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• Must have some permanency and


LAW ON continuity
PUBLIC OFFICERS - Note: This is not to be applied literally.
The Board of Canvassers is a public
Consolidated from Reviewer and Outline from office, yet its duties are only for a
BarOps 2003 and 2004 limited period of time.
- The element of continuance cannot be
considered as indispensable. Mechem
I. PUBLIC OFFICE AND OFFICERS describes the delegation to the
individual of some of the sovereign
A. Public Office functions of government as “the most
important characteristic” in
1. Definition determining whether a position is a
• the right, authority and duty created and public office or not [Laurel v. Desierto
conferred by law, by which for a given (April 12, 2002)].
period, either fixed by law or enduring at In this case, Laurel, who was the chair
the pleasure of the appointing power, an of the National Centennial Commission (NCC),
individual is invested with some portion was declared by the Court to be a public
of the sovereign functions of the officer. The Court ruled that the NCC performs
government, to be exercised by him for executive functions as it enforces and carries
the benefit of the public. (Fernandez v into operation the conservation and promotion
Sto. Tomas, March 7, 2005) of the nation’s historical and cultural heritage,
a policy embodied in the Constitution. That
2. Purpose Laurel did not receive any compensation during
• to effect the end for which government his tenure is of little consequence. This is
has been instituted which is the common because a salary is a usual but not a necessary
good; not profit, honor, or private criterion for determining the nature of the
interest of any person, family or class of position. At the same time, the element of
persons (63 Am Jur 2d 667) continuance cannot be considered as
indispensable.
3. Nature
• A public office is a public trust. (Art. XI, 5. Public Office v. Public Employment
Sec. 1, 1987 Consti) • Public employment is broader than public
• It is a responsibility and not a right. office. All public office is public
(Morfe v. Mutuc) employment, but not all public employment
is a public office.
4. Elements • A public office when it is created by law,
• Must be created either by (a) the with duties cast upon the incumbent which
Constitution, (b) the Legislature, or (c) a involve the exercise of some portion of the
municipality or other body through sovereign power, and in the performance of
authority conferred by the Legislature; which the public is concerned. Public
• Must possess a delegation of a portion of employment is a position which lacks one
the sovereign power of government, to be or more of the foregoing elements.
exercised for the benefit of the public;
• The powers conferred and the duties
discharged must be defined, directly or Public Office Public Contract
impliedly by the Legislature or through
legislative authority; Creation Incident of Originates from will
• The duties must be performed sovereignty of contracting
independently and without control of a parties
superior power other than the law;
- Exception: If the duties are those of Object Carrying out of Obligations imposed
an inferior or subordinate office, sovereign as well as only upon the
created or authorized by the governmental persons who entered
Legislature and by it placed under the functions affecting into the contract
general control of a superior office or even persons not
body; bound by the contract

Subject Tenure, duration, Limited duration


Matter continuity

Scope Duties that are Duties are very


generally continuing specific to the
and permanent contract

Where The law Contract


duties are
defined
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6. Public Office v. Public Contract - by a tribunal or body to which the
power to create the office has been
7. There is no vested right to public office. delegated
• GENERAL RULE: A public office, being a
mere privilege given by the state, does not • Scope and Extent of Power of
vest any rights in the holder of the office. Legislature
This rule applies when the law is clear. - GENERAL RULE: The creation of a
• EXCEPTION: When the law is vague, the public office is primarily a legislative
person’s holding of the office is protected function.
and he should not be deprived of his office. - Exceptions:
• A public office cannot be regarded as the o where the offices are created
property of the incumbent and that a by the Constitution;
public office is not a public contract. o where the Legislature
Although there is a vested right to an delegates such power.
office, which may not be disturbed by
legislation, yet the incumbent has, in a • Delegation of Power to Create Public
sense, a right to his office. If that right is Office
to be taken away by statute, the terms - Where an office is created pursuant to
should be clear (Segovia v. Noel). illegally delegated powers, the office
would have no existence.
8. Public Office is not property.
• A public office is not the property of the U.S.T. v. Board of Tax Appeals
public officer within the meaning of the due
process clause of the non-impairment of The authority given to the
the obligation of contract clause of the President to "reorganize within one year
Constitution. the different executive departments,
• Exceptions: bureaus and other instrumentalities of the
- In quo warranto proceedings relating Government" in order to promote efficiency
to the question as to which of 2 in the public service is limited in scope and
persons is entitled to a public office cannot be extended to other matters not
- In an action for recovery of embraced therein. Therefore, an executive
compensation accruing by virtue of the order depriving the Courts of First Instance
public office of jurisdiction over cases involving
• Due process is violated only if an office is recovery of taxes illegally collected is null
considered property. However, a public and void, as Congress alone has the
office is not property within the "power to define, prescribe and apportion
constitutional guaranties of due process. It the jurisdiction of the various courts."
is a public trust or agency. As public
officers are mere agents and not rulers of 10. Methods of Organizing Offices
the people, no man has a proprietary or • Single-head: one head assisted by
contractual right to an office (Cornejo v. subordinates. Swifter decision and action
Gabriel). but may sometimes be hastily made.
• Board System: collegial body in
formulating polices and implementing
Abeja v. Tanada programs. Mature studies and
deliberations but may be slow in
Public office being personal, the responding to issues and problems.
death of a public officer terminates his
right to occupy the contested office and 11. Modification and Abolition of Public
extinguishes his counterclaim for damages. Office
His widow and/or heirs cannot be • GENERAL RULE: The power to create an
substituted in the counterclaim suit. office includes the power to modify or
abolish it. (i.e., this is generally a
9. Creation of Public Office legislative function)
• EXCEPTIONS:
• Modes of Creation of Public Office o Where the Constitution prohibits
- by the Constitution such modification / abolition;
- by statute / law
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o Where the Constitution gives the delegation to the individual of some of
people the power to modify or the sovereign functions of government,
abolish the office to be exercised by him for the benefit of
• RULE on Abandonment: When a public the public, and that the same portion of
official voluntarily accepts an appointment the sovereignty of the country, either
to an office newly created by law -- which legislative, judicial, or executive,
new office is incompatible with the former attaches, for the time being, to be
-- he will be considered to have abandoned exercised for the public benefit (Laurel v
his former office. Desierto, April 12, 2002)
• Exception: When the non-acceptance • When used with reference to a person
of the new appointment would affect having authority to do a particular act or
public interest, and the public official is perform a particular function in the
thereby constrained to accept. exercise of government power, “officer”
includes any government employee,
Ocampo v. Secretary of Justice agent, or body having authority to do the
act or exercise that function (Sec. 2(14)
The legislative power to create a Administrative Code)
court carries with it the power to abolish it. • For the purpose of applying the
When the court is abolished, any unexpired provisions of the Revised Penal Code,
term is abolished also. employees, agents, or subordinate
officials, of any rank or class, who
Zandueta v. De la Costa perform public duties in the government
or in any of its branches shall be deemed
RULE: When a public official voluntarily as public officers.
accepts an appointment to an office newly
created by law -- which new office is
incompatible with the former -- he will be Illustrations:
considered to have abandoned his former
office. • In the case of Maniego v. People, a
laborer who was in charge of issuing
Exception: When the non-acceptance of summons and subpoenas for traffic
the new appointment would affect public violations in a judge's sala was
interest, and the public official is thereby convicted for bribery under RPC 203.
constrained to accept. The court held that even temporary
performance of public functions is
12. Estoppel to Deny Existence of Office sufficient to constitute a person as a
• When a person has acted as a public public official.
officer, esp. where he has received
public monies by virtue of his office, he • In the case of People v. Paloma, a
is estopped from denying that he has sorter and filer of money orders in the
occupied a public office. Auditor's Office of the Bureau of Posts
was convicted for infidelity in the
B. Public Officer custody of documents. The court
pointed out that the sorting and filing
1. Definition of money orders in the Bureau of Posts
• A public officer is one who performs is obviously a public function or duty.
public functions / duties of government
by virtue of direct provision of law, Who are not considered public officers?
popular election, or appointment by
competent authority. His duties involve • Special policemen salaried
the exercise of discretion in the by a private entity and
performance of the functions of the patrolling only the
government, and are not of a merely premises of such private
clerical or manual nature. entity (Manila Terminal Co.
• The most important characteristic which v. CIR);
distinguishes an office from an
employment is that the creation and
conferring of an office involves a
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• Concession forest guards • Exercise of Judgment or discretion
(Martha Lumber Mill v. • Quasi-judicial
Lagradante); • Ministerial

