffices is primarily a legislative function. In so far as the legislative power in this respect is not restricted by the "U.S. v. Dorr, 2 Phil. 332 [1903]. 15Fernandez v. Sto. 1bmas, 59 SCAD 488, 248 SCRA 194 (1995]. 16Sec. 2(9), 1987 Administrative Code. 17 63 Am. Jur. 2d 667.

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constitutional provision, it is supreme, and the legislature may de­ cide for itself what offices are suitable, necessary, or convenient. When in the exigencies of government it is necessary to create and define duties, the legislative department has the discretion to deter­ mine whether additional offices shall be created, or whethe·r these duties shall be attached to and become ex-officio duties of existing offices. All offices created by the legislature are wholly within the power of that body, and it may prescribe the mode of filling the office and the powers and duties of the office holders, and, if it sees fit, abolish the office. 18 §1.06. Power to reorganize includes power to create or

abolish offices.

The legislature usually exercises the power to. create or abolish by delegating it to the President or to another executive officer or body. The means by which the legislature makes the delegation is by authorizing reorganization. Reorg�I!���t�Qll!� �h� p�o�es§ of r.�structu��11g_!he bureaucracy'1,3 ga Qf n.,i��ti9n�\ !;!n!'.!.fl:-m�tjOJ:l�\ ��t,.J!P,, tQ make n ffi!),!:� :Yi�!>!�j!! �rm� qf the economy, efficiency, effectiveness and make it more re�P.O��jye to the n�ed§ of it$ p-µl:>li� ..�l!�I!t�l� !3§ �-µtll.Orized !>Y .1!!.W., 19 Reorganization is the means used by the legislature to reorganize.or abolish offices, which it may do so by law directly or indirectly by authorizing an executive department or agency to reorganize its office.20 The legislative power to reorganize - and therefore to abolish offices - applies to all offices, including lower courts, except only those created by the Constitution itself.21 §1.07. Reasons for creation of administrative agencies. There are no less than fifty (50) administrative agencies performing administrative, executive, investigative, rule-making or quasi-judicial powers, or a combination of these powers. And they keep multiplying as problems of modern society keep growing. Adniinistrative agencies are government bodies charged with 18Eugenio v. CSC, 60 SCAD 262, 243 SCRA 196 [1995). 19Simon v. Civil Service Commission, 215 SCRA410 (1992}. 20 National Land Titles and Deeds Registration Administration v. Civil Service Commission, 221 SCRA 145 [i993]. 21De la Llana v. Alba, 112 SCRA 294 [1982].

ADMINISTRATIVE LAW Introductory

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administering and implementing particular legislations.22 The l'<"-\­ sons why there has been a need for, and a growing number of, spe­ cialized administrative agencies are as follows: 1. To unclog court dockets. To relieve courts of the burden of resolving all controversies, specialized agencies have been created to hear and decide particular disputes.23 2. To meet the growing complexities of modern society. As problems of modern society multiply, which can hardly be met by the legislature, administrative agencies are established to promptly cope up with such problems. 24 3. To help in the regulation of ramified activities of a developing country. 26 4. To entrul?t to specialized agencies in specified fields with their special knowledge, experience, and capability the task of dealing with problems thereof as they have the experience, expertise and power of dispatch to provide solutions thereto.26 These reasons necessitate the creation by Congress of a number of administrative agencies. '

The most common types of administrative bodies tasked with the duties· and powers of performing administrative, regulatory, investigative, quasi-legislative and quasi-judicial functions, or one or any combination thereof, may be classified as follows: 1. Agencies c'reated to function in situations wherein the government is offering some gratuity, grant, or special privileges, like the defunct Philippine Veterans Boara, Board on Pensions for Veterans, Philippine Veterans Administration, Government Service Insurance System, and the Social Security System. 2. Agencies. set up to function in situations wherein the government is seeking to carry on certain governmental functions, like the Bureau oflmmigration, the Bureau of Internal Revenue, the Board of Special Inquiry and Board of Commissioners, the Civil Service Commission, the Central Bank. 22Republic v. Court of Appeals, 200 SCRA 226 (1991]. 23Lianga Bay Logging, Inc. v. Judge Enage, July 16, 1987. 2 'Solid Homes, Inc. v. Teresita Payawal, Aug. 29, 1989. 25/bid.; Reyes v. Caneba. 26 /bid.; Blue Bar Coconut Phil. v. Tantuico, Jr., July 29, 1988; Packet Bell Phil., Inc. v. SEC, May 19, 1987.

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3. Agencies set up to function in situations wherein the government is performing_ somP. h11siness service for the public, like the Bureau of Posts;·fhe Postal Savings Bank; Metropolitan Waterworks and Sewerage Authority, Philippine National Railway s, the Civil Aeronautics Administration. 4. Agencies set up to function in situations wherein the government is seekinP- ta :ce�ulate businer-;s affected with public inter­ est, like the .1<·1ber inspection Board, the Philippines Patent Office, Office of the Insurance Commissioner. 5. Agencies set up to function in situations where the government is seeking�r the _police power to regulate private business and md1viduaJs, like the 8ecurities and Exchange Commission, Board of Food Inspectors, the Board of Review of Motion Pictures, and the Professional Regulation Commission. 6. Agencies set up to function in situations wherein the government is seeking_ to adjust indiYidual contr.9versifi?S because of some strong social policy invo1vea, such as the National Labor Relations Commission, the Court ofAgrarian Relations, the Regional Offices of the Ministry of Labor, Bureau of Labor Standards, Women and Minors Bureau. 27 7. Agencies set up to function in situations where the government is seekinE,Lto conduct investigations and gath�r e�nce for information, recommenaauon or pro;ecution of cnmes, such as the Commission on Human .K1ghts, the National Bureau of Investigation and the Prosecutor's Office.

�=- :. =.l .-1.nli-Dollar Salting Task Force v. CA,.171 SCRA 348 (1989].

CHAPTER II POWERS OF ADMINISTRATIVE AGENCIES A. IN GENERAL §2.08. Generally: The basic corollary principles of the allocation of powers into legislative,judiciary and executive, are the separation of powers and the system of checks and balances among them, designed to prevent concentration ofpowers. As a rule, the doctrine of separation of powers prohibits the delegation 01 legislative power, the vesting of judicial officers with non-judicial functions, as well as the investing of non­ judicial officers with judicial powers. 1 But while one branch is not to invade the domain of the other, no one branch can act without anv participation or check from the other branches, which the Constitution r�cogmzes and permits. . The doctrine of separation of powers is not an iron-clad restriction against delegation of powers. The principle has been made to adapt itself to the comolexities of modern governments.Accordingly, with the growing comp1ex11;y or mooern life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the laws, the rigidity of the theory of separation of governmental powers has, to a large extent, been relaxed by permitting the delegation of greater powers by the legislature and the vesting of a larger amount of discretion in administrative and executive agencies arid officials, not only in the execution of the laws, but also in the promulgation of certain rules and r�gulations and the adjudication of claims and disputes calculated to promote public interest.2

1 1 Am. Jur. 2d 872. · 2Cal!'llang v. Willi.ams, 70 Phil. 726 [1940].

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Administrative agencies neither fall under the legislative nor judicial branches ofgovernment. Hence, in accordance with the three classifications ofgovernmental powers, they more .logically fall under the executive department. 'rhey are granted by the legislature with administrative, executive, investigatory, legislative or judicial powers or a combination of these, as exceptions to the general rule against delegation of power. 3 They are thus a distin·c t department of government. Administrative agencies have powers or functions which are administrative and sometimes ministerial in character as well as quasi-legislative or quasi-judicial power, as may be conferred by the Constitution or by law.4 They have only such powers �s are expressly granted to them by law and those that are'necessarily implied in the exercise thereof. 5 The two most important powers of administrative officers are the quasi-legislative and the quasi-judicial powers. The first.enables them to promulgate implementing rules and regulations, and the second enables them to interpret and apply such regulations. Such arrangement has been accepted as a fact oflife ofmodern governments and cannot be considered as violative of due process as long as the cardinal requirements thereof are observed. 6 It has been said that this combination of powers is the principal reason which has given rise to the necessity of "Administrative Law" as a new classification of the law.7 §2.09. Vesture of powers liberally construed.

It is a settled principle oflaw that in determining whether an administrative agency has certain powers, the inquiry should be from the law itself and the authority given should be liberally construed in the light of the purposes for which it was created, and that which is incidentally necessary to a full implementation of the legislative intent should be upheld as being germane to the law. Necessarily, too, where the end is required, the appropriate means are deemed given.8 31 Am. Jur. 2d 872. 4 Filipinas Engineering and Machine Shop v. Fener, Feb. 28, 1985. •Guerzon v. CA, 164 SCRA 182 (1988]. '�o.,:trn Shipping Lines, Inc. v. POEA, 166 SCRA 533 [1988]. ··:. -"-= J-_, 2d 890. ...,,.,..., ' .:. · .�.Li.,lJera, 162 SCRA l [1988].

