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Reviewer In
Administrative
Law By Atty.
Edwin Sandoval
Posted on March 22, 2012. Filed
under: 2012 Bar Review
Materials, Bar Review
Materials, Case Digests, Political &
International Law |
Tags: Administrative Law, Bar
Examination, Case
Digests, Constitutional Law, Law
Review, Political Law |

Describe the
Administrative Code of
1987.

Held:  The Code is a
general law and
“incorporates in a unified
document the major
structural, functional and
procedural principles of
governance (Third
Whereas Clause,
Administrative Code of
1987) and “embodies
changes in administrative
structures and procedures
designed to serve the
people.” (Fourth Whereas
Clause, Administrative
Code of 1987)  The Code
is divided into seven (7)
books.  These books
contain provisions on the
organization, powers and
general administration of
departments, bureaus and
offices under the executive
branch, the organization
and functions of the
Constitutional
Commissions and other
constitutional bodies, the
rules on the national
government budget, as
well as guidelines for the
exercise by administrative
agencies of quasi-
legislative and quasi-
judicial powers.  The Code
covers both the internal
administration, i.e., intern
al organization, personnel
and recruitment,
supervision and discipline,
and the effects of the
functions performed by
administrative officials on
private individuals or
parties outside
government.  (Ople v.
Torres, G.R. No. 127685,
July 23, 1998 [Puno]) 

What is Administrative
Power?

Held:  Administrative
power is concerned with
the work of applying
policies and enforcing
orders as determined by
proper governmental
organs.  It enables the
President to fix a uniform
standard of administrative
efficiency and check the
official conduct of his
agents.  To this end, he
can issue administrative
orders, rules and
regulations.  (Ople v.
Torres, G.R. No. 127685,
July 23, 1998 [Puno]) 

What is an Administrative
Order?

Held:  An administrative
order is an ordinance
issued by the President
which relates to specific
aspects in the
administrative operation of
government.  It must be in
harmony with the law and
should be for the sole
purpose of implementing
the law and carrying out
the legislative
policy.  (Ople v. Torres,
G.R. No. 127685, July 23,
1998 [Puno]) 

What is the Government of

the Republic of the
Philippines?

Ans.:  The Government of
the Republic of the
Philippines refers to the
corporate governmental
entity through which the
functions of the
government are exercised
throughout the Philippines,
including, save as the
contrary appears from the
context, the various arms
through which political
authority is made effective
in the Philippines, whether
pertaining to the
autonomous regions, the
provincial, city, municipal
or barangay subdivisions
or other forms of local
government.  (Sec. 2[1],
Introductory Provisions,
Executive Order No. 292) 

 What is an Agency of the

Government? 

Ans.:  Agency of the
Government refers to any
of the various units of the
Government, including a
department, bureau,
office, instrumentality, or
government-owned or
controlled corporation, or
a local government or a
distinct unit therein. (Sec.
2[4], Introductory
Provisions, Executive
Order No. 292) 

 What is a Department? 

Ans.:  Department refers
to an executive
department created by
law.  For purposes of Book
IV, this shall include any
instrumentality, as herein
defined, having or
assigned the rank of a
department, regardless of
its name or
designation.  (Sec. 2[7],
Introductory Provisions,
Executive Order No. 292) 
What is a Bureau? 

Ans.:  Bureau refers to
any principal subdivision
or unit of any
department.  For purposes
of Book IV, this shall
include any principal
subdivision or unit of any
instrumentality given or
assigned the rank of a
bureau, regardless of
actual name or
designation, as in the case
of department-wide
regional offices.  (Sec.
2[8], Introductory
Provisions, Executive
Order No. 292) 

What is an Office?

Ans.:  Office refers, within
the framework of
governmental
organization, to any major
functional unit of a
department or
bureau including regional
offices.  It may also refer
to any position held or
occupied by individual
persons, whose functions
are defined by law or
regulation.  (Sec. 2[9],
Introductory Provisions,
Executive Order No. 292)

What is a Government
Instrumentality?  What are
included in the term
Government
Instrumentality?