• Company cashier of a • Legality of Title to office


private corporation owned • De Jure
by the government • De Facto
(Tanchoco v. GSIS)
• Compensation
2. A person cannot be compelled to accept • Lucrative
a public office.
• Honorary
• EXCEPTIONS:
• When citizens are required, under
D. De Facto Officers
conditions provided by law, to render
personal military or civil service (Sec. 1. De Facto Doctrine
4, Art. II, 1987 Const.); It is the principle which holds that a person,
• When a person who, having been who, by the proper authority, is admitted and
elected by popular election to a public sworn into office is deemed to be rightfully in
office, refuses without legal motive to such office until: (a) by judicial declaration in a
be sworn in or to discharge the duties proper proceeding he is ousted therefrom; or
of said office. (b) his admission thereto is declared void.
Its purpose is to ensure the orderly functioning
3. No presumption of power of government. The public cannot afford to
• A public official exercises power, not check the validity of the officer's title each time
rights. The government itself is merely they transact with him.
an agency through which the will of the
state is expressed and enforced. Its 2. De Facto Officer Defined
officers therefore are likewise agents • A person is de facto officer where the
entrusted with the responsibility of duties of his office are exercised under
discharging its functions. As such, there any of the following circumstances:
is no presumption that they are - Without a known appointment or
empowered to act. There must be a election, but under such circumstances
delegation of such authority, either of reputation or acquiescence as were
express or implied. In the absence of a calculated to induce people, without
valid grant, they are devoid of power inquiry, to submit to or invoke his
(Villegas v. Subido). action, supposing him to the be the
officer he assumed to be; or
C. Classification of Public Offices and - Under color of a known and valid
Public Officers appointment or election, but where the
officer has failed to conform to some
• Creation precedent requirement or condition
- Constitutional (e.g., taking an oath or giving a bond);
- Statutory - Under color of a known election or
appointment, void because:
• Public Body Served o the officer was not eligible;
- National o there was a want of power in
- Local the electing or appointing
body;
• Department of government to which their o there was a defect or
functions pertain irregularity in its exercise;
• Legislative o such ineligibility, want of
• Executive power, or defect being
• Judicial unknown to the public.
Note: Such ineligibility, want of
• Nature of functions authority or irregularity being
• Civil unknown to the public
• Military - Under color of an election or an
appointment by or pursuant to a
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public, unconstitutional law, before the
same is adjudged to be such. Validity of Valid, subject Valid as to the
o Note: What is unconstitutional official acts to exceptions public until
is not the act creating the (e.g., they such time as
office, but the act by which the were done his title to the
officer is appointed to an office beyond the office is
legally existing. (Norton v. scope of his adjudged
County of Shelby) authority, insufficient.
etc.)
• Officer De Jure v. Officer De Facto
Rule on Entitled to Entitled to
De Jure De Facto Compensation compensation receive
as a matter of compensation
Requisites Existence of a De jure office; right; only during
de jure office; the time when
The principle no de jure
must possess Color of right of "no work, officer is
the legal or general no pay" is not declared;
qualifications acquiescence applicable to
for the office by the public; him. He is paid
in question; only for actual
Actual services
must be physical rendered by
lawfully possession of him.
chosen to the office in
such office; good faith
• Officer De Facto v. Intruder
must have
qualified De Facto Intruder
himself to
perform the Nature Officer under One who
duties of such any of the 4 takes
office circumstances possession of
according to discussed an office and
the mode under Part II undertakes to
prescribed by (above). act officially
law. without any
authority,
Basis of Right: he has Reputation: either actual
Authority the lawful Has the or apparent
right / title to possession
the office and performs Basis of Color of right None. He has
the duties authority or title to neither lawful
under color of office title nor color
right, without of right or title
being to office.
technically
qualified in all Validity of Valid as to the Absolutely
points of law "official" acts public until void; they
to act such time as can be
his title to the impeached at
How ousted Cannot be Only by a office is any time in
ousted. direct adjudged any
proceeding insufficient proceeding
(quo (unless and
warranto); until he
not continues to
collaterally act for so long
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a time as to law later declared to be unconstitutional
afford a may be considered de facto at least
presumption before the declaration of
of his right to unconstitutionality.
act)
5. Legal Effect of Acts of De Facto Officers
Rule on Entitled to Not entitled to
compensation receive compensation • As regards the officers themselves: A
compensation at all. party suing or defending in his own right
only during as a public officer must show that he is
the time when an officer de jure. It is not sufficient that
no de jure he be merely a de facto officer.
officer is • As regards the public and third persons:
declared; The acts of a de facto officer are valid as
to third persons and the public until his
He is paid title to office is adjudged insufficient.
only for actual RATIONALE: For the protection of the
services public
rendered by • Official Acts of De Facto Officers not
him. subject to collateral attack
• RULE: The title of a de facto officer
and the validity of his acts cannot be
• An intruder / usurper ripen into a de collaterally questioned in proceedings
facto officer. With the passage of time, to which he is not a party, or which
a presumption may be created in the were not instituted to determine the
minds of the public that the intruder very question.
has a right to act as a public officer. • REMEDY: Quo warranto proceedings
• Good faith on the part of the public is a o Who may file:
factor in the ripening of intruder status  The person who claims to be
into de facto status. entitled to the office;
 The Republic of the
3. Elements of a De Facto Officership Philippines, represented by
(1) De jure office  the Solicitor-General; or
(2) Color of right or general  a public prosecutor
acquiescence by the public;
(3) Actual physical possession of the 6. Liabilities of De Facto Officers
office in good faith • The liability of a de facto officer is
generally held to be the same degree of
Examples of those not considered as De Facto accountability for official acts as that of a
Officers de jure officer.
• The de facto officer may be liable for all
• A judge who has accepted an penalties imposed by law for any of the
appointment as finance secretary and following acts:
yet renders a decision after having • usurping or unlawfully holding office;
accepted such appointment (Luna v. • exercising the functions of public office
Rodriguez);
without lawful right;
• not being qualified for the public office
• A judge whose position has already
as required by law.
been abolished by law, and yet
• The de facto officer cannot excuse his
promulgates a decision in a criminal
responsibility for crimes committed in his
case after the abolition and over the
official capacity by asserting his de facto
objection of the fiscal (People v. So)
status.