ADMINISTRATIVE LAW Powers of Administrative Agencies B. Express and Implied Powers

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Liberal construction is adopted to enable administrative agi:·.n­ cies to discharge their assigned duties in accordance with the legis­ lative purpose or intent., For instance, in line with this policy, ;·;,1e Supreme Court sustained the competence of National Housing Au­ thority, in the exercise of the jurisdiction vested in it by P.D. No. 957 and P.D. No. 1344, to determine the rights of the parties under a contract to sell a subdivision lot.9 It upheld the power of the board of transportation to issue provisional permits as a step towards the legalization of colorum taxicab operations. 10 It held that the power of the secretary of public works and communications to order the removal, as a public nuisance, of the construction or building of dams, dikes which encroach into any public navigable river, stream, coastal waters and any navigable public waters or waterways, includes the incidental authority to determine whether the encroachments, though within titled property, are within the bed of a river, which can be declared a public nuisance and ordered removed. 11 The powers of executive or administrative agencies or officials are either express and implied, or discretionary and ministerial, or directory and mandatory.

B. EXPRESS AND IMPLIED POWERS §2.10. Generally. Public officials possess powers, not rights. There must be a grant of authority, whether express or implied, to justify any action taken by them. In the absence thereof, what they do as public officials lacks validity and, if challenged, must be set aside. Law is the only supreme power under constitutional government, and every man who by accepting office participates in its function is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.12 A public official exercises power within the law which grants it. The government_itself is merely an agency through which the will of 9Solid Homes, Inc. v. Payawal, 177 SCRA 72, 79. 10M atienzo v. Abellera, 162 SCRA 1 [1988J. "Heirs of Santiago Pastral v. Secretary of Public Works and Communications, 162 SCRA 619 [1988]. 12Sarcos v. Castillo; 26 SCRA 853 [1969].

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the state is expressed and enforced. Its officials therefore are like­ wise agents entrusted with the responsibility of discharging its func­ tions. As such there is no presumption that they are empowered to act. There must be a delegation of such authority; either express or ·implied. In the absence of a valid grant, they are devoid of power. What they do suffers from fatal infirmity. It must be conceded that departmental zeal may not be permitted to outrun the authority conferred by statute. Neither the high dignity of the office nor the righteousness of the motive is an acceptable substitute. Otherwise the rule of law becomes a myth. 13 Except for constitutional officials who can trace their co�pe­ tence to act to the fundamental law itself, a public official must locate in the statute relied upon a grant of power before he can exercise it. It need not be express. It may be implied from the word­ ing of the law. 14 It is axiomatic in our constitutional framework that government branches and administrative agencies exercise only that power delegated to them as defined in the Constitutipn or in legisla­ tion or in both. The quantum of powers possessed by an administra­ tive agency forming part of the executive branch will be limited to that conferred expressly or by necessary or- fair implication in its enabling act. An administrative officer has only such powers as are expressly granted to him and those necessarily implied in the exer­ cise thereof. 15 §2.11. Grant of jurisdiction and what is impli¢d therefrom. Settled is the rule that jurisdiction to hear and decide cases, which involves the exercise of adjudicatory power, is conferred only by the Constitution or by statute. It cannot be conferred by the Rules of Court. 16 "Jurisdiction over the subject matter must exist as a matter of law and cannot be fixed by agreement of the parties, ac­ quired through, or waived, enlarged or diminished by, any act or omission; neither can it be conferred by acquiescence of the tribu­ nal."17 An administrative agency cannot grant itself jurisdiction to decide a particular matter by issuing the appropriate rules and regu-

Villegas v. Subido, 30 SCRA 498 [1969]. Radio Communications of the Phil., Inc. v. Santiago, 58 SCRA 493 (1974]. 15Azarcon v. Sandiganbayan, 79 SCAD 954 (1997]. 16Pimentel v. COMELEC, 101 SCRA 769 (1980]. 17Chung Ka Bio v. IAC, 163 SCRA 534, 545-546 (1988]. . 13

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ADMINISTRATIVE LAW Powers ofAdministrative Agencies B. Express and Implied Powers

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lations in the exercise of its quasi-legislative power, where the enabling statute does not so confer. 18 Jurisdiction cannot be implied from the lan�age_of � statute in the absence of a. clear legislati.�e.. intent to that effect.19 If the language of the law is clear as to the scope of jurisdiction granted, it cannot be construed to include that which is not conferred. The In­ surance Code, for instance, grants the Insurance Commissioner the power to adjudicate claims and complaints not exceeding one hun­ dred thousand pesos in any single claim, excluding interest, costs and attorney's fees, involving any loss, damage or liability for which an insurer may be answerable under any kind of policy or contract for insurance. It has been held that this jurisdiction does not cover claims or complaints arising from relationship affecting insurance company and its agents as the commissioner's quasi-judicial author­ ity is limited to adjudicating claims and complaints filed by the in­ sured against the insurance company. 20 Problems as to whether an administrative agency has jurisdic­tion over certain matters arise when the language of the law is not clear. In Garments a.nd Textile Export Board v. Court of

Appeals,21 the issue raised is whether the Board has jurisdiction to

resolve as to who, between two contending private entities, is entitled to cer­tain garm�nt quotas, pu_r sua:f!t to the _power gra?ted it by __ law to cancel or suspend .quota allocations. While holding that the Board has the jurisdiction to do so, the Court equivocated as to whether the grant was express or merely implied, apparently because the lan­guage of the law is· not so clear. It said: "On the basis of the provi­sions of law cited x x x, that power to adjudicate on the question of an entity's entitlement to export allocations was expressly granted to the GTEF, or at the very least, was necessarily implied from the power to cancel or suspend quota allocations, is beyond cavil."22 The grant of judicial or quasi-judicial power to try actions car­ ries with it all necessary and incidental powers to employ all writs, processes and other means essential to make its jurisdiction effec­tive.23 Every regularly constituted court or quasi-judicial body has 18Taule v. Santos, 200 SCRA 512 (1991}.

19Pimentel v. COMELEC, 101 SCRA 769 [1980); Dimagiba v. Heraldez, 102 Phil. 1016 (1958] . 20Phil. American Life In s. Co. v. Ansaldo, 234 SCRA 509 [!994]. 2179 SCAD 515, 268 SCRA 258 (1997]. 22/bid., p. 295. 23Shioji v. Harvey, 43 Phil. 333 (1922]; Suanes v. Chie f Accountant of the Eer.­ ate, 81 Phil. 877 (1948].

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power to do all things which are reasonably necessary for the admin­ istration of justice within the scope of its jurisdiction and for the enforcement of its judgments and mandates.24 Accordingly, unless the enabling law provides otherwise, a quasi-judicial body has the power to issue a writ of execution for the enforcement of its decision. 25 The exercise of judicial or quasi-judicial power requjres that there be rules of procedure of the administrative agency which parties invoking its jurisdiction and seeking reliefs therefrom have to follow. The grant of quasi-judicial power to the agency carries with it the power to issue and promulgate rules of procedu.re for the proper exercise of its adjudicatory power, even though the enabling law is silent on the matter. For it is settled that where a general grarit of power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred, by necessary implication.26 Hence, where the law does not prescribe the particular method to be followed by an administrative agency in the exercise of a power vested in it by law, the agency may adopt any reasonable method to carry out is functions. 27 In GSIS v. Civil Service Commission,28 the Supreme Court ruled that the Civil Service Commission, in the exercise of its quasi-judicial function, has the power to order execution of its d_ecision which has become final. It said that the grant to the tribunal or agency of adjudicatory power, or the authority to hear and adjudge cases, should normally and logically be deemed to include the grant of authority to enforce or execute the judgments it thus renders, unless the law · otherwise provides, for the authority to decide cases is inutile unless accompanied by the authority to see that what has been decided is · carried.

C. MINISTERIAL AND DISCRETIONARY POWERS §2.12. Ministerial power. The duties and powers of public officers may either be ministe­ rial or discretionary. A ministerial duty is one which is so clear and 2 'PAL Employees' Assn. v. PAL, 120 Phil. 383 (1964). 26GSIS v. Civil Service Commission, 202 SCRA 799 (1991). 26Angara v. Electoral Commission, 63 Phil. 139 (1936). 27Provident Tree Farms, Inc . v. Batario, Jr., 49 SCAD 803,231 SCRA463 [l:994). 28202 SCRA 799 (1991].

ADMINISTRATIVE LAW Powers ofAdministrative Agencies C. Ministerial and Discretionary Powers

specific as to leave no room for the exercise of discretion in its per­ formance. A purely ministerial act or duty, in contradistinction to a discretionary act, is one which an officer or tribunal performs in a given state of f�cts, in a_ prescribed manner, in obedience to the mandate of legal authority, without regard to the existence of his own judgment, upon the propriety or impropriety of the act done. If th� la.w _iµiposes �.Q�U'. �P.Qn -� pybl�c _Qfficer,. �pg gives bJµi the right to decide how '?!.when. the cluty sl?-all be pe_ rformed, such dut� c\i§lcr�tlc.>nw.y_and not ministerial. The duty is ministerial only when the discharge ot the same requires neither the exercise of official discretion nor judgment.29 The fact that the duties of an official are ministerial does not necessarily follow that he may not, in the administration of his office, determine questions of law. This determination of what the law is involves the exercise of judgment.30 §2.13. Ministerial duty distinguished from discretionary power. .