Ans.:  A government
instrumentality refers to
any agency of the national
government, not
integrated within the
department framework,
vested with special
functions or jurisdiction by
law, endowed with some if
not all corporate powers,
administering special
funds, enjoying
operational autonomy,
usually through a charter. 
The term includes
regulatory agencies,
chartered institutions and
government-owned or
controlled
corporations.  (Sec. 2[10],
Introductory Provisions,
Executive Order No. 292)

What is a Regulatory
Agency?

Ans.:  A regulatory
agency refers to any
agency expressly vested
with jurisdiction to
regulate, administer or
adjudicate matters
affecting substantial rights
and interest of private
persons, the principal
powers of which are
exercised by a collective
body, such as a
commission, board or
council.  (Sec. 2[11],
Introductory Provisions,
Executive Order No. 292)

What is a Chartered
Institution? 

Ans.:  A chartered
institution refers to any
agency organized or
operating under a special
charter, and vested by law
with functions relating to
specific constitutional
policies or objectives.  This
term includes state
universities and colleges
and the monetary
authority of the
State.  (Section 2[12],
Introductory Provisions,
Executive Order No. 292) 

What is a Government-
Owned or Controlled
Corporation? 

Ans.:  Government-owned
or controlled
corporation refers to any
agency organized as a
stock or non-stock
corporation, vested with
functions relating to public
needs whether
governmental or
proprietary in nature, and
owned by the Government
directly or through its
instrumentalities either
wholly, or, where
applicable as in the case of
stock corporations, to the
extent of at least fifty-one
(51) per cent of its capital
stock; x x x (Sec. 2[13],
Introductory Provisions,
Executive Order No. 292) 

When is a Government-
Owned or Controlled
Corporation deemed to be
performing proprietary
function?  When is it
deemed to be performing
governmental function?

Held:  Government-owned
or controlled corporations
may perform
governmental or
proprietary functions or
both, depending on the
purpose for which they
have been created.  If the
purpose is to obtain
special corporate benefits
or earn pecuniary profit,
the function is
proprietary.  If it is in the
interest of health, safety
and for the advancement
of public good and welfare,
affecting the public in
general, the function is
governmental.  Powers
classified as “proprietary”
are those intended for
private advantage and
benefit.  (Blaquera v.
Alcala, 295 SCRA 366,
425, Sept. 11, 1998, En
Banc [Purisima])  

The Philippine National

Red Cross (PNRC) is a
government-owned and
controlled corporation with
an original charter under
R.A. No. 95, as amended. 
Its charter, however, was
amended to vest in it the
authority to secure loans,
be exempted from
payment of all duties,
taxes, fees and other
charges, etc.  With the
amendnt of its charter,
has it been “impliedly
converted to a private
corporation”? 

Held:  The test to
determine whether a
corporation is government
owned or controlled, or
private in nature is
simple.  Is it created by its
own charter for the
exercise of a public
function, or by
incorporation under the
general corporation law? 
Those with special charters
are government
corporations subject to its
provisions, and its
employees are under the
jurisdiction of the Civil
Service Commission.  The
PNRC was not “impliedly
converted to a private
corporation” simply
because its charter was
amended to vest in it the
authority to secure loans,
be exempted from
payment of all duties,
taxes, fees and other
charges,
etc.  (Camporedondo v.
NLRC, G.R. No. 129049,
Aug. 6, 1999, 1st Div.
[Pardo])

  When may the

Government not validly
invoke the rule that
prescription does not run
against the State? 
Illustrative Case. 

Held:  While it is true that

prescription does not run
against the State, the
same may not be invoked
by the government in this
case since it is no longer
interested in the subject
matter.  While Camp
Wallace may have
belonged to the
government at the time
Rafael Galvez’s title was
ordered cancelled in Land
Registration Case No. N-
361, the same no longer
holds true today.

Republic Act No. 7227,

otherwise known as the
Base Conversion and
Development Act of 1992,
created the Bases
Conversion and
Development Authority.  X
xx

With the transfer of Camp

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

Nonetheless, it has been

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

We, however, must not

lose sight of the fact that
the BCDA is an entity
invested with a personality
separate and distinct from
the government.  X x x

It may not be amiss to

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

Having the capacity to sue

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

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

It can be said that in suing

for the recovery of the
rentals, the Republic of the
Philippines, acted as
principal of the Philippine
Ports Authority, directly
exercising the commission
it had earlier conferred on
the latter as its agent.  We
may presume that, by
doing so, the Republic of
the Philippines did not
intend to retain the said
rentals for its own use,
considering that by its
voluntary act it had
transferred the land in
question to the Philippine
Ports Authority effective
July 11, 1974.  The
Republic of the Philippines
had simply sought to
assist, not supplant, the
Philippine Ports Authority,
whose title to the disputed
property it continues to
recognize.  We may expect
the that the said rentals,
once collected by the
Republic of the Philippines,
shall be turned over by it
to the Philippine Ports
Authority conformably to
the purposes of P.D. No.
857.

