FOR |
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THE CHAIRPERSON OF THE BOARD/ PRESIDENT/ CEO/
ADMINISTRATOR/ GENERAL MANAGER OF GOVERNMENT-OWNED OR –CONTROLLED CORPORATIONS
ALL HEADS OF LEGAL DEPARTMENT OF GOCCs
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| FROM |
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ATTY. ALBERTO AGRA
GOVERNMENT CORPORATE COUNSEL |
| RE |
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RELEVANT ELECTION LAWS AND COMELEC RESOLUTIONS AFFECTING GOCCs |
| DATE |
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5 March 2007 |
__________________________________________________________________
This Memorandum Circular discusses relevant election laws and regulations affecting government-owned or -controlled corporations (GOCCs). This Circular seeks to summarize, popularize and to some extent clarify legislation and subordinate legislation on the matter. This however does not intend to supplement or modify and therefore will not have the effect of supplementing or modifying existing laws and rules (Resolutions Nos. 7707, 7770, 7770-A and 7785) issued by the Commission on Elections (Comelec).
These are the subject matters covered in this Circular:
- Dates to Remember
- Rules and Ban on Public Works
- Rules and Ban on GOCC Personnel Movement
- Rules and Ban on Campaign
- Other Prohibitions and Election Offenses
Periods/ Dates |
Activities/ Prohibitions |
January 14 to May 13, 2007 |
Election Period
Ban on Transfer of Officers and Employees in the Civil Service |
February 13 to May 13, 2007 |
Campaign Period for Senators and Party-List |
March 30 to May 13, 2007 |
Campaign Period for Congressional and Local Positions
Ban on Hiring of Appointments of New Employees
Ban on Creating New Positions
Ban on Promotions and Increase of Salaries |
March 30 to May 14, 2007 |
Public Works Ban |
May 14, 2007 |
Election Day |
2. Rules and Ban on Public Works
Extent of the Ban
Section 261, subsections (v) and (w) of the Omnibus Election Code (Code) proscribes GOCCs and their subsidiaries from releasing, disbursing or expending public funds for any and all kinds of public works. The ban is confined to public works expenditures and does not cover all forms of expenditures made or to be incurred by GOCCs.
The ban on public works is also not absolute. The Code and Comelec Resolution No. 7785 enumerate the exceptions, i.e., those expenditures not covered under the ban. These are:
(a) Maintenance of existing and/or completed public works project: Provided, That not more than the average number of laborers or employees already employed therein during the six-month period immediately prior to the beginning of the forty-five (45) day period before election day, shall be permitted to work during such time: Provided, further, That no additional laborers shall be employed for maintenance work within the said forty-five (45) days;
(b) Work undertaken by contract through public bidding held, or by negotiated contract awarded, before the forty-five (45) day period before election: Provided, That for the purpose of this Section work undertaken under the so-called “takay” or “paquiao” system shall not be considered as work by contract;
(c) Payment for the usual cost of preparation for working drawings, specifications, bills of materials, estimates and other procedures preparatory to actual construction including the purchase of materials and equipment, and all incidental expenses for wages of watchmen and other laborers employed for such work in the central office and field storehouses before the beginning of such period: Provided, That the number of such laborers shall not be increased over the number hired when the project or projects were commenced; and
(d) Emergency work necessitated by the occurrence of a public calamity, but such work shall be limited to the restoration of the damaged facility.
(e) Ongoing public works projects commenced before the campaign period or similar projects under foreign agreements.
Thus, based on the text of the Code, the public works ban does not cover:
- Expenses incidental to bidding or award of a contract since these expenses are not public works-related;
- Release, disbursement and expenditures on public works made on or before March 29, 2007 and those made after May 14, 2007; and
- Release, disbursement and expenditures on public works made from March 30 to May 14 on public works provided they fall under the exemptions above-mentioned
No. |
Scenario |
What has to be done |
1 |
If project completed or award made before March 30 and disbursement made from March 30 to May 14 |
Exempted from ban
Comelec disclosure expressly required |
2 |
Project to be completed or awarded between March 30 to May 14 and no disbursement within said period |
Exempted from ban
Comelec disclosure not expressly required |
3 |
Project to be completed or awarded between March 30 to May 14 and disbursement within said period |
Not exempted from ban
Comelec exemption needed |
With regards expenses that will be made from March 30 to May 14, 2007 that do not fall within the exemptions stated in the Code, Comelec exemption must be obtained otherwise, officials of the concerned GOCC could be held liable for commission of an election offense. Any violation shall be punishable by imprisonment of not less than one year but more than six years, among other penalties provided for by law.
Duration of the Ban
The ban is for 45 days (i.e., March 30 to May 14, 2007).