A ministerial duty is one which is so clear and specific as to leave no room for the exercise of discretion in its performance. On the other hand; a discretionary duty is that which by its nature requires the exercise ofjudgment. A purely ministerial act or duty is one in which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate oflegal authority, without regard to ot the exercise of his own judgment, upon the propriety of the act done. But if the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is. ministerial only when the discharge of the same requires neither the exercise of official discretion nor judgment.31 The distinction between ministerial and discretionary powers or duties is important to determine what remedy may be availed of by an aggrieved party against the non-performance of duty by the officer. If the duty· is ministerial, mandamus may lie to compel performance; ifthe duty is discretionary, a petition for certiorari may 211Carino v. Capulong, 41 SCAD 775, 222 SCRA 593 (1993); Mateo v. Court of Appeals, 196 SCRA 280. 30 Asuncion v. De Yriarte, 28 Phil. 67 [1914). 31 S ymaco v. Aquino, 106 Phil. 1130 [1960); Mateo v. CA, 196 SCRA 280 [1991].

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lie where there is grave abuse of discretion amounting to lack of jurisdiction on the part of the official or administrative agency. §2.14. Discretionary power.

As a general rule, discretion is the faculty conferred upon an official by which he may decide a question either ·way and still be right. 32 Discretion, when applied to public functionaries, means a power or right conferred upon them by law of acting officially, under certain circumstances, uncontrolled by the judgment or consciences of others. If the law imposes a duty upon a public officer and gives him the right to decide how or -,.,.hen the duty shall be performed, such duty is discretionary and not ministerial.33 A discretion entrusted to a public officer may not, as a rule, be delegated. It has been held that an officer to whom a discretion is entrusted cannot delegate it to another, the pre�umption being that he 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, he cannot delegate his duties to another. In those cases in which the proper execution of the office requires on the part of the officer the exercise of judgment or discretion, the presumption is that he 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, he cannot delegate to another. 34 Discretion is, in the carrying out of public functions, the faculty or right which the law confers to act officially under certain circumstances according to the dictates of other's own con��ience or judgment without the imposition of the judgment or con�cience of others. 35 When applied to public functionaries, it means a power or right conferred upon them by law of acting, under certain circumstances, uncontrolled by the judgment or conscience of others. If the law imposes a duty upon a public officer and gives· him the right to decide how or when the public duty shall be performed, such

(1992). .

32Asuncion v. De Yriate, 28 Phil. 67 [1914]; Young v. Monblan, 205 SCRA 33

33Mei-alco Securities Corporation v. Savellano, 117 SCRA 804 (1982]. Binamira v. Garrucho, 188 SCRA 154 (1990]. 36People v. Ramos, 78 Phil. 392 [1947].

34

ADMINISTRA'I'IVE LAW Powers of Administrative Agencies D. Mandatory and Permissive Duties and Powers

., -'

duty is discretionary.36 A discretionary duty is that which by its nature requires the exercise of judgment.37 Discretion means sound discretion exercised not arbitrarily or willfully, but wit4 r�gard to what is right and equitable under the circumstances an_d the law and directed by officer's reason and conscience to Just result.�8 ln the absence of arbitrariness or grave abuse of discretion, the officer conferred with discretion to decide a question may decide the question either way and still be right39 and his decision is not subject to the contrary judgment or control of others.40

D. MANDATORY AND PERMISSIVE DUTIES AND POWERS §2.15. Generally.

- The powers and duties of public officers or administrative agencies may also be classified as mandatory or permissive. The question as to whether a duty or power vested in an official or admin!strative agency is mandatory or permissive depends upon the kind--0f .the statute whic..h.g_ranted such pqwer. _Statutes may be ..classified either as mandatory or directory. The classification is important in resolving the question of what effect should be given to the mandate of a statute. Will an act done in violation of a statute render it void? Will the nonperformance of what a statute prescribes make the proceedings to which it relates invalid? Will the person violating the statute be held liable therefor? The answers to these and similar questions depend on whether the statute is considered mandatory or merely directory.

§2.16. Mandatory and directory powers or duties, generally.

The law defines whether a function or power vested in an official or administrative agency is mandatory or directory. A mandatory statute is a .statute which commands either positively that some36Republic v. Capulong, 199 SCRA 134 (1991]. 37Mario v. Capulong, 222 SCRA 593 (1993}. 38People v. Quibate, 131 SCRA 96, Dissent (1984}. 39 Young v. Monblan, 205 SCRA 33 (1992}. 0 • Meralco Securities Corp. v. Savellano, 117 SCRA 804 (1982).

ADMINISTRATIVE LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW

18

thing be done, or performed in a particular way, or negatively that something be not done,41 leaving the person concerned no choice on the matter except to obey.42 A mandatory statute is one that· contains words of command or of prohibition,43 the omission to follow which renders the proceeding to which it relates illegal and void, or the violation of which makes the decision therein rendered invalid.44 Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself a.uthorizes their valid­ ity.45 Where a statute is mandatory, the court or quasi-judicial tribu­ nal has no power to distinguish between material and immaterial breach thereof or omission to comply with what it requires. What the law decrees must be obeyed against pain of sanction or declaration of nullity of what is done in disregard thereof.46 A directory statute is a statute which is permissive or discre­ tionary in nature and merely outlines the act to be done in such a way that no injury can result from ignoring it or that its purpose can be accomplished in a manner other than that pres. cribed and sub­ stantially the same result obtained.47 A statute which merely· oper­ ates to confer discretion upon a person, namely, to act according to the dictates of his own judgment and conscience and not controlled by the judgment and conscience of others, is directory.4 8 Considering 'the nature of a directory statute, the nonperforIIlance �f what it prescribes, though constituting in some instances an irregularity or subjecting the official concerned to disciplinary or administrative sanction, will not vitiate the proceedings therein taken. 49

§2.17. When mandatory or directory. There is no universal rule by which dir�ctory provisions in a statute may in all circumstances be distinguished from those which are m�ndatory. Neither is there an absolute test for determining

"Brehn v. Republic, 9 SCRA 172 [1963). 2 Sarina v. Court ofFirst Instance ofBukidnon, 24 SCRA 715 [1968). 43 Brehn v. Republic, 9 SCRA 172 [1963). "Provincial Treasurer ofNegros 0cc. v. Azcona, 115 Phil. 618 [1962). 46Art. 5, Civil Code; Buyco v. PNB, 112 Phil. 588 (1961). 46 Sarina v. Court ofFirst Instance ofBukidnon, 24 SCRA 715 (1968). 47Miller v. Lakewood Housing Co., 180 NE 700, 81 ALR 1239 (1932). 48 Capati v. Ocompo, 113 SCRA 794 ( 1982]; Meralco Securiti�s Corp. v. Savellano, 117 SCRA 804 [1982]. 49Marcelino v. Cruz, G.R. No. 42428, March 18, 1983; Phil.Assn. of Free Labor Unions v. Secretary of Labor, 27 SCRA 40 (1969]. '

ADMINISTRATIVE LAW Powers of Administrative Agencies D. Mandatory and Permissive Duties and Powers

19

whether a statutory direction is to be considered mandatory or dir?-c­ tory. In the determination of this question, t}:ie_ primary object is ascerta,.Jn leg�slative intent. The legislative intent must be obtaimd from all the surrounding circumstances, and the deter-mination does not depend on the form of the statute. Consideration must be given to the entire statute, its object, purpose, legislative history, and the consequences which would result from construing it one way or the other, and the statute must be construed in connection with other related statutes. Words of permissive character may be given a mandatory significance in order to effect the legislative intent, and, when the terms of a statute are such that they cannot be made effective to the extent of giving each and all of them some reasonable operation, without construing the statute as mandatory, such construction should be given.r:0

:.o

On the other hand, the language of a statute, however manda­ tory in form, may be deemed directory whenever the legislative purpose can best be carried out by such construction; but the con­ struction of mandatory words as directory should not be lightly adopted and never where it would in fact make a new law instead of that passed by the legislature. Whether a statute is mandatory or directory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form, and wh1:1t is a matter of essence can often be determined only by judicial con­ struction. Accordingly, when a particular provision of a statute re· lates to son;ie immaterial matter, as to which compliance with the statute fa a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition; and a statute is regarded as directory where no substantial rights depend on it, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that pre­ scribed, with substantially the same result. On the other hand, a provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute, which directs acts or proceedings to be done in a certain way, shows that the legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when some antecedent and prerequisite conditions must exist prior

"°Tafiada v. Cuenco, 103 Phil. 1051 [1957].

20

ADMINISTRATfVE LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW

to the exercise of the power, or must-be performed before certain other powers can be exercised, the statute must be regarded as mandatory. 51 §2.18. Test to determine nature of statute and that of power. The test generally employed to determine whether a statute is mandatory or directory or that of the power vested by it is to ascertain the consequences that will follow in case what the statute requires is not done or what it forbids is performed. Does the statute prescribe a result in addition to, or apart from, what it ·requires? Will third parties suffer as a consequence of what the person charged· by the statute to do within a prescribed limit fails to do? Does the law give a person no alternative choice? Is what the statute prescribes a matter of substance and not of form? Will there be more injury to the public by a disregard of what the law provides? If the answers are in the affirmative, the statute is, as a rule, mandatory; otherwise, it is directory. Whether a statutory ·requirement is mandatory or directory depends on its effect. If no substantial rights depend on it and no injury can result from ignoring it; and the purpose of the legislature can be accomplished in a manner other than that prescribed and substantially the same results obtained, then the statute will generally be regarded as directory; but if not, it will be mandatory. 52 Similarly, statutory requirements intended for the protection of the citizens and by a disregard of which-their rights are injuriously affected are regarded as mandatory; they must be followed or the acts done will be invalid. The power of the officer in such cases is limited })y the manner and conditions for its exercise. 63. A statute will not be construed as mandatory and requiring a public officer to act within a certain time limit ev.en if it is couched in words of positive command if it will cause hardship or-injustice on the part of the public who is not at fault.64 Nor will a statute be interpreted as mandatory if it will lead to absurd, impossible or mischievous consequences. The statute will instead be construed as directory, so as to avoid such results, without prejudice to subjecting 61 /bid. 62Miller v. Lakewood Housing Co., 180 NE 700, 81 ALR 1239 [1932). 63Lyon v. Alley, 32 L.ed. 899 [1889). 6'Querubin v. Court of Appeals, 82 Phil. 226 [1948).