E.B. Marcha is, however,

not on all fours with the
case at bar.  In the
former, the Court
considered the Republic a
proper party to sue since
the claims of the Republic
and the Philippine Ports
Authority against the
petitioner therein were the
same.  To dismiss the
complaint in E.B.
Marcha would have
brought needless delay in
the settlement of the
matter since the PPA
would have to refile the
case on the same claim
already litigated upon. 
Such is not the case here
since to allow the
government to sue herein
enables it to raise the
issue of imprescriptibility,
a claim which is not
available to the BCDA. 
The rule that prescription
does not run against the
State does not apply to
corporations or artificial
bodies created by the
State for special purposes,
it being said that when the
title of the Republic has
been divested, its
grantees, although
artificial bodies of its own
creation, are in the same
category as ordinary
persons.  By raising the
claim of imprescriptibility,
a claim which cannot be
raised by the BCDA, the
Government not only
assists the BCDA, as it did
in E.B. Marcha, it even
supplants the latter, a
course of action proscribed
by said case.

Moreover, to recognize the

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

It should also be noted

that petitioner is
unquestionably a buyer in
good faith and for value,
having acquired the
property in 1963, or 5
years after the issuance of
the original certificate of
title, as a third transferee. 
If only not to do violence
and to give some measure
of respect to the Torrens
System, petitioner must
be afforded some measure
of protection.  (Shipside
Incorporated v. Court of
Appeals, 352 SCRA 334,
Feb. 20, 2001, 3rd Div.
[Melo])

   Discuss the nature and

functions of the National
Telecommunications
Commission (NTC), and
analyze its powers and
authority as well as the
laws, rules and regulations
that govern its existence
and operations.

Held:  The NTC was

created pursuant to
Executive Order No. 546 x
x x.  It assumed the
functions formerly
assigned to the Board of
Communications and the
Communications Control
Bureau, which were both
abolished under the said
Executive Order. 
Previously, the NTC’s
function were merely
those of the defunct Public
Service Commission
(PSC), created under
Commonwealth Act No.
146, as amended,
otherwise known as the
Public Service Act,
considering that the Board
of Communications was
the successor-in-interest
of the PSC.  Under
Executive Order No. 125-
A, issued in April 1987, the
NTC became an attached
agency of the Department
of Transportation and
Communications.

In the regulatory
communications industry,
the NTC has the sole
authority to issue
Certificates of Public
Convenience and Necessity
(CPCN) for the installation,
operation, and
maintenance of
communications facilities
and services, radio
communications systems,
telephone and telegraph
systems.  Such power
includes the authority to
determine the areas of
operations of applicants
for telecommunications
services.  Specifically,
Section 16 of the Public
Service Act authorizes the
then PSC, upon notice and
hearing, to issue
Certificates of Public
Convenience for the
operation of public
services within the
Philippines “whenever the
Commission finds that the
operation of the public
service proposed and the
authorization to do
business will promote the
public interests in a proper
and suitable
manner.” (Commonwealth
Act No. 146, Section
16[a])  The procedure
governing the issuance of
such authorizations is set
forth in Section 29 of the
said Act x x x. (Republic v.
Express
Telecommunication Co.,
Inc., 373 SCRA 316, Jan.
15, 2002, 1st Div. [Ynares-
Santiago])

 Is the filing of the

administrative rules and
regulations with the UP
Law Center the operative
act that gives the rules
force and effect?

Held:  In granting
Bayantel the provisional
authority to operate a
CMTS, the NTC applied
Rule 15, Section 3 of its
1978 Rules of Practice and
Procedure, which provides:

Sec. 3.  Provisional Relief.