Reportorial Requirements
Section 3 of Resolution No. 7785 requires the Secretary of Public Works and Highways and local chief executives to submit, on or before March 22, 2007, to the Comelec thru the Provincial Election Supervisors concerned certified lists of:
(a) all on-going public works projects commenced before March 30, 2007;
(b) similar projects under foreign agreements; and
(c) all public works undertaken by contract through public bidding held, or by negotiated contract awarded before March 30, 2007 together with a copy of each of said contracts.
While the text of the Resolution apparently exempts GOCCs from submitting such lists, it is the prevailing opinion that GOCCs are covered.
If after March 22, 2007, there are public works projects commenced or awarded before March 30, 2007, a supplemental certified list shall be submitted.
The following matrix may be used:
Region: _____ Province: __________ City/ Municipality: __________
Nature and Description of Project |
Nature of Project/ Public Works |
Actual Status as of December 31, 2006 |
Projected Status as of March 30, 2007 |
Projected Status as of May 14, 2007 |
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3. Rules and Ban on GOCC Personnel Movement
Summary
Ban |
Period of Ban |
Exceptions |
Ban on Transfer of officers or employees in the Civil Service [Section 261(h), Code] |
January 14 to June 13, 2007 |
Secure prior authority from Comelec |
Ban on Appointments [Section 261(g), Code] |
March 30 to May 14, 2007 |
Secure prior authority from Comelec |
Ban on Creation of New Positions [Section 261(g), Code] |
March 30 to May 14, 2007 |
Secure prior authority from Comelec |
Ban on Promotions [Section 261(g), Code] |
March 30 to May 14, 2007 |
Total ban; No Exceptions |
Ban on Increases of Salary [Section 261(g), Code] |
March 30 to May 14, 2007 |
Total ban; No Exceptions |
Any violation of the foregoing shall constitute an election offense and shall be punishable by imprisonment of not less than one year but not more than six years, among other penalties provided by law.
Ban on Transfer
Extent of Ban. During the election period from January 14, 2007 until June 13, 2007, no public official shall, except upon prior written authority of the Comelec make or cause any transfer/ detail whatsoever of any officer or employee in the civil service. The ban does not cover those officers and employees not belonging to the civil service.
Definition of Transfer. “Transfer” shall be construed as any personnel movement from one government agency to another or from one dependent, division, geographical unit or subdivision of a government agency to another with or without the issuance of an appointment. Reassignment of personnel is considered a transfer covered in the ban. (Regalado v. Court of Appeals, 325 SCRA 516)
Where to file requests for authority. Requests for authority to make or cause any transfer or detail of any officer or employee in the civil service shall be in writing and filed with the Comelec Law Department when the: (1) official station is in the central/ main offices of the GOCC; and (2) transfer or detail is inter-regional, among others. Said requests shall indicate: (1) the office and place to which the officer or employee is proposed to be transferred/ detailed or otherwise moved; and (2) stating the reasons therefor.
Requests for transfers or detail involving government employees with official stations in the field offices including the National Capital Region shall be filed with the corresponding offices of the Regional Election Directors where the employee/s sought to be detailed or transferred is stationed.
Ban on Appointments
Extent of Ban. Beginning March 30, 2007 until May 14, 2007, no head, official or appointing officer of any GOCC, shall, except upon prior authority of the Comelec appoint or hire any new employee, whether permanent, provisional, temporary, substitute or casual.
Where to file requests for authority. Requests involving employees in the central or main offices of GOCCs shall be submitted in writing to the Comelec Law Department stating all that necessary data and reasons for the same. Requests for authority to appoint or hire new employees shall be submitted in writing to the Office of the Regional Election Directors of the region where the vacancy exists.
Excluded in Ban. Renewal of appointments of temporary, casual, substitute and contractual personnel are not covered by this prohibition and therefore will no longer need prior authority of the Comelec. However, the appointing authority shall furnish the Comelec, through its Regional Offices for field positions and through the Law Department for main office positions, a complete list of employees whose appointments were renewed indicating their position, item number, salary grade and station.
Ban on Creating New Positions
Extent of Ban. Beginning March 30, 2007 until May 14, 2007, no head, official or appointing officer of any GOCC, shall, except upon prior authority of the Comelec create and fill any new position
Conditions for Exception. The Comelec shall not grant the authority unless it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned and that the filling of such position shall not in any manner influence the results of the elections.
When need urgent; Exception to Ban. Where there is urgent need to appoint or hire new employees, the same may be allowed without the need for a prior request for authority from the Comelec provided that within three days from the date of the appointment or hiring, the Comelec through the respective Office of the Regional Elections Directors in case of filed positions, or through the Law Department in case of central or main office positions, shall be notified in writing, stating therein the exact date when the position sought to be filled became vacant, the cause of vacancy, reason/s for said appointment or hiring and all the necessary data or information regarding the same. The appointment or hiring of new employees shall be valid unless the same is found by the Comelec: (1) to have been made to influence in any manner the results of the election; (2) to have been issued without the required notice; and (3) that there is no urgency for the appointment.