. ADMINISTRATIVE LAW Powers of Administrative Agencies E. Errors in Exercise of Powers

21

the officer concerned to administrative sanction for his failure to do what th.e law requires.66

E. ERRORS IN EXERCISE OF POWERS §2.19. Government not bound by errors of public officers.

� The government can do no wrong. It authorizes only legal acts by its officers. Its officers and agents do wrong or commit unauthorized acts. Aild when they do, they are not errors or-acts of the government. For this reason, the government is never estopped by such mistake or erro:c. Neither does it bar future action in accordance with law. If the mistake or error causes prejudice to another and it is done in bad faith or beyond the scope of his authority, he alone is liable therefor and he cannot invoke the non-suability of the st&-ce as a defense against his personal_ liability.56 _r;fistakes of government personnel in performance oftheir duties should not affect public interest. Errors of public officers should never deprive the people of the right to rectify them and recover what might be lost or bartered away in any action, deal or transaction concerned. 57 The state authorizes only legal acts.by its officers. Unautho­ rized acts of government officials are not acts of the state, and an action against the officials by one whose rights have been invaded or violated by such acts, for the protection of his rights, not a suit against the state within the rule of immunitY.. of the state from suit. Similarly, an action at law against a state officer on the ground that, while claiming fo act for the state, he violates or invades the per­ sonal ·and property rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the state within the constitutional provision that the state may not be sued without its consent. Thus, an officer sued in his private or personal capacity for acts done beyond the scope of his authority or for unlawful or tortious acts while discharging offi­ cial function, cannot invoke the doctrine of �tate immunity from suit. 55Marcelino v. Cruz, G.R. No. 42428, March 18, 1983. �Republic v. PhiL Rabbit Bus Lines, Inc., 32 SCRA 211 [1970]; Director ofBu­ reau of Telecommunications v. Aligaen, 33 SCRA 368 [1970]; Zamora v. Court of Tax Appeals, 36 SCRA 77 (1970]. 57Leveriza v. IAC 157 SCRA 282 [1988).

22

ADMINISTRATIVE LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW

For the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.58 §2.20. Government is not estopped by mistakes of officers.

It is familiar rule that erroneous application and enforcement ofthe law by public officers do not block subsequent c9rrect application of the statute and that the government is never estopped by mistake or error on the party of its agent.69 In other words, the government can subsequently correct the mistake or the erroneous application of the law. 60 A person acquires no vested right in such mistake. It is a firmly settled rule of law that the Government is not bound by the errors committed by its agents. In the performance of its governmental functions, the State cannot be estopped by the neglect of its agents and officers. Although the. Government may generally be estopped through the affirmative acts of public officers acting within the their authority, the neglect or omission of public duties will not and should not produce that effect.61 The rule is more true than in the field of taxation. It is axiomatic that the Government cannot and must not be estopped particularly in matters involving taxes. Taxes are the lifeblood of the nation through which the government agencies continue to operate an� with which the government agencies continue to operate and with which the State effects its functions for the welfare of its constituents. The errors of certain administrative officers should never be allowed to jeopardize the Government's financial position. 62 §2.21. Presumption of regularity.

Government officials are presumed to perform their functions with regularity and strong evidence is necessary. to rebut this presumption.63 Under the law of public officers, acts done in the performance of official duties are protected by the presumption of good faith, and even mistakes committed by such public officers are 68United States of America v. Reyes, 219 SCRA 192 [1993]; Shauf v. Court of Appeals, 191 SCRA 713 [1990). 69People v. Castaneda, 165 SCRA 327 [1988). 60Philippine Basketball Assn. v. CA, 131 SCAD 364, 337 SC� 358 [2000]. 61Commissioner of Internal Revenue v. Court of Tax Appeals, 234 SCRA 348 : · [1994]. 62lbid. ss,ratad V. Garcia, 60 SCAD 480, 243 SCRA 436 (1995].

ADMINISTRATIVE LAW Powers of Administrative Agencies E. Errors in Exercise of Powers

not actionable as long as it is not shown that they were motivated by malice or gross negligence amounting to bad faith.64 The legal presumption is that official duty has been duly per­ formed. This presumption is particularly strong as regards adminis­ trative agencies vested with powers which are quasi-judicial in na­ ture, in connection with enforcement of laws affecting particular fields of activity, the proper regulation and/or promotion of which requires a technical or special training, aside from a good knowledge and grasp of the over all conditions, relevant to said fields, obtaining in the nation. For this reasori, unless there is absolutely no evidence to support its decision or finding or such evidence is clearly, manifestly and patently insubstantial, findings of fact of an administrative agency are accorded respect and finality.65

6•Sanders v. Veridiano II, 162 SCRA 88 [1988). 65Blue Bar Coconut Phil. v. Tantuico, 163 SCRA 716 [1988].

CHAPTER Ill POWER OF CONTROL, SUPERVISION AND INVESTIGATION A. PRESIDENT AS CHIEF EXECUTIVE AND ADMINISTRATIVE OFFICER §3.22. Generally.

The President and other executive or administrative agencies or bodies are granted powers and functions by the Cpnstitution or by statutes to enforce the laws and to carry out the governmental functions, as well as policies and objectives provided in statutes creating them. Among such powers are those of control, supervision and investigation. §3.23. Executive power of the President.

· The President is the Chief Administrative Officer of the Government. While the Constitution does not expressly say so, he has that position by reason of his being the Chief Executive and the head of government. He welds all administrative powers that inhere in such position. Administrative power is an adjunct, and is designed to complement the effective exercise, of executive power, vested in the President. Administrative agencies o r bodies exercising administrative, investigative, rule-making, and quasi-judicial powers, as conferred by law, are parts of the executive branch 0f government, as they are neither legislative nor judicial in the allocation of the great powers among the three branches of government - the legislative, executive and judicial departments. Administrative powers of the President can be implied from his executive power. An understanding of executive power is therefore in 24

ADMINISTRATIVE LAW Power of Control, Supervision and Investigation A. Presidimt as Chief Executive and Administrative Officer

25

order. hi Marcos v. Manglapus, 1 the Supreme Court sumrneo ·.1p executive power.as follows: "As stated above, the Constitution provides that '(t)he executive power shall be vested in the President of the Philippines.' (A.rt. VII, Sec. 1). However, it does not define what is meant by 'executive power' although in the same article it touches on the exercise of certain powers by the President, i.e. , the power of control over all executive departments, bureaus and offices, the power to execute the laws, the appointing power, the powers under the commander-in-chief clause, the power to grant reprieves, commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit the budget to Congress, and the power to address Congress (Art. VII, Secs. 14-23). XXX

"The inevitable question then arises by enumerating certain powers of the President. Did the framers of the . Cons.titution intend that the President shall eiercise those specific powers and no other? A.1:e these enumerated powers the breath and scope of 'executive power'? x x x. XXX

"It would not be accurate, however, to state that 'executive power' is the power to enforce the laws, for the President is head of state as well as head of government and whatever powe'rs inhere in such positions pertain to th·e office unless the Constitution itself withholds it. Furthermore,· the Constitution itself provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., h�s power over the country's foreign relations. "On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise

,.1177 SCRA 668 [1989].

26

ADMINISTRATIVE LAW, LAW ON PUBLIC OFJi'ICERS AND ELECTION LAW

of specific powers of the President, it mafntains intact what is traditionally considered within 1 the scope of 'executive power.' Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. §3.24. President's power of control.