7. Right to Compensation of De Facto


4. Office created under an
Officer
unconstitutional statute
• GENERAL RULE: A de facto officer cannot
• The prevalent view is that a person
maintain an action to recover the salary,
appointed or elected in accordance with a
fees or other emoluments attached to
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the office, even though he has performed • Eligibility: endowment / requirement /
the duties thereof on the theory that the accomplishment that fits one for a public
acts of a de facto officer as far as he office.
himself is concerned are void. • Qualification: endowment / act which a
The rightful incumbent of a public office person must do before he can occupy a
may recover from an officer de facto the public office.
salary received by the latter during the
time of his wrongful tenure, even though Note: Failure to perform an act required
he entered into the office in good faith by law could affect the officer’s title to
and under color of title (Monroy v CA) the given office. Under BP 881, the office
of any elected official who fails or refuses
EXCEPTION to take his oath of office within six
months from his proclamation shall, shall
Where there is no de jure public officer, be considered vacant unless said failure
the officer de facto who in good faith is for cause or causes beyond his control.
has had possession of the office and
has discharged the duties pertaining B. Power to Prescribe Qualifications
thereto, is legally entitled to the • GENERAL RULE: Congress is empowered
emoluments of the office. to prescribe the qualifications for holding
One who becomes a public officer de public office.
facto without bad faith on his part, • Restrictions on the Power of Congress to
and who renders the services Prescribe Qualifications:
required of the office, may recover • Congress cannot exceed its
the compensation constitutional powers;
• Congress cannot impose conditions of
Gen. Manager, Philippine Ports Authority
eligibility inconsistent with
v. Monserate (April 17, 2002)
constitutional provisions;
• The qualification must be germane to
A de facto officer, not having good
the position ("reasonable relation"
title, takes the salaries at his risk and must
rule);
account to the de jure officer for whatever
• Congress cannot prescribe
salary he received during the period of his
qualifications so detailed as to
wrongful tenure. In fine, the rule is that
practically amount to making an
where there is a de jure officer, a de facto
appointment. (Legislative
officer, during his wrongful incumbency, is
appointments are unconstitutional and
not entitled to the emoluments attached to
therefore void for being a usurpation of
the office, even if he occupied the office in
executive power.);
good faith.
• Where the Constitution establishes
However, this rule was not squarely specific eligibility requirements for a
applied in this case since the de jure officer particular constitutional office, the
assumed another position under protest, constitutional criteria are exclusive,
for which she received compensation. and Congress cannot add to them
Thus, while her assumption to the said except if the Constitution expressly or
position and her acceptance of the impliedly gives the power to set
corresponding emoluments cannot be qualifications.
considered as an abandonment of her • In the absence of constitutional
claim to her rightful office, she cannot inhibition, Congress has the same right
recover full back wages for the period to provide disqualifications that it has to
when she was unlawfully deprived thereof. provide qualifications for office.
She is only entitled to back pay
differentials between the salary rates for Examples of legislative enactments
the lower position she assumed and the which are tantamount to legislative
position she is rightfully entitled to. appointments:

III. ELIGIBILITY AND QUALIFICATIONS • Extensions of the terms of office of the


incumbents;
A. Definition
241
• The People's Court Act, which provided exercise of the power to choose
that the President could designate appointees.
Judges of First Instance, Judges-at-
large of First Instance or Cadastral Flores v. Drilon
Judges to sit as substitute Justices of
the Supreme Court in treason cases Where only one can qualify for the
without them necessarily having to posts in question, the President is
possess the required constitutional precluded from exercising his discretion to
qualifications of a regular Supreme choose whom to appoint. Such supposed
Court Justice. (Vargas v. Rilloraza); power of appointment, sans the essential
element of choice, is no power at all and
• A proviso which limits the choices of goes against the very nature itself of
the appointing authority to only one appointment.
eligible, e.g. the incumbent Mayor of C. Time of Possession of Qualifications
Olongapo City (Flores v. Drilon); • At the time specified where the time is
• A legislative enactment abolishing a specified by the Constitution or law.
particular office and providing for the • Where the Constitution or law is silent,
automatic transfer of the incumbent there are 2 views:
officer to a new office created 1. qualification must be at the time of
(contemplated in Manalang v. commencement of term or
Quitoriano); induction into office;
2. qualification / eligibility must exist
• A provision that impliedly prescribes at the time of the election or
inclusion in a list submitted by the appointment
Executive Council of the Phil. Medical • Eligibility is a continuing nature, and
Association as one of the qualifications must exist throughout the holding of the
for appointment; and which confines public office. Once the qualifications are
the selection of the members of the lost, then the public officer forfeits the
Board of Medical Examiners to the 12 office.
persons included in the list (Cuyegkeng
v. Cruz) ; Castaneda v. Yap

Manalang v. Quitoriano Knowledge of ineligibility of a


candidate and failure to question such
Congress cannot either appoint a ineligibility before or during the election is
public officer or impose upon the President not a bar to questioning such eligibility
the duty to appoint any particular person after such ineligible candidate has won and
to an office. The appointing power is the been proclaimed. Estoppel will not apply in
exclusive prerogative ofthe President, upon such a case.
which no limitations may be imposed by
Congress, except those resulting from: Frivaldo v. COMELEC

(1) the need of securing the The citizenship requirement must


concurrence of the Commission be met only on election day. While the
on Appointments; and Local Government Code requires residency
of one year immediately preceding election
(2) the exercise of the limited day and the prescribed age on election
legislative power to prescribe day, no date is specified for citizenship.
the qualifications to a given The purpose of the citizenship requirement
appointive office. is to ensure leaders owing allegiance to no
other country. Such purpose is not
Cuyegkeng v. Cruz thwarted, but instead achieved by
construing the requirement to apply at
The power of appointment vested time of proclamation and at the start of the
in the President by the Constitution term.
connotes necessarily a reasonable measure
of freedom, latitude, or discretion in the D. Construction of Restrictions on
Eligibility
242
• There is a presumption IN FAVOR OF • 35 years old at time of appointment
ELIGIBLITY of one who has been elected • college degree holder
or appointed to public office. • not a candidate for elective position in
• The right to public office should be election immediately preceding
strictly construed against ineligibility. appointment
• chairman and majority should be
E. Qualifications usually Prescribed members of the bar who have been
engaged in the practice of law for at least
1. For President (Sec. 2, Art. VI, 10 years
Constitution) and Vice President (Sec. 3,
Art. VII, Constitution) 7. COA Commissioners
• Natural-born citizen • Natural-born citizen
• 40 years old on day of election • 35 years old at time of appointment
• resident of the Philippines for at least 10 • CPA with >10 year of auditing experience
yrs immediately preceding election day or
• Bar member engaged in practice of law
2. For Senator (Sec. 3, Art. VI, for at least 10 years
Constitution) • Not have been candidates for elective
position in elections immediately
• Natural-born citizen preceding appointment
• 35 years old on day of election
• able to read and write Cayetano v. Monsod
• registered voter
• resident of the Philippines for not less Practice of law means any activity,
than two years immediately preceding in or out of court, which requires the
election day application of law, legal procedure,
knowledge, training and experience.
3. For Congressmen (Sec. 6, Art. VI, Generally, to practice law is to give notice
Constitution) or render any kind of service which
• Natural-born citizen requires the use in any degree of legal
• 25 years old on day of election knowledge or skill.
• able to read and write
• registered voter in district in which he
shall be elected
• resident thereof for not less than one
year immediately preceding election day

4. Supreme Court Justice


• Natural born citizen
• at least 40 years old
• 15 years or more a judge or engaged in
law practice
• of proven CIPI (competence, integrity,
probity and independence)

5. Civil Service Commissioners (Sec. 1 [1],


Art. IXB. Constitution)
• Natural-born citizen
• 35 years old at time of appointment
• proven capacity for public administration
• not a candidate for any elective position
in elections immediately preceding
appointment