– Upon the filing of an
application, complaint or
petition or at any stage
thereafter, the Board may
grant on motion of the
pleader or on its own
initiative, the relief prayed
for, based on the pleading,
together with the affidavits
and supporting documents
attached thereto, without
prejudice to a final
decision after completion
of the hearing which shall
be called within thirty (30)
days from grant of
authority asked for.

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

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

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

Filing. – (1) Every agency

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

(2) The records officer of

the agency, or his
equivalent functionary,
shall carry out the
requirements of this
section under pain of
disciplinary action.

(3) A permanent register

of all rules shall be kept by
the issuing agency and
shall be open to public
inspection.

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

This does not imply,

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

“Article 2.  Laws shall take

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

The fact that the

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

This Court, in Tanada v.

Tuvera stated, thus:

“We hold therefore that all

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

Covered by this rule are

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

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

We agree that the

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

The Administrative Order

under consideration is one
of those issuances which
should be published for its
effectivity, since its
purpose is to enforce and
implement an existing law
pursuant to a valid
delegation, i.e., P.D. 1071,
in relation to LOI 444 and
EO 133.

Thus, publication in the

Official Gazette or a
newspaper of general
circulation is a
condition sine qua
non before statutes, rules
or regulations can take
effect.  This is explicit from
Executive Order No. 200,
which repealed Article 2 of
the Civil Code, and which
states that:

Laws shall take effect after

fifteen days following the
completion of their
publication either in the
Official Gazette or in a
newspaper of general
circulation in the
Philippines, unless it is
otherwise provided (E.O.
200, Section 1).

The Rules of Practice and

Procedure of the NTC,
which implements Section
29 of the Public Service
Act, fall squarely within
the scope of these laws, as
explicitly mentioned in the
case of Tanada v. Tuvera.

Our pronouncement
in Tanada v. Tuvera is
clear and categorical. 
Administrative rules and
regulations must be
published if their purpose
is to enforce or implement
existing law pursuant to a
valid delegation.  The only
exception are
interpretative regulations,
those merely internal in
nature, or those so-called
letters of instructions
issued by administrative
superiors concerning the
rules and guidelines to be
followed by their
subordinates in the
performance of their
duties (PHILSA
International Placement &
Services Corp. v.
Secretary of Labor, G.R.
No. 103144, April 4, 2001,
356 SCRA 174).

Hence, the 1993 Revised

Rules should be published
in the Official Gazette or in
a newspaper of general
circulation before it can
take effect.  Even the
1993 Revised Rules itself
mandates that said Rules
shall take effect only after
their publication in a
newspaper of general
circulation (Section 20
thereof).  In the absence
of such publication,
therefore, it is the 1978
Rules that
govern.  (Republic v.
Express
Telecommunication Co.,
Inc., 373 SCRA 316, Jan.
15, 2002, 1st Div. [Ynares-
Santiago])

 May a person be held

liable for violation of an
administrative regulation
which was not published?

Held:  Petitioner insists,

however, that it cannot be
held liable for illegal
exaction as POEA
Memorandum Circular No.
II, Series of 1983, which
enumerated the allowable
fees which may be
collected from applicants,
is void for lack of
publication.

There is merit in the

argument.

In Tanada v. Tuvera, the

Court held, as follows:

“We hold therefore that all

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

Covered by this rule are

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

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

Applying this doctrine, we

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

POEA Memorandum
Circular No. 2, Series of
1983 must likewise be
declared ineffective as the
same was never published
or filed with the National
Administrative Register.
POEA Memorandum
Circular No. 2, Series of
1983 provides for the
applicable schedule of
placement and
documentation fees for
private employment
agencies or authority
holders.  Under the said
Order, the maximum
amount which may be
collected from prospective
Filipino overseas workers
is P2,500.00.  The said
circular was apparently
issued in compliance with
the provisions of Article 32
of the Labor Code x x x.

It is thus clear that the

administrative circular
under consideration is one
of those issuances which
should be published for its
effectivity, since its
purpose is to enforce and
implement an existing law
pursuant to a valid
delegation.  Considering
that POEA Administrative
Circular No. 2, Series of
1983 has not as yet been
published or filed with the
National Administrative
Register, the same is
ineffective and may not be
enforced.  (Philsa
International Placement
and Services Corporation
v. Secretary of Labor and
Employment, 356 SCRA
174, April 4, 2001,
3rd Div., [Gonzaga-Reyes])

Does the publication

requirement apply as well
to administrative
regulations addressed only
to a specific group and not
to the general public?

