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B. Administrative agencies

1. CONCEPTS

Government of the Republic of the Philippines – refers to the corporate governmental entity through which the functions of 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. (Section 2[1], E.O. 292, Administrative Code of 1987)

National Government – refers to the entire machinery of the central government, as distinguished from the different forms of local governments. (Section 2[2], Ibid.)

Local Government – refers to the political subdivisions established by or in accordance with the Constitution. (Section 2[3], Ibid.)

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 corporations, or a local government or a distinct unit therein. (Section 2[4], Ibid.)

National Agency – refers to a unit of the National Government. (Section 2[5], Ibid.)

Local Agency – refers to a local government or a distinct unit therein. (Section 2[6], Ibid.)

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. (Section 2[7], Ibid.)

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. (Section 2[8], Ibid.)

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. (Section 2[9], Ibid.)

Instrumentality – refers to any agency of the National Government, not integrated within the department framework vested within special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions and government-owned or controlled corporations. (Section 2[10], Ibid.)

Regulatory agency – refers to any agency expressly vested with jurisdiction to regulate, administer or adjudicate matters affecting substantial rights and interests of private persons, the principal powers of which are exercised by a collective body, such as a commission, board or council. (Section 2[11], Ibid.)

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 the state universities and colleges and the monetary authority of the State. (Section 2[12], Ibid.)

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: Provided, That government-owned or controlled corporations may be further categorized by the Department of the Budget, the Civil Service Commission, and the Commission on Audit for purposes of the exercise and discharge of their respective powers, functions and responsibilities with respect to such corporations. (Section 2[13], Ibid.)

Public Officer as distinguished from clerk or employee -refers to a person whose duties, not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, “officer” includes any government employee, agent or body having authority to do the act or exercise that function. (Section 2[14], Ibid.)

Public Employee – when used with reference to a person in the public service, includes any person in the service of the government or any of its agencies, divisions, subdivisions or instrumentalities. (Section 2[15], Ibid.)

2. ORGANIZATION OF ADMINISTRATIVE AGENCIES

a. Creation

1) Legislative power

The power to abolish a public office is lodged with the legislature. This proceeds from the legal precept that the power to create includes the power to destroy. (Buklod ng Kawaning EIIB v. Zamora, En Banc, G.R. Nos. 142801-802, 10 July 2001)

a) May be delegated

The power of control is entirely different from the power to create public offices. The former is inherent in the Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws. (Biraogo v. The Philippine Truth Commission of 2010, En Banc, G.R. No. 192935, 07 December 2010)

Congress can delegate the power to create positions. This has been settled by decisions of the Court upholding the validity of reorganization statutes authorizing the President to create, abolish or merge offices in the executive department. Thus, at various times, Congress has vested power in the President to reorganize executive agencies and redistribute functions, and particular transfers under such statutes have been held to be within the authority of the President. (DOTC Secretary v. Mabalot, En Banc, G.R. No. 138200, 27 February 2002)

a) Ad hoc committees

The Executive is given much leeway in ensuring that our laws are faithfully executed. The powers of the President are not limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed. (Biraogo v. The Philippine Truth Commission of 2010, supra.)

2) How offices are created

A public office is either created:

1) By the Constitution;

2) By statute; or,

3) By authority of law. (Buklod ng Kawaning EIIB v. Zamora, supra.)

a) Constitutional Agencies/Offices/Instrumentalities

1) Civil Service Commission (CSC);

2) Commission on Elections (COMELEC);

3) Commission on Audit (COA);

4) Office of the Ombudsman and his Deputies; and

5) Commission on Human Rights (CHR).

b. Reorganization

The whole purpose of reorganization is that it is a “process of restructuring the bureaucracy’s organizational and functional set-up, to make it more viable in terms of the economy, efficiency, effectiveness and make it more responsive to the needs of its public clientele as authorized by law.” (Sinon v. CSC, En Banc, G.R. No. 101251, 05 November 1992)

Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above or which are not delegated by the President in accordance with law. (Section 20, Chapter 7, Book III, E.O. 292, Administrative Code of 1987)

The very source of the power of reorganization – that which constitutes an express grant of power – is under Section 31, Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), “the President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of the Office of the President.” For this purpose, he may transfer the functions of other Departments or Agencies to the Office of the President. (Buklod ng Kawaning EIIB v. Zamora, supra.)

Reorganization “involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions.” It takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. (Ibid.)

1) Reorganization measures

Deactivation and abolition are both reorganization measures. (Ibid.)

a) Deactivation

To “deactivate” means to render inactive or ineffective or to break up by discharging or reassigning personnel. (Ibid.)

While in abolition, the office ceases to exist, the same is not true in deactivation where the office continues to exist, albeit remaining dormant or inoperative. (Ibid.)

b) Abolition

To “abolish” means to do away with, to annul, abrogate or destroy completely. (Ibid.)

In essence, abolition denotes an intention to do away with the office wholly and permanently. (Ibid.)

GENERAL RULE: The power to abolish a public office is lodged with the legislature. This proceeds from the legal precept that the power to create includes the power to destroy. (Ibid.)

EXCEPTIONS:

1) Where the office was created by the Constitution itself, it may be abolished by the same legislature that brought it into existence;

2) As far as bureaus, agencies or offices in the executive department are concerned, the President’s power of control may justify him to inactivate the functions of a particular office, or certain laws may grant him the broad authority to carry out reorganization measures. (Ibid.)

2) President’s power

a) Basis

President’s power to reorganized is based on either the following:

1) Power of Control under the Constitution –The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. (Section 17, Article VII, 1987 Constitution)

2) Continuing Authority of the President to Reorganize his Office under E.O. 292 – The President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the following actions:

a) Restructure the internal organization of the Office of the President Proper, including the immediate Offices, the Presidential Special Assistants/Advisers System and the Common staff Support System, by abolishing, consolidating or merging units thereof or transferring functions from one unit to another;

b) Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the Office of the President from other Departments and Agencies; and

c) Transfer any agency under the Office of the President to any other department or agency as well as transfer agencies to the Office of the President from other departments or agencies. (Section 31, Chapter 10, Book III, E.O. 292, Administrative Code of 1987)

b) Restructure v. Transfers

The President’s power to reorganize the Office of the President under Section 31 (2) and (3) on transfers of E.O. 292 should be distinguished from his power to reorganize the Office of the President Proper on restructuring. (Ligaya v. Zamora, G.R. No. 142283, 06 February 2003)

Under Section 31 (1) of E.O. 292 on restructuring, the President can reorganize the Office of the President Proper by abolishing, consolidating or merging units, or by transferring functions from one unit to another. (Ibid.)

In contrast, under Section 31 (2) and (3) of EO 292, the President’s power to reorganize offices outside the Office of the President Proper but still within the Office of the President is limited to merely transferring functions or agencies from the Office of the President to Departments or Agencies, and vice versa. (Ibid.)

c) Distinction affects security of tenure

This distinction is crucial as it affects the security of tenure of employees. The abolition of an office in good faith necessarily results in the employee’s cessation in office, but in such event there is no dismissal or separation because the office itself ceases to exist. (Ibid.)

On the other hand, the transfer of functions or agencies does not result in the employee’s cessation in office because his office continues to exist although in another department, agency or office. (Ibid.)

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