6. COMELEC Commissioners (Sec. 1[1],


Art. IXC)
• Natural-born citizen
243
Aquino v. COMELEC
Note: In National Amnesty Commission
Residency of not less than 1 year v COA, when another office is held
prior to the elections for the position of by a public officer in an ex officio
Congressman. In election law, residence capacity, as provided by law and as
refers to domicile, i.e. the place where a required by the primary functions
party actually or constructively has his of his office, there is no violation.
permanent home, where he intends to
return. To successfully effect a change of • Specific Disqualifications under the
domicile, the candidate must prove an Constitution
actual removal or an actual change of 1) The President, Vice President, the
domicile. Here, it was held that leasing a Members of the Cabinet and their
condominium unit in the district was not to deputies or assistants shall not,
acquire a new residence or domicile but unless otherwise provided in the
only to qualify as a candidate. Constitution, hold any other office or
employment during their tenure (Art.
Marcos v. COMELEC VII, Sec. 13)
2) No Senator or Member of the House
Domicile, which includes the twin of Representatives may hold any
elements of actual habitual residence, and other office or employment in the
animus manendi, the intention of Government, or any subdivision,
remaining there permanently. It was held agency or instrumentality thereof,
that domicile of origin is not easily lost, including government-owned or
and that in the absence of clear and controlled corporations or their
positive proof of a successful change of subsidiaries, during his term without
domicile, the domicile of origin should be forfeiting his seat. Neither shall he be
deemed to continue. appointed to any office which may
have been created or the
emoluments thereof increased during
F. Religious Test or Qualification the term for which he was elected
• No religious test shall be required for the (Art. VI, Sec 13)
exercise of civil or political rights. (Art. 3) The Members of the Supreme Court
III, Sec. 5, 1987 Constitution) and of other courts established by
law shall not be designated to any
G. Disqualifications to Hold Public Office agency performing quasi-judicial or
• IN GENERAL: Individuals who lack any administrative functions (Art. VIII,
Sec. 12)
of the qualifications prescribed by the
4) No Member of a Constitutional
Constitution or by law for a public office
Commission shall, during his tenure,
are ineligible or disqualified from holding
hold any other office or employment.
such office.
(Art. IX-A, Sec. 2)
5) Previous disqualification applies to
• General Disqualifications under the
the Ombudsman and his Deputies
Constitution
(Art. XI, Sec. 8)
a) No candidate who lost in an
6) The Ombudsman and his Deputies
election, shall, within one year
shall not be qualified to run for any
after such election, be appointed to
office in the election immediately
any office in Government (Art. IX-B
succeeding their cessation from office
Sec. 6)
(Art. XI, Sec. 11)
b) No elective official shall be eligible
7) Members of Constitutional
for appointment or designation in
Commissions, the Ombudsman and
any capacity to any public office or
his Deputies must not have been
position during his tenure (Art. IX-
candidates for any elective position
B Sec. 7(1))
in the elections immediately
c) Unless otherwise allowed by law or
preceding their appointment (Art IX-
by the primary functions of his
B, Sec. 1; Art. IX-C, Sec. 1; Art. IX-
position, no appointive official shall
D, Sec. 1; Art XI, Sec. 8)
hold any other position in
8) Members of Constitutional
Government (Art. IX-B Sec 7 (2))
Commissions, the Ombudsman and
244
his Deputies are appointed to a term accumulating in a single person, and to
of seven (7) years, without prevent individuals from deriving,
reappointment (Sec. 1(2) of Arts. IX- directly or indirectly, any pecuniary
B, C, D; Art. XI, Sec. 11) benefit by virtue of their dual position-
The spouse and relatives by holding
consanguinity or affinity within the
fourth civil degree of the President i. Civil Liberties Union v. Executive
shall not during his tenure be Secretary
appointed as Members of the
Constitutional Commissions, or the 1. Section 7, Article IX-B of the
Office of the Ombudsman, or as Constitution is meant to lay down
Secretaries, Undersecretaries, the general prohibition against
chairmen or heads of bureaus or the holding of multiple offices or
offices, including government owned- employment in the government
or controlled corporations (Art. VIII, subsuming both elective and
Sec. 13) appointive public officials, unless
otherwise allowed by law or by
• OTHER DISQUALIFICATIONS the primary functions of his
position. This provision should
1. Mental or physical incapacity not be applied to the President,
Vice-President and cabinet
2. Misconduct or crime: persons convicted members since the Constitution,
of crimes involving moral turpitude are in Section 13, Article VII,
usually disqualified from holding public prescribes a stricter prohibition
office. on the mentioned officials.

3. Impeachment 2. To apply the exceptions found in


Section 7, Article IX-B to Section
13, Article VII would obliterate
4. Removal or suspension from office:
the distinction set by the framers
where there is no constitutional or of the Constitution as to the
statutory declaration of ineligibility for high-ranking officials of the
suspension or removal from office, the Executive branch.
courts may not impose the disability
3. However, the prohibition under
5. Previous tenure of office: for example, Section 13, Article VII is not to
a person who has been elected and has be interpreted as covering
held the office of President is positions held without additional
absolutely disqualified for reelection compensation in ex-officio
capacities as provided by law and
6. Consecutive terms: as required by the primary
a. Vice-President = 2 consecutive functions of the concerned
terms official’s office.
b. Senator = 2 consecutive terms 8. Relationship with the appointing power
c. Representative = 3 consecutive
terms i. Exceptions to rule on nepotism:
d. Elective local officials = 3 a. persons employed in a confidential
consecutive terms capacity
b. teachers
i. Voluntary renunciation of the c. physicians
office for any length of time d. members of the Armed Forces of
shall not be considered as an the Philippines
interruption in the continuity
of his service for the full term 9. Office newly created or the
for which he was elected. emoluments of which have been
increased
7. Holding more than one office: to
prevent offices of public trust from
245
10. Being an elective official: elective office office by one
officials are not eligible for authorized by
appointment or designation in any law to make
capacity to any public office or position such selection
during his tenure; he may be
appointed provided he forfeits his seat
Extent of Limited Comprehensive
11. Having been a candidate for any Powers
elective position
Security of No. Yes.
12. Under the Local Government Code tenure?

a. Those sentenced by final judgment When Assumption Assumption of


for an offense involving moral deemed of a a 2nd
turpitude or for an offense abandonment designated appointive
punishable by 1 year or more of of prior office position is position is
imprisonment, within 2 years after not deemed usually deemed
serving sentence; abandonment abandonment
b. Those removed from office as a of the 1st of the first
result of an administrative case; position office.
c. Those convicted by final judgment
for violating the oath of allegiance to
the Republic; 2. Nature of Appointing Power
d. Those with dual citizenship; • The power to appoint is intrinsically an
e. Fugitive from justice in criminal or executive act involving the exercise of
non-political cases here or abroad; discretion. (Concepcion v. Paredes)
f. Permanent residents in a foreign • The power and prerogative to a vacant
country or those who have acquired position in the civil service is lodged with
the right to reside abroad and the appointing authority.
continue to avail of the same right
after the effectivity of the Local 3. Classification of Appointments
Government Code;
• Permanent: extended to a person
g. The insane or feeble-minded.
possessing the requisite qualifications,

including the eligibility required, for the
IV. FORMATION OF OFFICIAL RELATION
position, and thus protected by the
constitutional guaranty of security of
A. Modes of Commencing Official Relation
tenure
• Election
- lasts until they are lawfully
• Appointment
terminated
• Others:
• Succession by operation of law;
• Direct provision of law, e.g. ex-officio
• Temporary: an acting appointment; it is
extended to one who may not possess
officers
the requisite qualifications or eligibility
required by law for the position, and is
B. Election
revocable at will, w/o the necessity of
• Selection or designation by a popular
just cause or a valid investigation
vote
- lasts until a permanent appointment
is issued
C. Appointment
• Mere fact that a position belongs to the
Career Service of the Civil Service
1. Definition
Commission does not automatically
confer security of tenure. Where the
Designation Appointment
appointee doe not possess the
qualifications for the position, the
Definition Imposition of Selection of an
appointment is temporary and may be
additional individual to
terminated at will
duties upon occupy a
an existing certain public
246
• Acceptance of a temporary appointment - Other officers whose appointments are
vested in him by the Constitution
results in the termination of official
(ibid), including Constitutional
relationship with former position.
Commissioners (Art. IX-B, Sec. 1 (2)
(Romualdez III v CSC)
for CSC; Art. IX-C, Sec. 1 (2) for
• A mere designation does not confer COMELEC; Art. IX-D, Sec. 1 (2) for
security of tenure, as the person COA).
designated occupies the position only in
an acting capacity (Sevilla v CA) • The following can be appointed by the
• Where the appointment is subject to President without the need for CA
conditions, it is not permanent. However, approval
where the temporary appointment is for • All other officers of the government
a fixed period, the appointment may be whose appointments are not otherwise
revoked only at the expiration of the provided for by law;
period or if revocation made before such • Those whom he may be authorized by
expiration, it must be for a valid cause. law to appoint;
• Members of the Supreme Court;
4. Steps in Appointing Process • Judges of lower courts;
• For Appointments which require
• Ombudsman and his deputies
confirmation:
• Kinds of Presidential Appointments
Regular Appointments
Regular: made by the President while
1. Nomination by the President
Congress is in session after the
2. Confirmation by the Commission on
nomination is confirmed by the
Appointments
Commission of Appointments, and
3. Issuance of the commission
continues until the end of the term.
4. Acceptance by the appointee
Ad interim: made while Congress is not
in session, before confirmation by the
Ad-Interim Appointments
Commission on Appointments;
1. Nomination by the President
immediately effective and ceases to be
2. Issuance of the commission
valid if disapproved or bypassed by the
3. Acceptance by the appointee
Commission on Appointments. This is a
4. Confirmation by the Commission on
permanent appointment and it being
Appointments
subject to confirmation does not alter its
permanent character.
• For Appointments which do not require
-
confirmation
o Recess appointment power keeps
1. Appointment by the appointing
in continuous operation the
authority
business of government when
2. Issuance of the commission
Congress is not in session.
3. Acceptance by the appointee
o The appointment shall cease to be
effective upon rejection by the
Note: Where the appointment is to the
Commission on Appointments, or if
career service of the Civil Service, attestation
not acted upon, at the
of the Civil Service Commission is required
adjournment of the next session,
regular or special, of Congress.
3. Presidential Appointees