.::::- Section 17, Article VII of the 1987 Constitution provides that the "President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed." The President's power of control means his power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute his judgm ent with that of the latter. It is said to be the very heart pf the meaning of Chief Executive. The presidential power of contrQl over the executive branch of government extends to all executive officers from cabinet secretary to the lowliest clerk in the executive department. He is the Chief Executive, the head of government and the chief administrative officer.2 The power of control under th�_const�tutional provision implies the right of the President to interfere in the exercise of such discretion as may be vested by law in the officers of the executive departments, bureaus, or offices of the national government, as well as to act in lieu of such officers. 3 The President, in the exercise of the powers of control, can do what any of his cabinet secretary can lawfully do as conferred by law._ Jj'or instance, i�Araneta v. Gatmaitan,4 the legality of the President's issuance of an executive order banning fishing by trawl was questioned because the Secretary of Agriculture, and not the President, was the official authorized by Congr ess to issue rules and regulations to implement the ban on trawl fishing. In sustaining the legality of the executive order, the Supreme Court ruled that since the Secretary of Agriculture was empowered to regulate or ban fishing by trawl, the President, in the exercise of his power of control, can take over from him such authority and issue the executive order 2Carpio v. Executive Secretary, 206 SCRA 290 (1992]. Pelaez v. Auditor General, 15 SCRA 569, 582, 583 (1965). 4101 Phil. 238 (1957]. 3

ADMINISTRATfVE LAW

27

Power of Control, Supervision and Investigation

A. President as Chief Executive and Administrative Officer

to exercise it. The President's power of control means that if a cabinet secretarv or a head of a bureau or ae:encv can issue rules and �eguiauons. as autnonzea ov 1aw. tne rresment nas tne power not onlv to modifv or amend the same but can also sunnlant the rules bv another set entirelv diflerent from those issued bv his subordinate. The President exercises the power of control through executive departments and executive officials. Under the Constitution. all executive and administrative oriranizations are adiuncts of the P.XP.r.nt.ivP. i!P.nRrt.mP.nt.. t.hP. hP.ROR ofthP. vRrim1R P.XP.r.ut.ivP. i!P.m:irt.mP.nt.c: are assistants and· a1rnnts of the Chief Executive. and, except in cases where the Chief Executive is required by the Constitution or the law to .act in oe'rson or the exigencies of the situation demand that he act nersonallv. the multifarious executive and administrative 'fnnr.t.ionR of t.}-lP. (;hiP.f F.,rnr.nt.ivP. ATP. OP.rformP.n hv ROO t.hronuh t.hP. executive deoartment secretaries as his alter egoes, and the acts of the secretaries of such departments, performed and promulgated .in the regular: course of business, are, unless disapproved or reprobated by the ChiefExecutive, preemptively the acts of the ChiefExecutive.5 The totality of executive power is vested in the President by the Constitution. It means that the President is the Executive of the Government and. no other. The heads of the executive departments occupy political positions and hold office in an advisory capacity and should be the President's bosom confidence. Each head of a department is, and must be, the President's alter ego in the matters of that department.where the President is required by law to exercise. The President's power of control includes the power to detail aq executive officer in the Office of the President. or to any executive office. without anv orior aooroval from anv executive officer, so long as_ there is no reduction in rank or salarv and is not considered as El disciolinarv action. In this sense, for those discharging purely executive functions in the national government, he gives orders to all and takes orders from none. (Tecson v. Salas, 34 SCRA 275 [1970)). Hence, the act of the President �annot be countermanded by a deoartment secretarv who is a mere subordinate of the President6 nor can a subordinate of a department secretary disregard his superior's altering his action in the performance of his function as the department secretary, who has power of control over him, acts as

6Tecson v. Salas, 34 SCRA 275 (1970). 6Franche v. Hernandez, 109 Phil. 782 [1960].

28

ADMINISTRATIVE LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW

the President's alter ego and his action is presumed to be that ofthe President. 7 §3.25. Doctrine of qualified political agency. The President cannot be expected to exercise his control powers all at the same time and in person, and there is need for him to delegate some of them to his Cabinet members. This reality or truism gives rise to the doctrine of qualified po1itical agency. Under this doctrine, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and_agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or i:eprobated by the Chief Executive, preemptively the acts of the Chief Executive. In other words, the President's power ofcontrol is directly exercised by him over the members of the Cabinet who, in turn, and by his authority, control the bureaus and other offices under their respective jurisdictions in the executive departments.8 The acts ofa department Secretary are presumed to be the acts of the President. Thus, where the President is granted the authority to sell certain parcels of land, the sale effected by a department Secretary has the same effect as if done by the President himself.9. §3.2EJ. I,\y aut horit y of the President. The Executive Secretary or his Deputy or Assistant Executive Secretary or any cabinet secretary, who acts and signs "By Authority of the President," acts not for himself but for the Presidept. Thus, acts or contracts executed by the Executive or Deputy Executive Secretary "By Authority of the President" are presumed valid and

7

(1984).

Noblejas v. Salas, 67 SCRA 47 [1975]; Vda. de Jacob v. Puno,.131 SCRA 144

8lbid. 9Juat v. Land Tenure Administration, 1 SCRA 361 (1961]; Carpio v. Executive Secretary, 206 SCRA 290 (1992].

ADMINISTRATIVE LAW Power of Control, Supervision and Investigation A. President as Chief Executive and Administrative Officer

29

performed in behalf of the President and should thus be accorded due respect. One of his my riad functions is to exercise prim&ry authority to sign papers "By authority of the President." He attests executive orders and other presidential issuances unless attestation is specifically delegated to other officials by him or by the President; assists the President in the administration of special projects; and perform such other functions as the President may direct. His personality is in reality but the projection of that of the President, his acts, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively th.e acts of the Chief Executive. Such acts are not subject to review by the courts in view of the principle of separation of powers which accords cb-equal status to the three great branches of the government, absent any showing that the President, in doing so, acted with grave abuse of discretion amounting to lack or excess of jurisdiction. 10 The Executive Secretary or even a Deputy or Assistant Executive Secretary, if he acts "By authority of the President," can modify, alter, or set aside acts or rulings of a department secretary as he acts for and on behalf of the President." 11

§3.27. Limitations o:ri the President's control power.

The power o f control of the President over executive departments, bureaus or offices implies, as a rule, no more than the authority to assume directly the functions thereof, to interfere in the exercise of discretion by its officials, or to alter, modify or set aside what a subordinate o_fficials have done and to substitute his judgment for that of the latter. Generally speaking, the power of control does not include the following: (i-) the abolition or creation of an executive office, 12 �) the,suspension or removal of career executive officials or employees without due process of law, 13 and (SJ the setting aside, modification, or supplanting of decisions of guasi�uclicial agencies, including that of the Office of the President, on contested cases that have become final pursuant to law or to rules and regulations promulgated to implement the law. 14 10 Malayan Integrated Industries Corp. v. Court of Appeals, 213 SCRA640 [1992). 11Exteneive Enterprises Corp. v. Sarbro & Co., Inc., 17 SCRA41, 49-50 [1966). 12Pelaez v. Auditor General, 15 SCRA 569 [1965) . 13Larin v. Executive Secretary, 88 SCAD 212, 280 SCRA 713 [1997). "Camarines Norte Electric Cooperative, Inc. v. Torres, 91 SCAD 995 , 286 SCRA 666 [1998).

ADMINISTRATIVE·LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW

All actB of an executive or administrative office or agency, other than final decisions rendered in the exercise of its adjudicatory power in contested cases, are subject to the President's power of control, such as rules and regulations, interpretations or applications of the law. These may be reviewed, modified or set aside at any time, especially when they are later found to be erroneous, except that private rights which have become vested thererunder may not be unsettled or disturbed thereby. Thus, while the general rule is that­ an erroneous construction of a law by an administrative or executive officer whose duty is to enforce it may not give rise to a vested right, nor estop the government by such mistake, 16 the rule admits of exceptions, as when in reliance thereon in good faith and a person complies with what the law requires as construed by the administrative officer, his right which accrued therefrom may not be disturbed. The principles ofjustice and good faith di�tate and operate · ' to create such exceptions. 16 The general rule is that the President's power of control applies to acts of a subordinate official and not to the official who performs the acts. He may not, by his control power, suspend or remove the official without due process.of law, except those officials who serve at his pleasure, such as cabinet secretaries. In Ang-Angco v. Castillo, 17 th� Court ruled that the _p,ow'r of control ."merely.�pplies to the exercise of control over the ?Cti, of subordinate and_ not over the actor or agent himself of the act. It only means that tpe President may set aside the judgment or action taken by a subordinate in the performance of his duties." 18 It added, however, that the power of control may, to some extent, applies to the official himself, when it said: "There is some point in the argument that the power of control of the President may extend to the power to investigate, su�pend or remove officers -and employees who belong to the executive department if they are presidential appointees or do not belong to the classified· service for such can be justified under the principle that the power to remove is inherent in the power to appoint (Lacson v. 16United Christian Missionary Society v. Social Security Commission, 30 SCRA 983 [1969]; Legaspi v. Mathay, 68 SCRA 253 [1975]. 18Cf. ABS-CBN Broadcasting Corp. v. Co� o(T� Appeals, 108-SCRA 142 [ 1981]. 179 SCRA 619 [1963]. 18lbid., p. 629.

ADMINISTRATIVE LAW Power of Control, Supervision and Investigation A. President as Chief Executive and Administrative Officer

11

Romero, supra), but not with regard to those officers or employees who belong to the classified service for as to them that inherent power cannot be executed." 19 In Villaluz v. Zaldivar,20 the Supreme Court ruled that there "is merit in the claim that petitioner, being a presidential appointee, belongs to the non-competitive or unclassified service of the government' and as such he can only be investigated and removed from office after due hearing by the President of the Philippines under the principle that 'the power to remove is inherent in the power · · appoint.' 21 ,.Pending investigation of an administrative complaint against a presidential appointee who is a career officer, the President or a <;stbinet secretary acting on his behalf may, however, detai'I said officer to any other executive office. For if the President or a caJ:>ihet secretary can, by the power of control, nullify or set aside what a subordinate has done in the performance of his duties, he can order the detail of such subordinate to the Office of the President or to any executive department, so long as the detail does amount to an imposition of disciplinary action. 22 The President's power of control does not apply. to reviewing, modifying or setting aside a decision of a subordinate official in the exercise of his quasi-judicial power after the decision has become final pursuant to. law or the rules issued to implement it which prescribes the per.i.od of appeal. For public interest requires that proceedings already terminated should not be altered at every step, which include quasi-judicial proceedings before quasi-judicial agencies.23 In Camarines Norte Electric Cooperative, Inc. u. 1brres,24 the Supreme Court r�iterated the rule that a decision of a quasi-judicial agency which has become final can no longer be set aside or supplanted by the President in the {lxercise of his power of control.