Held:  The Office of the

Solicitor General likewise
argues that the questioned
administrative circular is
not among those requiring
publication contemplated
by Tanada v. Tuvera as it
is addressed only to a
specific group of persons
and not to the general
public.

Again, there is no merit in

this argument.

The fact that the said

circular is addressed only
to a specified group,
namely private
employment agencies or
authority holders, does not
take it away from the
ambit of our ruling
in Tanada v. Tuvera.  In
the case of Phil.
Association of Service
Exporters v. Torres, the
administrative circulars
questioned therein were
addressed to an even
smaller group, namely
Philippine and Hong Kong
agencies engaged in the
recruitment of workers for
Hong Kong, and still the
Court ruled therein that,
for lack of proper
publication, the said
circulars may not be
enforced or implemented.

Our pronouncement
in Tanada v. Tuvera is
clear and categorical. 
Administrative rules and
regulations must be
published if their purpose
is to enforce or implement
existing law pursuant to a
valid delegation.  The only
exceptions are
interpretative regulations,
those merely internal in
nature, or those so-called
letters of instructions
issued by administrative
superiors concerning the
rules and guidelines to be
followed by their
subordinates in the
performance of their
duties.  Administrative
Circular No. 2, Series of
1983 has not been shown
to fall under any of these
exceptions.

In this regard, the Solicitor

General’s reliance on the
case of Yaokasin v.
Commissioner of
Customs is misplaced.  In
the said case, the validity
of certain Customs
Memorandum Orders were
upheld despite their lack of
publication as they were
addressed to a particular
class of persons, the
customs collectors, who
were also the subordinates
of the Commissioner of the
Bureau of Customs.  As
such, the said
Memorandum Orders
clearly fall under one of
the exceptions to the
publication requirement,
namely those dealing with
instructions from an
administrative superior to
a subordinate regarding
the performance of their
duties, a circumstance
which does not obtain in
the case at bench. X x x

To summarize, petitioner
should be absolved from
the three (3) counts of
exaction as POEA
Administrative Circular No.
2, Series of 1983 could not
be the basis of
administrative sanctions
against petitioner for lack
of publication.  (Philsa
International Placement
and Services Corporation
v. Secretary of Labor and
Employment, 356 SCRA
174, April 4, 2001,
3rd Div., [Gonzaga-Reyes])

May a successful bidder

compel a government
agency to formalize a
contract with it
notwithstanding that its
bid exceeds the amount
appropriated by Congress
for the project?

Held:  Enshrined in the
1987 Philippine
Constitution is the
mandate that “no money
shall be paid out of the
Treasury except in
pursuance of an
appropriation made by
law.” (Sec. 29[1], Article
VI of the 1987
Constitution)  Thus, in the
execution of government
contracts, the precise
import of this
constitutional restriction is
to require the various
agencies to limit their
expenditures within the
appropriations made by
law for each fiscal year.

It is quite evident from the

tenor of the language of
the law that the existence
of appropriations and the
availability of funds are
indispensable pre-
requisites to or
conditions sine qua non for
the execution of
government contracts. 
The obvious intent is to
impose such conditions
as a priori requisites to the
validity of the proposed
contract.  Using this as our
premise, we cannot accede
to PHOTOKINA’s
contention that there is
already a perfected
contract.  While we held
in Metropolitan Manila
Development Authority v.
Jancom Environmental
Corporation that “the
effect of an unqualified
acceptance of the offer or
proposal of the bidder is to
perfect a contract, upon
notice of the award to the
bidder,” however, such
statement would be
inconsequential in a
government where the
acceptance referred to is
yet to meet certain
conditions.  To hold
otherwise is to allow a
public officer to execute a
binding contract that
would obligate the
government in an amount
in excess of the
appropriations for the
purpose for which the
contract was attempted to
be made.  This is a
dangerous precedent.