• The following shall be nominated and


Matibag v. Benipayo (April 2, 2002)
appointed by with the consent of the
Commission on Appointments
An ad interim appointment is a
- Heads of the executive departments
permanent appointment because it takes
(Art. VII, Sec. 16, 1987 Const.);
effect immediately and can no longer be
- Ambassadors (ibid);
withdrawn by the President once the
- Other public ministers and consuls
appointee has qualified into office. The
(ibid);
fact that it is subject to confirmation by the
- Officers of the armed forces from the
Commission on Appointments does not
rank or colonel or naval captain (ibid);
alter its permanent character. The
247
Constitution itself makes an ad interim • It shall be the responsibility of the
appointment permanent in character by departments and agencies to establish,
making it effective until disapproved by the administer and maintain the qualification
Commission on Appointments or until the standards on a continuing basis as an
next adjournment of Congress. incentive to career advancement. (Sec.
7, Rule IV, Omnibus Rules)
An ad interim appointment is • Their establishment, administration, and
distinguishable from an “acting” maintenance shall be the responsibility of
appointment which is merely temporary, the department / agency, with the
good until another permanent appointment assistance and approval of the CSC and
is issued. in consultation with the Wage and
Position Classification Office (ibid)
Said appointment is also distinguished • Shall be established for all positions in
from the exercise of presidential the 1st and 2nd levels (Sec. 1, Rule IV,
prerogative requiring confirmation by the Omnibus Rules)
Commission on Appointments when
Congress is in session. In the latter, the 2. Political Qualifications for an Office
President nominates, and only upon the (i.e., membership in a political party)
consent of the Commission on • GENERAL RULE: Political qualifications
Appointments may the person thus named are not required for public office.
assume office. It is not so with reference - EXCEPTIONS:
to ad interim appointments, as they take o Membership in the electoral
effect at once. The individual chosen may tribunals of either the House of
thus qualify and perform his function Representatives or Senate (Art. VI,
without loss of time. Sec. 17, 1987 Const.);
o Party-list representation;
In this case, the ad interim
o Commission on Appointments;
appointments of the COMELEC
o Vacancies in the Sanggunian (Sec.
Commissioners, being permanent
45, Local Government Code)
appointments, do not violate the
Constitutional prohibition on temporary or
3. Property Qualifications
acting appointments of COMELEC
• In the cases of Maquera v. Borra and
Commissioners.
Aurea v. COMELEC, the Supreme Court
Moreover, the failure of the held that property qualifications are
Commission on Appointments to confirm inconsistent with the nature and essence
the ad interim appointment does not of the Republican system ordained in our
amount to a disapproval by the said Constitution and the principle of social
Commission. There is no dispute that an justice underlying the same. The Court
ad interim appointee disapproved by the reasoned out that "sovereignty resides in
COA can no longer be extended a new the people and all government authority
appointment. On the other hand, a by- emanates from them, and this, in turn,
passed appointee, or one whose implies necessarily that the right to vote
appointment has not been finally acted and to be voted shall not be dependent
upon the merits by the COA, may be upon the wealth of the individual
appointed again by the President. concerned. Social justice presupposes
equal opportunity for all, rich and poor
alike, and that, accordingly, no person
D. Qualification Standards and shall, by reason of poverty, be denied the
Requirements under the Civil Service Law chance to be elected to public office."
4. Citizenship
1. Qualification Standards • Aliens not eligible to public office
• Express the minimum requirements for a
class of positions in terms of education, 5. Effect of removal of qualifications
training and experience, civil service during the term
eligibility, physical fitness, and other • The officer must be terminated.
qualities required for successful
performance. (Sec. 22, Book V, EO 292) 6. Effect of pardon upon the
disqualification to hold public office
248
have been otherwise satisfied, it has no
• GENERAL RULE: A pardon shall not choice but to attest to the appointment.
work the restoration of the right to hold It cannot order the replacement of the
public office. (Art. 36, Revised Penal appointee simply because it considers
Code) another employee to be better qualified.
- EXCEPTIONS: (Lapinid v. CSC)
o Where such right to hold public office
is expressly restored by the terms of • To hold that the Civil Service Law
the pardon (Art. 36, RPC); requires that any vacancy be filled by
o When a person is granted pardon promotion, transfer, reinstatement,
because he did not commit the reemployment, or certification in that
offense imputed to him (Garcia v. order would be tantamount to legislative
Chairman, COA) appointment which is repugnant to the
Constitution. The requirement under the
E. Discretion of Appointing Official Civil Service Law that the appointing
power set forth the reason for failing to
• Discretion, if not plenary, at least appoint the officer next in rank applies
sufficient, should thus be granted to only in cases of promotion and not in
those entrusted with the responsibility of cases where the appointing power
administering the officers concerned, chooses to fill the vacancy by transfer,
primarily the department heads. They reinstatement, reemployment or
are in the most favorable position to certification, not necessarily in that
determine who can best fulfill the order. (Pineda v. Claudio) (c.f.
functions of the office thus vacated. highlighted part in paragraph in next
Unless, therefore, the law speaks in the column)
most mandatory and peremptory tone,
considering all the circumstances, there • The CSC is not empowered to change the
should be, as there has been, full nature of the appointment extended by
recognition of the wide scope of such the appointing officer, its authority being
discretionary authority. (Reyes v. limited to approving or reviewing the
Abeleda) appointment in the light of the
requirements of the Civil Service Law.
• Appointment is an essentially When the appointee is qualified and all
discretionary power and must be the legal requirements are satisfied, the
performed by the officer in which it is CSC has no choice but to attest to the
vested, the only condition being that the appointment. (Luego v. CSC)
appointee should possess the
qualifications required by law. (Lapinid • Where the palpable excess of authority
v. CSC) or abuse of discretion in refusing to issue
promotional appointment would lead to
manifest injustice, mandamus will lie to
• The discretion of the appointing authority
compel the appointing authority to issue
is not only in the choice of the person
said appointments. (Gesolgon v. Lacson)
who is to be appointed but also in the
nature and character of the appointment
• For the appointment to be valid, the
intended (i.e., whether the appointment
position must be vacant (Costin v
is permanent or temporary).
Quimbo)
• Appointment is generally a political
question so long as the appointee fulfills • While the Civil Service Law grants career
the minimum qualification requirements service officers preference in promotion
prescribed by law. under the “next-in-rank” rule, it is not
mandatory that the appointing authority
fill a vacancy by promotion, as the
• The only function of the CSC is to review
appointing authority should be allowed
the appointment in the light of the
the choice of men of his confidence.
requirements of the Civil Service Law,
Provided they are qualified and eligible.
and when it finds the appointee to be
qualified and all other legal requirements
249
• Sec. 9, Chapter II, Title III Book IV of affecting the employees of the Civil
the Admin Code provides that all Service, including “appointment through
provincial and city prosecutors and their certification, promotion, transfer,
assistants shall be appointed by the reinstatement, reemployment, detail,
President upon recommendation of the reassignment, demotion and separation,”
Secretary of Justice. The phrase “upon as well as employment status and
recommendation of the Sec. of Justice” qualification standards.
should be interpreted to be a mere Includes the authority to recall an
advise, which is persuasive in character appointment which has been initially
but is not binding or obligatory upon the approved when it is shown that the same
person to whom it is made. was issued in disregard of pertinent CSC
laws, rules and regulations.
F. Effectivity of Appointment The CSC is not a co-manager or surrogate
• An appointment takes effect immediately administrator of government offices and
upon its issuance by the appointing agencies. Its authority is limited to
authority. (Rule V, Sec. 10, Omnibus approving or reviewing appointments.
Rules).
I. Appointments to the Civil Service
G. Effects of a complete, final and SCOPE: Embraces all branches,
irrevocable appointment subdivisions, instrumentalities and
agencies of the Government, including
• GENERAL RULE: An appointment, once GOCCs with original charters (Art. IX-B
made, is irrevocable and not subject to Sec. 2(1), Constitution)
reconsideration.
• A completed appointment vests a legal Classes of Service
right. It cannot be taken away EXCEPT
for cause, and with previous notice and a) Career Service – Entrance based on
hearing (due process). merit and fitness determined by
• Qualification: Where the assent, competitive examinations, or based on
confirmation, or approval of some other highly technical qualifications,
officer or body is needed before the opportunity for advancement to higher
appointment may be issue and be career positions and security of tenure.
deemed complete.
• EXCEPTIONS: b) Non-career Service – Entrance on
bases other than those of the usual
- When the appointment is an absolute
testes. Tenure limited to a period
nullity (Mitra v. Subido);
specified by law or which is coterminous
- When there is fraud on the part of the
with the appointing authority or the
appointee (Mitra v. Subido);
duration of a particular project. Ex.
- Midnight appointments
elective officials, Department Heads and
o A President or Acting President is
Members of Cabinet
prohibited from making
appointments 2 months
immediately before the next • Requisites:
presidential elections and up to the (i) Shall be made only according to
end of his term. (Art. VII, Sec. 15, merit and fitness to be determined,
1987 Const.) as far as practicable
o Exception: Temporary (ii) By competitive examination
appointments to executive
positions when continued • Exempt from the competitive
vacancies therein will prejudice examination requirements are
public service or endanger public appointments to positions which are:
safety. Policy determining - in which the
officer lays down
H. Jurisdiction of the Civil Service principal or fundamental
Commission (CSC) guidelines or rules; or
The following are within the exclusive formulates a method of
jurisdiction of the CSC: Disciplinary cases action for government or
and cases involving “personnel action” any of its subsidiaries
250
Primarily Confidential – denoting the affected persons are entitled to
not only confidence in payment of salaries for services
the aptitude of the actually rendered at a rate fixed in
appointee for the duties their promotional appointments
of the office but primarily (Sec. 13 of the Omnibus Rules
close intimacy which Implementing EO 292) For this rule
ensures freedom of to apply, the following must
intercourse without concur:
embarrassment or a) there must be a
freedom from misgivings series of
or betrayals on promotions
confidential matters of b) all promotional
the state appointments are
(“Proximity Rule” as simultaneously
enunciated in De los submitted to the
Santos v Mallare) Commission for
- approval
Highly Technical – requires c) the Commission
possession of technical disapproves the
skill or training in a appointment of a
superior degree. ex. City person to a higher
Legal Officer position.