/bid., p. 630. 15 SCRA 710 (1965]. 21 1bid., p. 713. 22 Cf. Borres v. Canonoy, 108 SCRA 190 [1981). 23Antique Sawmills, Inc. v. Zayco, 17 SCRA 316 (1966); Macailing v. Andr1td2.. 31 SCRA 126 (1970]. 2491 SCAD 995, 286 SCRA 666 [1998). 19

20

32

ADMINISTRATIVE LAW, LAW ON PUBLIC OJ:i'FICERS AND ELECTION LAW

The rule that thE;__ power of control ·of the President no longer applies to final decisions of quasi-judicial agencies extends to a decision ofthe Office ofthe President that has become final. In other words, the Office ofthe President can longer reconsider or modify its final decision, as it has lost jurisdiction, and its re-opening the case and modifying the final decision amount to gross disregard of the rules and basic legal precept that accord finality to administrative determinations.25

§3.28. President's power of supervision.

The constitutional provision that the "President shall have control ofail the executive departments, bureaus and offices" implies t�t he may not have the power of control over agencies which ar.e not categorized as executive departments, bureaus and offices, unless lhe law creating them provides that he shall have such power. In a9�enc� of such law; the President may have only the power of sµperv.ision, which is only !?Verseeing 9r the eower to see that the offieials concerned perform their duties, and ifthey la�r fail or �eglect to fulfill them, to take such action or steps as pr�scribed by law to make them perform their duties.26 The 1935 Constitution provides that the President shall "exercise general supervision over all local governments as may be provided by law." The 1987 Constitution reiterated this provision, but deleted the phrase "as may be provided by law." Construing th�. old provision on general supervision of the President over local government units, the Supreme Court, in Rodriguez u. Montinola, 27 ruled that "the power ofgeneral supervision granted the President, in the absence of any express provision oflaw, may not generally be interpreted to mean that ·he, or his alter ego, the Secretary of Finance, may direct the form and manner in which local officials shall perform or comply with their duties."28 In Taule u. Santos,29 the Supreme Court held that "Presidential power over local governments is limited by the Constitution to the exercise of_ general supervision 'to ensure that local affairs are administered acc�rding to law.' The general SUPElrvision is exercised

26 Fortich v. Corona, 289 SCRA 624 (1998]. Mondano v. Silvosa, 97 Phil. 143 [1955]. 2794 Phil. 964 [1964). 28 94 Phil. 973 [1954). 29200 SCRA 512 (1991]. 28

ADMINISTRATIVE LAW Power of Control, Supervision and Investigation A. President as Chief Executive and Administrative Officer

33

by the President through the Secretary of Local Government." "The fundamental law permits the Chief Executive to wield no mnre authority than that Qf checking whether· said local government or the officers thereof. perform their duties as provided by statutory enactments. Hence, the President cannot interfere with local governments so long as the same or its officers act within the scope of their authority. Supervisory power, when contracted with control, is the power of mere oversight over an inferior body; it does not include· any restraining authority over such body." "(A)lthough the Department (of Local Government) is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely 'monitoring compliance' by local government units of such issuances. To monitor means 'to watch, observe or check.' This is compatible with the power of supervision of the Secretary over local governments which as earlier discussed is limited to checking whether the local government unit concerned or the officers thereof perform their duties as provided by statutory enactments."30 §3.29. Control, supervision. and review by other executive officials.

The department secretary exercises control, supervision and review of acts done by subordinate officials and employees in his department. In turn, a head of a bureau or office exercises such powers over his subordinate personnel. The power of control, in that sense, means the power of an officer to alter, modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.31 Supervision meflftS-'Overseeing._or the power or authority of an officer to see that their subordinate otucers perform.their duties. If the latter fail or neglect to fulfill them, the former may take such action or steps as prescribed by law to make them perform their duties. Supervision is a lesser power than control. As thus defined, the power of supervision does not allow the superior to annul the acts o( the subordinate, for that comes under the power of control. What he can do only is to see to it that the subordinate performs his duties in accordanoe with law Review, on the other hand, is a reconsideration or re-examination for purposes of correction. The power of review is exercised to determine whether it is necessary to 30Ibid., pp. 521, 522, 523.

31 Borres

v. Cano�oy, 108 SCRA 181 [1981].

34

ADMINISTRATNE LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW

correct the acts of the subordinate. If such correction is necessary, it must be done by the authority exercising control over the subordinate or through the instrumentality of the courts of justice, unless the subordinate motu proprio corrects himself after his error is called to his attention by the official exercising the power of supervision and review over him. If at all, the power to review_ includes the pow�r to disapprove; but it does not carry the authority to substitute one's own preferences for that chosen by the subordinate in the exercise of its sound discretion. 32 Under the 1987 Administrative Code, supervision and control include only the authority to: (a) act directly whenever a specific function is entrusted by law or regulation to a subordinate; (b) direct the performance of duty; restrain the commissjon of acts; (c) review, approve, reverse or modify acts and decisions of subordinate officials or units; (d) determine priorities in the execution of plans and programs; and (e) prescribe standards, guidelines, plans and programs. Specifically, administrative supervision is limited to the authority of the department or its equivalent to: (1) generally oversee the operations of such agencies and insure that. they are managed effectively, efficiently and economically but without interference with day-to-day activities; (2) require the submission of reports and cause the conduct of management audit, performance evaluation and inspection to determine compliance with policies, standards and guidelines of the department; (3) take such action as may be necessary for the proper performance of offici�l functions, including rectification of violations, abuses and other forms of mal-administration; (4) review and pass upon budget proposals of such agencies but may not increase or add to them. 33 Where the law confers upon a department secretary supervision and control over subordinate officers, the department head can modify, nullify or set aside the decision of the subordina�e officer and can even directly exercise the powers granted the latter. 34 The department secretary's supervision and control over all bureaus and offices under his jurisdiction is limit�d to the ·bureaus and officers under him, does not extend to agencies attached to

E.�t

32 Phil. Gamefowl Commission v. IAC, 146 SCRA 294, 300 (1986]. 33Kilusang Bayan, etc. v. Dominguez, 205 SCRA 92 [1992]. s.sichangco v. Board of Commissioners of Immigration, 94 SCRA 61 (1979].

ADMINISTRATIVE LAW

Power of Control, Supervision and Investigation A. President as Chief Executive and Administrative Officer

the department,1,Attachment, for administrative purposes, "refers '1-.o the lateral relationship between the department or its equivaleat and· the attached age_ncy or corporation foIY,'purposes of policy Rnd program coordination. The coordination shall be accomplished by having the department represented in the governiJ;1g board of the attached agency or corporation, either as chairman or as a member, with or without voting rights, if this is permitted by the charter; having the attached ·corporation or agency comply with a system of periodic reporting which shall reflect the progress of programs and . projects; and having he department or its equivalent provide general policies through its ·representative in the board, which shall serve as the framework for the internal policies of the attached corporation or agency." An attached agency has a larger measure of independence from the department to which it is attached than one which is under the departmental supervision and control or 'administrative · supervision. The ·attachment ·is merely for policy and program ' coordination.35· · In Phil. Gamefoul Commission v. IAC,36 the issue raised is whether the Philippine Gamefoul Commission has power of control or only of supervision over local municipalities in the grant of cockfighting licenses. Section 2 of P .D. No. 1802 provides that the Commission shall have the power to "Issue licenses for the holding of international derbies" and to "promulgate rules and regulations relative to the holding, methods, procedures, operations and conduct of cockfighting in general as well as accreditation of cockpit person­ nel and association of cockpit owners, operators and lessees, to el­ evate the standard of cockfight." On the other hand, PD. No. 1802, as amended by P.D. No. 1802-A, provides that "City and Municipal Mayors with the concurrence of their respective 'Sanggunians' shall have the authority to license and regulate regular cockfighting pur­ suant to the rules and regulations promulgated by the Commission and subject to its review and supervision." The Commission set aside the license granted 1:,y the local government officials to an applicant and instead issued the license to another person . The Court ruled that the Commission has· no power of control.

35Corona v. CA, 214 SCRA 378 (1992]. _36 46 SCRA 294 [1986].

36

ADMINISTRA'l'IVE LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW

B. POWER OF INVESTIGATION §3.30. Generally. Investigatory or "ipq�isit�rial" powers have b�en granted by the Constitution or the ·legislature to executive or administrative officials or agencies for a nu.Jl).ber of purposes. ?he investigatory P?Wers of some agencies arei lim;tdrl to ��!,11Y information gathering, as. basis to recommend appl'E}f)riate action by other government agenci�s or to focus public opinion on matters of vital concern, like the ,Jftiman Rights Commission; other agencies are gr�ilted investigatory powers for prosecution purposes, such as the offices of public prosecutor and the .Qfri:budsman; still others exercise investigatory powers in aid in the exercise of other powers granted them, like the Securities and Exchange Commission, in the regulation of private corporations. The enabling act defines the extent of such investigatory powers. §3.31. Notice and hearing in investigation. One of the cardinal requirements of due process is notice and hearing. If the law, upon which the investigation is authorized, ·provides that the person investigated be given notice or accorded the opportunity to be heard, then such right cannot be ignored nor he be denied notice and hearing without violating his right to due process. However, if the law is silent on the matter, the question as to whether or not a person who may probably be affected or called to answer certain questions in the exercise of investigative powers of officials or administrative agencies is entitled to due process or to notice and· hearing depends upon the stage during which the investigation is conducted and the possible consequences to him of the outcome of such investigation. 37 • §3.32. Executive power of investigation.