The need to fill up a vacant position by a new employee may be considered “urgent” if the position sought to be filled is essential to the proper functioning of the office or agency concerned and that the position sought to be filled has been vacated either by the death, retirement, resignation, promotion or transfer of the regular incumbent; provided, that the appointment is issued within 60 days from the occurrence of the vacancy, and that the same cannot be filled by promotion or transfer of insiders within the same period; and provided further, that the position shall not be filled in a manner that may influence the election. Appointment to a position which has been vacant for more than 60 days before the issuance of appointment shall not be considered urgent and must, therefore, require prior written authority from the Comelec or the Regional Election Directors concerned.
Ban on Promotions
Duration of Ban. Beginning March 30, 2007 until May 14, 2007, no government official shall promote or give any increase of salary or remuneration or privilege to any official or employee of GOCCs.
Total Ban. Promotion, or giving any increase of salary, remuneration, or privilege to any government official or employee including those in GOCCs is strictly prohibited without exception whatsoever.
Definition of Promotion. “Promotion” shall mean the advancement of an employee from one position to another with an increase in duties and responsibilities as authorized by law, and usually accompanied by increase in salary. Promotion may be from one department or agency to another or from one organizational unit to another within the same department or agency.
Disciplinary Actions
No Ban. There is no election ban on removal, dismissal, suspension of or imposition of disciplinary action on officials and employees of GOCCs. GOCCs can cause the removal, dismissal or suspension of their officers and employees subject to compliance with relevant civil service laws and regulations. The ban on suspension of elective provincial, city, municipal or barangay officer is not applicable insofar as GOCCs are concerned since GOCCs have no control and supervision over local governments and local government officials.
4. Rules and Ban on Campaign
Definition of Terms:
“Candidate” refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself/ herself or through an accredited political party, aggroupment, or coalition of parties. [Section 79(a), Code] Unless one has filed his/ her certificate of candidacy, he/ she is not a “candidate.” (Lanot v. Commission on Elections, G.R. No. 164858, November 16, 2006) The filing is the operative act.
“Election Campaign” or “Partisan Political Activity” refers to an act designed to promote the election or defeat of a particular candidate or candidates to a public office. [Section 79(b), Code]
The Civil Service Commission (Section 14, Rule XVIII, Civil Service Rules) defines “partisan political campaign” to mean active support for or affiliation with the cause of a political party or candidate. This would include, among others, being a candidate for any elective office or delegate to any political convention, being an officer or member of any political convention, being an officer or member of any political committee, party or organization, delivering speeches, canvassing or soliciting votes or political support or contributions for any political party or candidate, or in general, becoming actively identified with the success or failure of any candidate or candidates for election to public office.
Ban on Political Activity
Section 2(4), Article IX-B of the 1987 Constitution expressly provides that “No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign.”
Presidential Decree No. 807 (Section 45, Civil Service Law) and Executive Order No. 292 (Administrative Code of 1987, specifically Section 55, Book V, Title I, Subtitle A) bar officers or employees in the Civil Service from engaging directly or indirectly in any partisan political activity. Said laws provide:
Political Activity. — No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code.
Section 261(i) of the Code “Intervention of public officers and employees” as an Election Offense. The Code states:
Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member or the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer.
The ban includes solicitation of an elector’s vote in favor of a specific candidate, contribution of money for election purposes and distribution of handbills. (People v. De Venecia, 14 SCRA 864)
Application of Ban on GOCCs
The ban under the 1987 Constitution, Civil Service Law and Administrative Code of 1987 only covers officers and employees in the Civil Service. The ban does not extend to those officers and employees outside of the civil service such as members of the Cabinet. [Santos vs. Yatco (106 Phil. 745)] If the intention of the framers of the Constitution, Civil Service Law and Administrative Code was to include all public officers and employee or those in the government service, they should have worded it so.
Thus, not all GOCCs are covered under the prohibition since not all officers and employees of GOCCs belong to the civil service. Only officers and employees of chartered GOCCs or those which have been created by special law belong to the civil service. Those officers and employees of non-chartered GOCCs or organized under the general corporation law are not part of the civil service. In National Service Corporation v. National Labor Relations Commission (168 SCRA 122), the Supreme Court held that the Civil Service does not include those employed by GOCCs created under the Corporation Code. Thus, the test for determining whether officers and employees of GOCCs come under the Civil Service System is the manner of creation of such GOCC.