In the case at bar, there

seems to be an oversight
of the legal requirements
as early as the bidding
stage.  The first step of a
Bids and Awards
Committee (BAC) is to
determine whether the
bids comply with the
requirements.  The BAC
shall rate a bid “passed”
only if it complies with all
the requirements and the
submitted price does not
exceed the approved
budget for the
contract.”(Implementing
Rules and Regulations
[IRR] for Executive Order
No. 262, supra.) 

                Extant on the
record is the fact that the
VRIS Project was awarded
to PHOTOKINA on account
of its bid in the amount of
P6.588 Billion Pesos. 
However, under Republic
Act No. 8760 (General
Appropriations Act, FY
2000, p. 1018, supra.),the
only fund appropriated for
the project was P1 Billion
Pesos and under the
Certification of Available
Funds (CAF) only P1.2
Billion Pesos was
available.  Clearly, the
amount appropriated is
insufficient to cover the
cost of the entire VRIS
Project.  There is no way
that the COMELEC could
enter into a contract with
PHOTOKINA whose
accepted bid was way
beyond the amount
appropriated by law for
the project.  This being the
case, the BAC should have
rejected the bid for being
excessive or should have
withdrawn the Notice of
Award on the ground that
in the eyes of the law, the
same is null and void.

Even the draft contract

submitted by
Commissioner Sadain that
provides for a contract
price in the amount of
P1.2 Billion Pesos is
unacceptable.  x x x While
the contract price under
the draft contract is only
P1.2 Billion and, thus,
within the certified
available funds, the same
covers only Phase I of the
VRIS Project, i.e., the
issuance of identification
cards for only 1,000,000
voters in specified
areas.  In effect, the
implementation of the
VRIS Project will be
“segmented” or “chopped”
into several phases.  Not
only is such arrangement
disallowed by our
budgetary laws and
practices, it is also
disadvantageous to the
COMELEC because of the
uncertainty that will loom
over its modernization
project for an indefinite
period of time.  Should
Congress fail to
appropriate the amount
necessary for the
completion of the entire
project, what good will the
accomplished Phase I
serve?  As expected, the
project failed “to sell” with
the Department of Budget
and Management.  Thus,
Secretary Benjamin
Diokno, per his letter of
December 1, 2000,
declined the COMELEC’s
request for the issuance of
the Notice of Cash
Availability (NCA) and a
multi-year obligatory
authority to assume
payment of the total VRIS
Project for lack of legal
basis.  Corollarily, under
Section 33 of R.A. No.
8760, no agency shall
enter into a multi-year
contract without a multi-
year obligational authority,
thus:

“SECTION 33.  Contracting
Multi-Year Projects. –  In
the implementation of
multi-year projects, no
agency shall enter into a
multi-year contract
without a multi-year
Obligational Authority
issued by the Department
of Budget and
Management for the
purpose.  Notwithstanding
the issuance of the multi-
year Obligational
Authority, the obligation to
be incurred in any given
calendar year, shall in no
case exceed the amount
programmed for
implementation during
said calendar year.”

Petitioners are justified in

refusing to formalize the
contract with
PHOTOKINA.  Prudence
dictated them not to enter
into a contract not backed
up by sufficient
appropriation and available
funds.  Definitely, to act
otherwise would be a futile
exercise for the contract
would inevitably suffer the
vice of nullity.  x x x

Verily, the contract, as

expressly declared by law,
is inexistent and void ab
initio (Article 1409 of the
Civil Code of the
Philippines).  This is to say
that the proposed contract
is without force and effect
from the very beginning or
from its incipiency, as if it
had never been entered
into, and hence, cannot be
validated either by lapse of
time or ratification.

In fine, we rule that

PHOTOKINA, though the
winning bidder, cannot
compel the COMELEC to
formalize the contract. 
Since PHOTOKINA’s bid is
beyond the amount
appropriated by Congress
for the VRIS Project, the
proposed contract is not
binding upon the COMELEC
and is considered void x x
x.  (Commission on
Elections v. Judge Ma.
Luisa Quijano-Padilla, G.R.
No. 151992, Sept. 18,
2002, En Banc [Sandoval-
Gutierrez])

 What is the remedy

available to a party who
contracts with the
government contrary to
the requirements of the
law and, therefore, void ab
initio?