NOTE: It is the nature of the Appointment through Certification is issued to


position which determines a person who has been selected from a list
whether a position is policy of qualified persons certified by the Civil
determining, primarily Service Commission from an appropriate
confidential or highly technical register of eligibles, and who meets all the
qualifications prescribed for the position

Other Personnel Actions Transfer is a movement from one position to


Promotion is a movement from one position to another which is of equivalent rank, level
another with increase in duties and or salary without break in service. This
responsibilities as authorized by law and may be imposed as an administrative
usually accompanied by an increase in pay. remedy.
- An unconsented transfer violates
(i) Next-in-rank rule. The person next security of tenure. However this does
in rank shall be given preference in not apply to a holder of a temporary
promotion when the position appointment or to Career Executive
immediately above his is vacated. Service Personnel whose status and
But the appointing authority still salaries are based on their ranks and
exercises discretion and is not not on the positions to which they are
bound by this rule, although he is assigned
required to specify the “special
reason or reasons” for not Reinstatement Any person who has been
appointing the officer next-in-rank permanently appointed to a position in
the career service and who has, through
(ii) Automatic Reversion rule – All no delinquency or misconduct, been
appointments involved in a chain of separated therefrom, may be reinstated
promotions must be submitted to a position in the same level for which
simultaneously for approval by the he is qualified.
Commission. The disapproval of - It is technically the issuance of a
the appointment of a person new appointment and is discretionary
proposed to a higher position on the part of the appointing power; it
invalidates the promotion of those cannot be the subject of an application
in the lower positions and for a writ of mandamus
automatically restores them to - However, the bestowal of executive
their former positions. However, clemency completely obliterates the
adverse effects of the administrative
251
decision which found him guilty of A judge may not be made a judge
dishonesty. This signifies that of another district without his consent.
petitioner need no longer apply for Appointment and qualification to office are
reinstatement as he is restored ipso separate and distinct things. Appointment
facto upon the issuance of clemency is the sole act of the appointee. There is
no power which can compel a man to
Detail is the movement of an employee from accept the office.
one agency to another without the
issuance of an appointment, and shall
be allowed only for a limited period in 2. Effect of Failure to Qualify
the case of employees occupying • Failure to qualify is deemed evidence of
professional, technical and scientific refusal of the office.
positions. It is temporary in nature. • It is a ground for removal
- If qualification is a condition precedent,
Reassignment An employee may be failure to qualify ipso facto deemed
reassigned from one organizational unit rejection of the office
to another in the same agency, provided - If not condition precedent, failure is
that such reassignment shall not involve not ipso facto rejection
a reduction in rank, status or salary. It is • Justifiable reasons for delay in qualifying:
a management prerogative of the CSC sickness, accident, and other fortuitous
and any dept or agency embraced in the events that excuse delay.
Civil Service and does not constitute • The Omnibus Election Code provides that
removal without cause. the officer must qualify (i.e., take his
- But like detail, the reassignment oath of office and assume office) within 6
should have a definite date or duration. months from proclamation. Otherwise,
Otherwise, it is tantamount to a the position will be deemed vacant.
floating assignment, thus a diminution - Exception: If the non-assumption of
in status or rank office is due to a cause beyond his
control.
• Reemployment Names of persons who • Qualification is significant because it
have been appointed permanently to designates when security of tenure begins.
positions in the career service and who
have been separated as a result of B. Oath of Office
reduction in force and/or reorganization,
shall be entered in a list from which 1. Definition
selection from reemployment shall be • An oath is an outward pledge whereby
made. one formally calls upon God to witness to
the truth of what he says or to the fact
V. ASSUMPTION AND TERM OR TENURE OF that he sincerely intends to do what he
OFFICE says.
• It is not indispensable. It is a mere
A. Qualification to Office incident to the office and constitutes no
part of the office itself. However, the
1. Appointment and Qualification to Office President, Vice-President and Acting
Distinguished President are required by the
Constitution (Art. VII, Sec. 5) to take an
• Appointment is the act of being designated oath or affirmation before entering into
to a public office by the appointing the execution of their office. Such oath-
authority. taking is mandatory.
• Qualification is the act of signifying one's • However, as per Nachura Only when
acceptance of the appointive position. This the public officer has satisfied the
generally consists of the taking / prerequisite of taking his oath of office
subscribing / filing of an official oath, and can his right his position be considered
in certain cases, of the giving of an official plenary and complete. Until then, the
bond, as required by law. (Mechem) holdover officer is the rightful occupant
(Lecaroz v Sandiganbayan)
Borromeo v. Mariano
252
2.Persons Authorized to Administer Oaths • Public ministerial officers whose actions
• Notaries public; may affect the rights and interests of
• Judges; individuals.
• Clerks of court;
• Secretary of House / Senate; 3. Effect of Failure to Give Bond within the
• Secretary of Exec. Departments; Prescribed Period
• Bureau Directors; • If not condition precedent, failure to give
• Register of Deeds; bond merely constitutes a ground for
• Provincial governors; forfeiture of the office. It is not forfeiture of
the office ipso facto.
• City mayors;
• If condition precedent, failure to give bond
• Municipal mayors;
within the prescribed period renders the
• Any other officer in the service of the
office vacant.
government of the Philippines whose
appointment is vested in the President Term of Office Tenure of Office
• Any other officer whose duties, as defined De jure De facto
by law or regulation, require presentation
to him of any statement under oath Fixed and definite period of Period during which the
time during which the incumbent actually holds
3. Persons Obliged to Administer Oaths in officer may claim to hold the office. It may be
All Instances, the office as of right shorter than the term.
• Notaries public
• Municipal judges D. Term and Tenure of Office
• Clerks of court
1. Term of Office and Tenure of Office
4. Time of Taking the Oath of Office Distinguished
• A public officer must take his oath of office
before entering upon the discharge of his 2. Power of the Legislature to Fix and
duties. Change the Term of Office
• Where the term is fixed by the
5. Requalification Constitution, Congress has no power to
• If a public officer is re-elected or re- alter the term.
appointed, he must take another oath and - But such term of office can be
fulfill the other condition precedents before shortened or extended by the vote of
assuming office. The oath and other the people ratifying a constitutional
qualifications made prior to assumption of amendment.
his previous office will not be valid for • Where the term is not fixed, Congress may
subsequent terms of office. fix the terms of officers other than those
provided for in the Constitution.
C. Giving of Bonds • Congress has the power to change the
tenure of officers holding offices created by
1. The Bond it. However, if the term is lengthened and
• It is in the nature of an indemnity bond made to apply to the incumbents, this
rather than a penal or forfeiture bond. could be tantamount to a legislative
• It is an obligation binding the sureties to appointment which is null and void.
make good the officer’s default.
• It is required not for the benefit of the 3. When Term of Office Dependent upon
office holder, but for the protection of the "Pleasure of the President"
public interest and is designed to indemnify • Congress can legally and constitutionally
those suffering loss or injury by reason of make the tenure of certain officials
misconduct or neglect in office. dependent upon the pleasure of the
President. (Alba v. Evangelista)
2. Persons Required to Give Bond • Where the office is held at the pleasure of
• Accountable public officers or those to the appointing power and such appointing
whom are entrusted the collection and power can exercise the power of removal
custody of public money; at his mere discretion, the public officer
may be removed without notice or hearing.
(Alba v. Evangelista)
253