Officers and employees in the civil service such as officers and employees of the chartered GOCCs however can:
- Vote;
- Expressing his/ her views on current political problems or issues;
- Mention the names of candidates for public office whom he/ she supports;
- Join civic organizations that are non-partisan in character. (I Record of the 1986 Constitutional Commission 544, 545, 573)
5. Other Prohibitions and Election Offenses
Section 95 of the Code lists the Prohibited Contributions. The Code reads:
Prohibited Contributions. — No contribution for purposes of partisan political activity shall be made directly or indirectly by any of the following:
(a) Public or private financial institutions: Provided, however, That nothing herein shall prevent the making of any loan to a candidate or political party by any such public or private financial institutions legally in the business of lending money, and that the loan is made in accordance with laws and regulations and in the ordinary course of business;
(b) Natural and juridical persons operating a public utility or in possession of or exploiting any natural resources of the nation;
(c) Natural and juridical persons who hold contracts or sub-contracts to supply the government or any of its divisions, subdivisions or instrumentalities, with goods or services or to perform construction or other works;
(d) Natural and juridical persons who have been granted franchises, incentives, exemptions, allocations or similar privileges or concessions by the government or any of its divisions, subdivisions or instrumentalities, including government-owned or controlled corporations;
(e) Natural and juridical persons who, within one year prior to the date of the election, have been granted loans or other accommodations in excess of P100,000 by the government or any of its divisions, subdivisions or instrumentalities including government-owned or controlled corporations;
(f) Educational institutions which have received grants of public funds amounting to no less than P100,000.00;
(g) Officials or employees in the Civil Service, or members of the Armed Forces of the Philippines; and
(h) Foreigners and foreign corporations.
Section 261 of the Code enumerates Election Offenses. Below are some of the offenses GOCCs must take notice of:
(a) Vote-buying and vote-selling. — (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party. (2) Any person, association, corporation, group or community who solicits or receives, directly or indirectly, any expenditure or promise of any office or employment, public or private, for any of the foregoing considerations.
(d) Coercion of subordinates. — (1) Any public officer, or any officer of any public or private corporation or association, or any head, superior, or administrator of any religious organization, or any employer or land-owner who coerces or intimidates or compels, or in any manner influence, directly or indirectly, any of his subordinates or members or parishioners or employees or house helpers, tenants, overseers, farm helpers, tillers, or lease holders to aid, campaign or vote for or against any candidate or any aspirant for the nomination or selection of candidates. (2) Any public officer or any officer of any commercial, industrial, agricultural, economic or social enterprise or public or private corporation or association, or any head, superior or administrator of any religious organization, or any employer or landowner who dismisses or threatens to dismiss, punishes or threatens to punish be reducing his salary, wage or compensation, or by demotion, transfer, suspension, separation, excommunication, ejectment, or causing him annoyance in the performance of his job or in his membership, any subordinate member or affiliate, parishioner, employee or house helper, tenant, overseer, farm helper, tiller, or lease holder, for disobeying or not complying with any of the acts ordered by the former to aid, campaign or vote for or against any candidate, or any aspirant for the nomination or selection of candidates.
(e) Threats, intimidation, terrorism, use of fraudulent device or other forms of coercion. — Any person who, directly or indirectly, threatens, intimidates or actually causes, inflicts or produces any violence, injury, punishment, damage, loss or disadvantage upon any person or persons or that of the immediate members of his family, his honor or property, or uses any fraudulent device or scheme to compel or induce the registration or refraining from registration of any voter, or the participation in a campaign or refraining or desistance from any campaign, or the casting of any vote or omission to vote, or any promise of such registration, campaign, vote, or omission therefrom.
(j) Undue influence. — It is unlawful for any person to promise any office or employment, public or private, or to make or offer to make an expenditure, directly or indirectly, or to cause an expenditure to be made to any person, association, corporation or entity, which may induce anyone or the public in general either to vote or withhold his vote, or to vote for or against any candidate in any election or any aspirant for the nomination or selection of an official candidate in a convention of a political party. It is likewise unlawful for any person, association, corporation or community, to solicit or receive, directly or indirectly, any expenditure or promise or any office, or employment, public or private, for any of the foregoing considerations.
(o) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign. — Any person who uses under any guise whatsoever, directly or indirectly, (1) public funds or money deposited with, or held in trust by, public financing institutions or by government offices, banks, or agencies; (2) any printing press, radio, or television station or audio-visual equipment operated by the Government or by its divisions, sub-divisions, agencies or instrumentalities, including government-owned or controlled corporations, or by the Armed Forces of the Philippines; or (3) any equipment, vehicle, facility, apparatus, or paraphernalia owned by the government or by its political subdivisions, agencies including government-owned or controlled corporations, or by the Armed Forces of the Philippines for any election campaign or for any partisan political activity.
For your information and guidance.
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ALBERTO C. AGRA
Government Corporate Counsel
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