Held:  Of course, we are

not saying that the party
who contracts with the
government has no other
recourse in law.  The law
itself affords him the
remedy.  Section 48 of
E.O. No. 292 explicitly
provides that any contract
entered into contrary to
the above-mentioned
requirements shall be
void, and “the officers
entering into the contract
shall be liable to the
Government or other
contracting party for any
consequent damage to the
same as if the transaction
had been wholly between
private parties.”  So when
the contracting officer
transcends his lawful and
legitimate powers by
acting in excess of or
beyond the limits of his
contracting authority, the
Government is not bound
under the contract.  It
would be as if the contract
in such case were a
private one, whereupon,
he binds himself, and thus,
assumes personal liability
thereunder. Otherwise
stated, the proposed
contract is unenforceable
as to the Government.

While this is not the

proceeding to determine
where the culpability lies,
however, the
constitutional mandate
cited above constrains us
to remind all public officers
that public office is a
public trust and all public
officers must at all times
be accountable to the
people.  The authority of
public officers to enter into
government contracts is
circumscribed with a
heavy burden of
responsibility.  In the
exercise of their
contracting prerogative,
they should be the first
judges of the legality,
propriety and wisdom of
the contract they entered
into.  They must exercise a
high degree of caution so
that the Government may
not be the victim of ill-
advised or improvident
action.  (Commission on
Elections v. Judge Ma.
Luisa Quijano-Padilla,
G.R. No. 151992, Sept.
18, 2002, En Banc
[Sandoval-Gutierrez]) 
Does the Commission on
Human Rights have the
power to adjudicate?

Held:  In its Order x x x

denying petitioners’
motion to dismiss, the
CHR theorizes that the
intention of the members
of the Constitutional
Commission is to make
CHR a quasi-judicial body. 
This view, however, has
not heretofore been
shared by this Court. 
In Carino v. Commission
on Human Rights, the
Court x x x has observed
that it is “only the first of
the enumerated powers
and functions that bears
any resemblance to
adjudication of
adjudgment,” but that
resemblance can in no way
be synonymous to the
adjudicatory power itself. 
The Court explained:

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

“The most that may be

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

 Does the Commission on

Human Rights have
jurisdiction to issue TRO or
writ of preliminary
injunction?

Held:  In Export
Processing Zone Authority
v. Commission on Human
Rights, the Court x x x
explained:

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

“Evidently, the ‘preventive

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

The Commission does

have legal standing to
indorse, for appropriate
action, its findings and
recommendations to any
appropriate agency of
government.  (Simon, Jr.
v. Commission on
Human Rights, 229
SCRA 117, 134-135,
Jan. 5, 1994, En Banc
[Vitug, J.])

Does the petition for

annulment of proclamation
of a candidate merely
involve the exercise by the
COMELEC of its
administrative power to
review, revise and reverse
the actions of the board of
canvassers and, therefore,
justifies non-observance of
procedural due process, or
does it involve the
exercise of the COMELEC’s
quasi-judicial function?  

Held:  Taking cognizance
of private respondent’s
petitions for annulment of
petitioner’s proclamation,
COMELEC was not merely
performing an
administrative function. 
The administrative powers
of the COMELEC include
the power to determine
the number and location of
polling places, appoint
election officials and
inspectors, conduct
registration of voters,
deputize law enforcement
agencies and
governmental
instrumentalities to ensure
free, orderly, honest,
peaceful and credible
elections, register political
parties, organizations or
coalition, accredit citizen’s
arms of the Commission,
prosecute election
offenses, and recommend
to the President the
removal of or imposition of
any other disciplinary
action upon any officer or
employee it has deputized
for violation or disregard
of its directive, order or
decision.  In addition, the
Commission also has
direct control and
supervision over all
personnel involved in the
conduct of election. 
However, the resolution of
the adverse claims of
private respondent and
petitioner as regards the
existence of a manifest
error in the questioned
certificate of canvass
requires the COMELEC to
act as an arbiter.  It
behooves the Commission
to hear both parties to
determine the veracity of
their allegations and to
decide whether the alleged
error is a manifest error. 
Hence, the resolution of
this issue calls for the
exercise by the COMELEC
of its quasi-judicial power. 
It has been said that
where a power rests in
judgment or discretion, so
that it is of judicial nature
or character, but does not
involve the exercise of
functions of a judge, or is
conferred upon an officer
other than a judicial
officer, it is deemed quasi-
judicial.  The COMELEC
therefore, acting as quasi-
judicial tribunal, cannot
ignore the requirements of
procedural due process in
resolving the petitions filed
by private
respondent. (Federico S.
Sandoval v. COMELEC,
G.R. No. 133842, Jan. 26,
2000 [Puno])

Discuss the contempt

power of the Commission
on Human Rights (CHR). 
When may it be validly
exercised.