4. No Vested Interest in Term of Office 2. Where no time is fixed


• Public office is a privilege revocable by the • The term will generally begin on the date
sovereignty at will. An incumbent cannot of the election or the appointment.
validly object to the alteration of his term
since he has no vested right in his office. 3. Where the law fixing the term of office
(Greenshow v. U.S.) is ambiguous
• The one that fixes the term at the shortest
5. Term of Office Not Extended by Reason period should be followed
of War
• There is no principle, law or doctrine by 4. In case of vacancy and both the
which the term may be extended by reason duration of the term of office and the
of war. (Nueno, et al. v. Angeles) time of its commencement and
termination is fixed
E. Doctrine of Holdover • Person elected to fill the vacancy shall hold
the same only for the unexpired portion of
1. The Doctrine the term
• A public officer whose term has expired or
services have been terminated is allowed 5. Where only the duration of the term is
to continue holding his office until his fixed but not the beginning or end of
successor is appointed or chosen and had the term
qualified. (Mechem) • Person selected to fill the vacancy may
serve the full term
2. Purpose of the Hold-Over Rule
• Public interest. It is to prevent a hiatus in 6. Where an officer is appointed or office
the public service pending the time when a created to perform a single act
successor may be chosen and inducted into • Office terminates with the accomplishment
office. of the purposes for which it was called into
being.
3. Holding-Over Rules
• Where the law provides for it: The office VI. POWERS AND DUTIES OF PUBLIC
does not become vacant upon the OFFICERS
expiration of the term if there is no
successor elected and qualified to assume A. Source of Government Authority
it. Incumbent will hold-over even if • The people, the sovereignty
beyond the term fixed by law. • The authority of public officers consists of
• Where the law is silent: Unless hold-over is those powers which are:
expressly or impliedly prohibited, (a) Expressly conferred upon him by the
incumbent may hold-over. Law-making act appointing him
body favors hold-over except when the law (b) Expressly annexed to the office by
fixes a specific date for the end of the law
term, therefore there is an implied (c) Attached to the office by common
prohibition against hold over law as incidents to it
• Where the Constitution limits the term of a
public officer and does not provide for B. Scope of Powers of a Public Officer
hold-over: Hold-over is not permitted. • The duties of a public office includes all
• Note: Art 237 of the Revised Penal Code
those which truly are within its scope
penalizes any public officer who shall under the Doctrine of Necessary
continue to exercise the duties and powers Implication:
of his office beyond the period provided by (1) those which are essential to the
law. accomplishment of the main purpose for which
• During this period of hold-over, the public the office was created; or
officer is a de jure officer (2) those which, although incidental or
collateral, are germane to and serve to
F. Commencement of Term of Office promote the accomplishment of the principal
purpose (Lo Cham v. Ocampo).
1. Where the time is fixed
• The term will begin on the specified date.
254
• Needless to say, powers expressly granted delegated?
by law are within the scope of the public Exception: Exception:
office. When the When the law
power to expressly
C. Territorial Extent of Powers of Public substitute / requires the act
Officer delegate has to be
been given performed by
• GENERAL RULE: Where a public officer is the officer in
authorized by law to perform the duties of person and / or
his office at a particular place, action at a prohibits such
place not authorized by law is ordinarily delegation
invalid. (Note: This rule is applicable to all
public officers whose duties are essentially When is Only if the duty In all cases.
local in nature, e.g. judges.) mandamus to do
• EXCEPTIONS: proper? something has
- Consuls; been delayed
- Police officers, who may arrest persons for an
for crimes committed outside Philippine unreasonable
territory; period of time.
- Doctrine of hot pursuit In these cases,
mandamus will
D. Duration of Authority of Public Officers usually compel
• The duration of the authority of public the officer to
officers is limited to that term during which make a
he is, by law, invested with the rights and decision, but
duties of the office. will not dictate
as to what the
E. Construction of Grant of Powers decision will or
• Strict construction. Grant of powers will be should be.
construed as conferring only those powers
which are expressly imposed or necessarily Is public Generally not Liable if duty
implied. officer liable exercised
liable? Exceptions: if contrary to the
F. Classification of Powers there is fraud manner
or malice prescribed by
Discretionary Ministerial law.