The President has the power to order the conduct of investigation for a number of purposes, such as for all administrative functions, rule-making, �djudication, and for purpo.ses no more specific than illuminating obscure areas to find out what if any thing should be

37 8P.r.rP.tArv

of ,Justice v. Lantion. 322 SCRA 160 (2000).

ADMINISTRATIVE LAW Power of Control, Supervision and Investigation B. Power of lnvestigation

done. As chief administrative officer, the President may make inv�P-· tigations, not only in proceedings of a legislative or judicial nature, but also in proceedings whose sole purpose is to obtain information upon which future action of a disciplinary, administrative, prosecutory, legislative or judicial nature may be taken. 38 In Evangelista v. Jarencio,39 the Supreme Court expounded on the importance and usefulness of this i�v.estigatory power: "It has been essayed that the life blood of the admin­ istrative process is the flow of fact, the gathering, the or­ ganization and the analysis of evidence. Investigations are. useful for all administrative functions, not only for rule-making;acljudication, and licensing, but also for pros­ ecuting, for supervising and directing, and for purposes no more specific than illuminating obscure areas to find out what if anything should be done. An administrative agency may be authorized to make investigations, not only in proceedings of a legislative or judicial nature, but also in proceedings whose sole purpose is to obtain informa­ tion upon which future action of a legislative or judicial nature may be taken and may require the attendance of witnesses in proceedings of a purely investigatory nature. It may conduct general inquiries into evils calling for cor­ rection, and to report findings to appropriate bodies and make recommendations for action."40 The President's in.vestigatory power emanates from his power of supervisio� a'nd control over all executive de(i�rtments, b'ureaus, and offices; his power of supervision over local government units; and his power of appointment of presidential appointees, which are conferred upon him by the Constitution. His investigatory power also comes from powers delegated to him by the legislature. Thus, Sec. 64(c) of the Revised Administrative Code empowers the Presi­ dent "To order, when in his opinion the good of the public service so requires, an investigation of any action or the conduct of any person in the Government service, and . in . Evangelista v. Jarencio, 68 SCRA 39 (1975].

38

68 SCRA 99 (1975]. •068 SCRA 104 (1975).

39

ADMINISTRATIVE LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW

connection therewith to designate the official, committee, or person by whom such investigation shall be conducted." The above provision has not been repealed by the 1987 Admin­ istrative Code, as what it impliedly repealed or modified are "All laws, decrees, orders, rules and regulations or portions thereof, in­ consistent with this Code," and the above quoted Sec. 64(c) of the Revised Administrative Code is not inconsistent with any provision of the i987 Administrative Code.41 Section 64(c) has, in fact, been adopted as part thereof when in Sec. 20, Book III, it provides: "Sec. 20. Residual Powers. - Unless Congress pro­ vides otherwise, the President shall ex�rcise such other powers and functions vested in the President which are provided for.under the laws and which are npt speci{\caUy enumerated above, or -�Nhich are not delegated by the President in accordance with.law." The word "laws" in the above provision includes Sec. 64(c) of the Revised Administrative Code. Pursuant to Sec. 64(c) of the Revised Administrative Code, the President has the power to create a Presidential Agency to conduct investigations. Thus, he issued Executive Order.No. 4 dated January 7, 1966 creating the Presidential Agency on Reforms and Government Operations (PARGO) with the following functions and responsibilities: "b. 'lb investigate all activities invoiving or affecting immoral practices, graft and corruption, smuggling (phy­ sical or tecpnical), lawlessness, subversion, and all other activities which are prejudicial to the government and the public int�rests, and to submit proper recommendations to the President of the Philippines. "e. To investigate cases of graft and corruption and violations of Republic Act Nos. 1379 and 3019; and gather necessary evidence to establish prima facie, acts of graft and acquisition of unlawful amassed wealth. "h. To receive and evaluate, and to conduct fact­ finding investigations of sworn complaip.ts against the acts, conduct or behavior of any public official or employee and

'

1

Cf. Mecano v. COA, 216 SCRA 500 (1992).

ADMINISTRATIVE LAW

Power of Control, Supervision and Investigation

B., Power of Investigation

to file and prosecute the proper charges with the approp­ riate agency." The President empowered PARGO to summon witnesses '>y subpoena or subpoena duces tecum, administer oaths, take testi­ mony or evidence relevant to the investigation. In Evangelista v. Jarencio,42 the issue raised is whether the Agency, acting thru its officials, has the authority to issue subpoenas in its conduct of fact­ finding investigations not in connection with quasi-judicial or ad­ judicatipn functions. In upholding the power of the Agency to issue such subpoena, the Supreme Court said: "Rightly, administrative agencies may enforce sub­ poenas issued inlhe course of investigations( whether or not adjudication is involved, and whether or not probable cause is shown and even before the issuance of a complaint. It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully authorized purpose. The purpose of the subpoena is to discover evidence, not to prove a pending charge, but upon which to make one if the discovered evidence so justifies. Its obligation cannot rest on a trial of the value of testimony sought; it is enough that the proposed investigation be for a lawfully authorized purpose, an� that the proposed witness be claimed to have information that might shed some helpful light. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues on litigations it does not follow that an administrative agency charged wit� seeing that the laws are enforced may not have and exercise powers of original inquiry. The administrative agency has the power of inquisition which is not dependent upon a case or controversy in order to get evidence, bu_t can investigate merely on suspicion that the law is being violated or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, to, may take steps to inform itself as to whether there is probable violation of the law. In sum, it may be stated

4268 SCRA 99 [1975].

40

ADMINISTRATIVE LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW

that a subpoena meets the requirements for enforcement if the inquiry is: (1) within the authority of the agency; (2) the demand is not too indefinite; and (3) the information is reasonably relevant."43 In the exercise of his investigatory power,"the President may do so thru an executive officer, or create a body or committee to conduct the investigation, empower said officer, body or committee to issue subpoena and subpoena duces tecum for the purpose, and to make recommendations, on the basis of which he will make his appropriate action.44 §3.33. Investigatory powers, as incidents of main function.

Most administrative agencies which have been granted by Jaw with ex�tive, quasi-legislative and quas'i°-judicial power� have also investigatory powers in aid or as incidents of the exercise of such powers, as means to m �ke ·the performance of the latter effective. Inquisitive power, which is known as examining or investigatory power, is one of the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority. This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under it jurisdiction, or require disclosure of information by means of accounts, records, reports, testimony of witnesses, production of documents, or otherwise. 45 Power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial functions. Investigation is indispensable to prosecution. 46 In investigations by an investigating body or·committee, whose report may be the basis of an administrative ch�rge against public officer or employee, the latter is not entitled to be informed of the findings and recommendations of said investigating body or committee. He is only entitled to be informed of the. charges against him, to a hearing of said charges, to an opportunity to meet the

4368 SCRA 105-107.

44Larin v. Executive Secretary, BB SCAD 212, 280 SCRA 713 [1997). Secretary of Justice v. Lantion, 322 SCRA 160 (2000).

45

46lbid.

ADMINISTRATIVE LAW Power ofControl, Supervision and Investigation B. Power of Investigation

41

evidence against him, to present his own evidence47 and to be :far­ nished with copy of the administrative decision, so that he may, i-�;1e so desires, appeal therefrom to the Civil Service Commission within fifteen (15) day s from notice.48

§3.34. Investigatory power as main function.

An investigatory body with the sole power of investigation does not exerd.sejudicial functions and its power is limite_g. to jn�stigating the facts and making findings in respect there�o.'Th� tes� whether an administrative body is exercising judicial functions or merely investigatory functions is,:-.adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before 1t.�e qply purpose of investigation is to eyaluate evidence submitte·d before it based on facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment.49 T here are administrative agencies which are granted only· investigatory powers. Two may be cited as examples, namely, the Commission on Human Rights and the National Bureau of Investigation. T he Commission on Human Rights, created by the 1987 Constitution, has been granted the following powers and functions:50 1. To investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; 2. To adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court; · 3. To provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and to provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection;

47Ruiz v. Drilon, 209 SCRA 695 (1992]. 48 Pefianco v. Moral, 118 SCAD 391, 322 SCRA 439 (2000]. 49 Secretary of Justice v. Lantion, 322 SCRA 160 [2000]. 60Sec. 18, Art. XIII, Constitution.