Held:  On its contempt

powers, the CHR is
constitutionally authorized
to “adopt its operational
guidelines and rules of
procedure, and cite for
contempt for violations
thereof in accordance with
the Rules of Court.” 
Accordingly, the CHR acted
within its authority in
providing in its revised
rules, its power “to cite or
hold any person in direct
or indirect contempt, and
to impose the appropriate
penalties in accordance
with the procedure and
sanctions provided for in
the Rules of Court.” That
power to cite for
contempt, however,
should be understood to
apply only to violations of
its adopted operational
guidelines and rules of
procedure essential to
carry out its investigatorial
powers.  To exemplify, the
power to cite for contempt
could be exercised against
persons who refuse to
cooperate with the said
body, or who unduly
withhold relevant
information, or who
decline to honor summons,
and the like, in pursuing
its investigative work.  The
“order to desist” (a
semantic interplay for a
restraining order) in the
instance before us,
however, is not
investigatorial in character
but prescinds from an
adjudicative power that it
does not possess.  x x
x (Simon, Jr. v.
Commission on Human
Rights, 229 SCRA 117,
134, Jan. 5, 1994, En Banc
[Vitug, J.])

 Discuss the Doctrine of

Primary Jurisdiction (or
Prior Resort). 

Held:  Courts cannot and

will not resolve a
controversy involving a
question which is within
the jurisdiction of an
administrative tribunal,
especially where the
question demands the
exercise of sound
administrative discretion
requiring the special
knowledge, experience
and services of the
administrative tribunal to
determine technical and
intricate matters of fact. 

In recent years, it has

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

In cases where the

doctrine of primary
jurisdiction is clearly
applicable, the court
cannot arrogate unto itself
the authority to resolve a
controversy, the
jurisdiction over which is
lodged with an
administrative body of
special
competence.  (Villaflor v.
CA, 280 SCRA 297, Oct. 9,
1992, 3rd Div.
[Panganiban]) 

Discuss the Doctrine of

Exhaustion of
Administrative
Remedies.  What are
the exceptions thereto? 

Held:  1. Before a party is

allowed to seek the
intervention of the court, it
is a pre-condition that he
should have availed of all
the means of
administrative processes
afforded him.  Hence, if a
remedy within the
administrative machinery
can still be resorted to by
giving the administrative
officer concerned every
opportunity to decide on a
matter that comes within
his jurisdiction then such
remedy should be
exhausted first before the
court’s judicial power can
be sought.  The premature
invocation of court’s
jurisdiction is fatal to one’s
cause of action. 
Accordingly, absent any
finding of waiver or
estoppel the case is
susceptible of dismissal for
lack of cause of action. 
This doctrine of exhaustion
of administrative remedies
was not without its
practical and legal
reasons, for one thing,
availment of
administrative remedy
entails lesser expenses
and provides for a
speedier disposition of
controversies.  It is no less
true to state that the
courts of justice for
reasons of comity and
convenience will shy away
from a dispute until the
system of administrative
redress has been
completed and complied
with so as to give the
administrative agency
concerned every
opportunity to correct its
error and to dispose of the
case.

This doctrine is
disregarded:

when there is a violation of

due process;

when the issue involved is

purely a legal question;

when the administrative

action is patently illegal
amounting to lack or
excess of jurisdiction;

when there is estoppel on

the part of the
administrative agency
concerned;

when there is irreparable

injury;

when the respondent is a

department secretary
whose acts as an alter
ego of the President bears
the implied and assumed
approval of the latter;

when to require
exhaustion of
administrative remedies
would be unreasonable;

when it would amount to a

nullification of a claim;

when the subject matter is

a private land in land case
proceeding;

when the rule does not

provide a plain, speedy
and adequate remedy, and

when there are

circumstances indicating
the urgency of judicial
intervention.

(Paat v. CA, 266 SCRA 167

[1997])

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