42

ADMINISTRATIVE LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW

4. To exercise visitorial powers over jails, prisons, or deten­ tions fadlities; 5. To establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; 6. To recommend to the Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families; 7. To monitor the Philippine Government's compliance with international treaty obligations on human rights; 8. To grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted .by it or under its authority; 9. To request the assistance of any department, bureau, office, or agency in the performance of its functions; 10. To appoint its officers and employees in accordance with law; and 11. To perform such other duties and functions as may be provided by law. In Carino v. Commission on Human Rights, the question raised is whether the Commission has the power to adjudicate or exercise quasi-judicial power, as an incident of its power to investigate. The Supreme Court ruled that it has none and explained the meaning and scope of the power to investigate, thus: "T he Court declares the Commission on Human Rights to have no such power; and that it was not meant by the fundamental law to be another court.or quasi-judi­ cial agency in this country, or duplicate much less take over the functions of the latter. ,· "The most that may be conceded to the CommissiOf in the way of adjudicative power is that it may investigat�, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact-fipdjng is n�t adjudication, and

61204 SCRA 483 [1991].

ADMINISTRATIVE LAW Power of Control, Supervision and Investigation B. Power of Investigation

can'i,-ot 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. � be considered as 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 definitely, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the Commission does not have. XXX

x x x 7,b il_!_vestigate is not to adjudicate or �djudge. Whether hi'the popular or the technical sense, these terms have well-understood and quite distinct meanings.

!;"Investigate,' commonly understood, means to examine, explore, jnquire or delve or probe into, research on, study.. The dictionary definition of 'investigate' is 'to observe or study closely: inquire into sy stematically: 'to search or inquire into: x x x to subject to an official prove x x x: to conduct an official inquiry.' The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts established by inquiry. "The legal meaning of 'investigate' is essentially the same: '(t)o follow up step by step by patient inquiry or obser­ vation. To trlice or track; to search into; to examine and inquire into wi�h care and accuracy ; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry ;' to inquire; to make an investigation,' 'investigation' being in turn described as '(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2 Am Jur 2d Adm L Sec 257; x x x an inquiry, judicial or otherwise, for the discovery and collection offacts concern­ ing a certain:matter or matters. "'Adjudicate,' tommonly or popularly understood. means to adjudge, arbitrate, judge, decide, determine.

43

44

ADMINISTRATIVE LAW, LAW ON PUBLIC OFFICERS . AND ELECTION LAW

resolve, rule on, settle. The dictionary defines the term as 'to settle finally (the rights and duties of the p&rties to a court case) on the merits of issues raised: x x x to pass judgment on: settled judicially: x x x act as judge.' And 'adjudge' means 'to decide or rule upon as a judge or with judicial or quasi-judicial powers: x x x to award or grant judicially in a case or controversy x x x." "In the legal sense, 'adjudicate' means: "To settle in . the exercise of judicial authority.. To determine finally. Synony mous with adjudge in its strictest sense;' and 'adjudge' means: 'To pass on judicially, to decide, settled or decree, or to sentence or condemn. XXX Implies a judicial determination of a fact, and the entry of judgment.'"62 Thus, the power of the Commission on Human Rights is basically investigatory and informational in nature. It may refer the results of its investigation to the Department of Justice for possible prosecution of crimes involving violations of civil and political rights. As the scope of its investigatory power covers all forms of human rights violations involving civil and political rights, its investigations on these matters can also focus public opinion on them, which may hop·efully deter the commission of violations of human rights as against those inclined to do so. The National Bureau oflnvestigation is another administrative agency, whose power is basically investigatory and informational. Section 1 of R.A. No. 157, which created the Bureau of National Investigation, grants the agen<:Y the following powers: 1. To undertake investigation of crimes and other offenses against the laws of the Philippines, upon its initiative and as public . interest may require; 2. To render assistance, whenever properly requested in the investigation or detection of crimes and other offenses; 3. To act as .a national clearing house of criminal and other informations for th·� benefit and use of all prosecuting and law­ enforcement entities of the Philippines, identification records of all persons without criminal convictions, records of identifying marks, characteristics, a.nd ownership or possession of all firearms as well as of test bullets fired therefrom; 62204 SCRA 492-496.

ADMINISTRATIVE LAW

Power of Control, Supervision and Investigation B. Power of Investigation

4fi

4. To give technical aid to all prosecuting and fatw-enforcemeni, officers and entities. of the Government as well as the courts that may require its services; 5. To extend its services, whenever properly requested in the investigation of cases of administrative or civil nature in which the Government is interested; 6. To undertake the instruction imd training of representative number· .of city and municipal peace officers at the request of their respective superiors along effective methods of crime investigation and detection in order to insure greater efficiency in the discharge of their duties; 7. Tei establish and maintain an up-to-date scientific crime laboratory and to conduct researches in furtherance of scientific knowledge in criminal investigations; and 8. To perform such other related functions as the Secretary of J�stice may assign from time to time." The powers and functions of the NBI are not judicial or quasi­ judicial in nature. Its functions "are merely investigatory and informational in nature. It has no judicial or quasi-judicial powers and is incapable of granting any relief to a party. It cannot even determine probable.cause. It is an investigative agency whose findings are merely recommendatory. It undertakes investigation of crimes upon its own initiative and as public welfare may require. It renders assistance when requested in the investigation or detection of crimes." It is not an agency referred to under Circular No. 28-91, Revised Circular No. 28-91 and Administrative Circular No. 04-94, on forum shopping.53 However, on the basis of its investigation of a crime, the NBI may file the corresponding complaint with the Prosecutor's Office or with the Department of Justice for preliminary investigation and, if so warranted, for filing by the latter of the information in court. §3.35. Investigatory powers of the Ombudsman. The Office of the Ombudsman is a:creation of the Constitution. The Ombudsman is the protector of the people against abuses of government officials and employees. He has been granted vast powers, · which may be classified as follows: i_nvestigatory power; prosecutory 53Cabarrus, Jr. v. Bernas, 87 SCAD 239, 279 SCRA 388, 396 [199i}.

46

ADMINISTRATIVE LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW

power; public assistance functions; authority to inquire and obtain information; and function to adopt, institute and implement preventive measures. These powers are provided in the Constitution and in Republic Act No. 6770.54 The authority of the Ombudsman to investigate any illegal act or omission of an,Y. public official is broad enough to include the investigation of any crime committed by a public official. The law does not qualify.the .nature of the illegal act or omission of the public official or employee that the Ombudsman may 'investigate. It does not require that the act or omission be related to or be connected with or arise from, the performance of official duty . Since the law does not distinguish, neither should the court.65 · While the authority of the Ombudsman to investigate any act or omission of any public officer or employee, other than those specifically excepted under the Constitution and Republic Act No. 6770, which appears illegal, unjust, improper, or inefficient, is broad, the Constitution and the Ombudsman Act did not-intend to confer upon the Ombudsman veto or revisory power over an exercise of judgment or discretion by an agency or office upon whom the judg­ ment or discretion is lawfully vested. Thus, on the question of whether to accept or reject a bid and award contract vested by law in a gov­ ernment agency, which involves the exercise of dis.cretion, the Om­ budsman has exceeded his power by reviewing the award and grant­ ing it to another bidder.66 The Constitution requires that the Ombudsman and his Depu­ ties, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality there­ of, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. The Constitution has granted· the Office of the Ombudsman the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. 'Concerned Officials ofMWSS v. Vasquez,58 SCAD 409,240 SCRA502 [1995]. Deloso v. Domingo, 191 SCRA 545 (1990]. Concerned Officials ofMWSS v. Vasquez, 58 SCAD 409,240 SCRA502 [1995].

6

55 66

ADMINISTRATIVE LAW

Power of Control, Supervision and Investigation B. Power oflnvestigation

(2) Direct, upon compliant or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

(4) Direct the officer concerned, in any appropriate case, and subje<;:t to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if any necessary, pertinent records and documeQts. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or duties as may be provided by law. 67 Apart from the constitutional provisions, Republic Act No. 6770, otherwise known as "The Ombudsman Act of1989'' granted the Office of the Ombudsman additional powers, functions and duties, to wit: (1) Investigate and prosecute on its own or on. complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or. 57Sec. 13, Art. XI, Constitution.

48

ADMINISTRATIVE LAW, LAW ON PUBLIC OFFICERS AND ELECTION LAW

omission appears to be illegal, unjust, improper or ineffi­ cient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary . . jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases. (2) Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any sub­ division, agency or instrumentality thereof, as well as any government-owned or controlled corporations with original charter, to perform and expedite any act �r duty required by law, or to stop, prevent, and correct any abuse or impropriety in t!1e performance of duties.. (3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal of any officer without just cause to comply with an ord.er of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at faµlt or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer. (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it may provide in· its rules of procedure, to furnish it with cqpies of documents relating to contracts or transactfons entered into by his . office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of his responsibilities, and to examine, if necessary in the discharge of its responsibilities, pertinent records and documents. (6) Publicize matters covered by its investigation of the matters mentioned in paragraphs (1), (2) and (4)

ADMINISTRATIVE LAW

Power of Control, Supervision and Investigation . B. Power of Investigation

hereof, when circumstances so warrant and with due prudence: Provided, That the Ombudsman under its rules and regulations may determine what cases- may not be made public: Provided, further, That any publicity issued by the Ombudsman shall be balance, fair and true. (7) · Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government, and make recommendations for their elimination and the observance or"high standards of ethics and effi'ciency. · (8)

Administer oaths, issue subpoena and subpoena

duces ·tecum, and take testimony in any investigation or

inquiry, including the power to examine and have access to bank accounts and records.

(9) Puriish for contempt in accordance with the Rules of Coqrt and under the same procedure and with the same penalties provided therein. (10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance' of the powers, functions, and duties hereinafter provided. (11) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved herein. The Ombudsman shall give priority to complaints filed against high ranking government officials and/or those occupying supervisory positions, complaints involving _grave offenses as well as complaints involving large sums of money and/or properties."58

MSec. 15, R.A. No. 6770.

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