Definition Acts which Acts which are


require the performed in a 1. Discretionary Power
exercise of given state of • Discretion, when applied to public
reason in facts, in a functionaries, means a power or right
determining prescribed conferred upon them by law of acting
when, where, manner, in officially in certain circumstances,
and how to obedience to according to the dictates of their own
exercise the the mandate of judgment and conscience, uncontrolled by
power legal authority, the judgment or conscience of others.
without regard (Lamb v. Phipps)
to or the • General Rule: Mandamus will not issue to
exercise of his control or review the exercise of discretion
own judgment of a public officer where the law imposes
upon the on him the right or duty to exercise
propriety or judgment in reference to any matter in
impropriety of which he is required to act (Aprueba v.
the act done Ganzon).
(Lamb v. • Exception:
Phipps) (i) Where there is grave abuse of
discretion, manifest injustice or
Can be Generally, NO. Generally, YES. palpable excess of authority
255
equivalent to a denial of a settled Mandamus will not issue to control or
right to which the petitioner is review the exercise of discretion of a public
entitled, and where there is no officer where the law imposes on him the
other plain, speedy or adequate right or duty to exercise judgment in
remedy. (First Phil. Holdings Corp reference to any matter in which he is
v Sandiganbayan) required to act.
(j) Writ may issue to compel the
exercise of discretion but not the The privilege of operating a market
discretion itself (BF Homes v stall under license is not absolute but
National Water Resources Council) revocable under an implied lease contract
subject to the general welfare clause.
• Judgment v Discretion
Judgment is a judicial function, the Mandamus never lies to enforce the
determination of a question of law. There is performance of contractual obligations.
only one way to be right.
Discretion is the faculty conferred upon a
court or other officer which he may decide Miguel v. Zulueta
the question either way and still be right.
Public officers may properly be
2. Ministerial Power compelled by mandamus to remove or
• A purely ministerial act is one which an rectify an unlawful act if to do so is within
officer or tribunal performs in a given state their official competence.
of facts, in a prescribed manner, in
obedience to the mandate of legal G. Duties of Public Officers
authority, without regard to or the exercise
of his own judgment upon the propriety or 1. General (Constitutional) duties of
impropriety of the act done. A ministerial public officers
act is one to which nothing is left to the a) To be accountable to the people; to
discretion of the person who must perform. serve them with utmost responsibility,
It is a simple, definite duty arising under integrity, loyalty and efficiency’ to act
conditions admitted or proved to exist and with patriotism and justice, and to lead
imposed by law. It is a precise act, modest lives (Art. XI, Sec. 6)
accurately marked out, enjoined upon b) To submit a declaration under oath of
particular officers for a particular purpose. his assets, liabilities and new worth
(Lamb v. Phipps) upon assumption of office and as often
thereafter as may be required by law
Lamb v. Phipps (Art. XI, Sec 17)
c) To owe the State and the Constitution
Auditors and comptrollers, as allegiance at all times (Art. XI, Sec.
accounting officers, are generally regarded 18)
as quasi-judicial officers. They perform
mere ministerial duties only in cases where 2. Specific Cases
the sum due is conclusively fixed by law or The Solicitor General’s duty to represent
pursuant to law. Except in such cases, the the government except in criminal
action of the accounting officers upon cases or civil cases for damages arising
claims coming before them for settlement from felony, is mandatory (Gonzales v
and certification of balances found by them Chavez)
to be due, is not merely ministerial but The government is not estopped from
judicial and discretionary. Mandamus will questioning the acts of its officials,
therefore not issue. more so if they are erroneous or
irregular
Torres v. Ribo
H. Time of Execution of Powers
The powers of the Board of
Canvassers are quasi-judicial and therefore 1. Where not indicated
discretionary. • Within a reasonable time
Aprueba v. Ganzon
2. Where indicated
• Merely directory
256
• Exceptions: (a) Partisan political activity No officer or
- When there is something in the statute employee of the civil service shall engage,
which shows a different intent directly or indirectly, in any electioneering
(Araphoe City v. Union Pac); or partisan political campaign. (Sec. IX-B,
- Where a disregard of the provisions of Sec. 5(3))
the statute would injuriously affect a • The Civil Service Law prohibits
public interest or public right; engaging directly or indirectly in any
- When the provision is accompanied by partisan political activity or taking
negative words importing that the acts part in any election except to vote;
shall not be done in any other manner or use the official authority to coerce
or time than that designated. in the political activity of any person
or body
I. Ratification of Unauthorized Acts • Armed Force shall be insulated from
partisan politics. No member of the
1. If act was absolutely void at the time it military shall engage directly or
was done indirectly in any partisan political
• Cannot be ratified activity, except to vote
2. If merely voidable • However, this prohibition does NOT
• Can be ratified and rendered valid prevent expression of views on
current political problems (Caltex v
3. Government not estopped by the Bonifacio)
unauthorized or illegal acts of officers • This provision is diff from Sec. 79 BP
• As between an individual and his 881 which makes it unlawful for any
government, the individual cannot plead person or any political party to
the void act of an official to shield him from engage in election campaign or
the demand of the government that he partisan political activity except
(the individual) fulfill an obligation which during campaign period. Election
he has contracted with the government, campaign or partisan political activity
after the benefits accruing to him as a refers to an act designed to promote
result of that obligation have been the election or defeat of a
received. The government can neither be candidate/s to public office. If done
estopped nor prejudiced by the illegal acts for the purpose of enhancing the
of its servants. (Government v. Galarosa) chances of aspirants for nomination
for candidacy to a public office by a
Hilado v. Collector political party, it shall not be
considered as election campaign or
A tax circular issued on a wrong partisan political activity.
construction of the law cannot give rise to
a vested right that can be invoked by a
taxpayer.
(b) Additional or double compensation. No
elective or appointive public officer or
employee shall receive additional, double,
or indirect compensation unless specifically
I. Accountability and Responsibility of
authorized by law, nor accept without the
Public Officers and Employees
consent of Congress, any present
emolument, office or title of any kind from
• Norm of Performance of Duties: standards
any foreign government (Art. IX-B, Sec. 8)
of personal conduct provided for in Sec. 4,
RA 6713
- Commitment to public interest; (c) Prohibition against loans. No loan,
- Professionalism; guaranty, or other form of financial
- Justness and sincerity; accommodation for any business purpose
- Political neutrality; may be granted, directly or indirectly, by
- Responsiveness to the public; any government-owned or controlled bank
- Nationalism and patriotism; or financial institution to the ff: 1)
- Commitment to democracy; President
- Simple living 2) Vice President
J. Prohibitions 3) Members of the Cabinet
4) The Congress
5) The Supreme Court
257
6) The Constitutional Commissions • One who intrudes into or usurps a public
(7) The Ombudsman office has no right to the salary or
(8) To any firm to which they have emoluments attached to the office.
controlling interest during their tenure 3. Some Constitutional Provisions
(d) Limitation on Laborers Shall not be Affecting Salaries
assigned to perform clerical activities
• No increase in the salaries of members
(e) Detail or assignment No detail or of Congress shall take effect until after
reassignment shall be made within three the expiration of the full term of the
months before any election without the Members of the Senate and the House
approval of the Comelec of Representatives who approved the
increase (Art. VI, Sec 10)
• Salaries of the President and Vice
(f) Nepotism All appointments made in favor
President shall be fixed by law and
of a relative (within the third civil degree of
shall not be decreased during their
consanguinity or affinity) of the appointing
tenure. No increase shall take effect
authority or the chief of the bureau or
until after the expiration of the term of
office, of the persons exercising immediate
the incumbent during which such
supervision over him are prohibited. This
increase was approved (Art. VII, Sec.
covers all appointments and designations,
6)
including subsequent personnel actions
• The salary of members of the Judiciary
(ex. promotion, reinstatement etc).
shall not be decreased during their
continuance in office (Art. VIII, Sec.
VII. RIGHTS AND PRIVILEGES OF PUBLIC
10) however, imposition of income
OFFICERS
taxes on salaries of judges does not
constitute unconstitutional diminution
A. Right to Office
of salaries (Nitafan v Tan)
• It is the right to exercise the powers of the
• Additional, double or indirect
office to the exclusion of others.
compensation are prohibited (Art. IX-B,
Sec. 8)
B. Right to Salary or Compensation
• Standardization of compensation (Art.
IX-B, Sec. 5) RA 6758, the Salary
1. BASIS
Standardization Law was passed in
• The legal title to the office and the fact
compliance with the constitutional
that the law attaches compensation to his
provision.
office
4. Compensation not an element of public
2. GENERAL RULES
office
• A public officer is not entitled to
• Compensation is not indispensable to
compensation for services rendered under
public office. It is not part of the office but
an unconstitutional statute or provision
merely incident thereto. It is sometimes
thereof.
expressly provided that certain officers
- Exception: If some other statute
shall receive no compensation, and a law
provides otherwise.
creating an office without any provision for
• If no compensation is fixed by law, the
compensation may carry with it the
public officer is assumed to have accepted
implication that the services are to be
the office to serve gratuitously.
rendered gratuitously.
• After services have been rendered by a
public officer, the compensation thus 5. Salary, Wages, and Per Diems Defined
earned cannot be taken away by a and Distinguished
subsequent law. However, he cannot • Salary: time-bound
recover salary for a period during which he
• Wages: service-bound
performed no services.
• Per Diem: allowance for days actually
• One without legal title to office either by
spent for special duties
lawful appointment or election and
qualification is not entitled to recover
6. Salary of Public Officer Not Subject to
salary or compensation attached to the
Attachment
office.
258
• The salary of a public officer or employee facto officer still continues to exercise
may not, by garnishment, attachment, or duties and receive salaries and
order of execution, be seized before being emoluments.
paid by him, and appropriated for the • an intruder / usurper: at all instances.
payment of his debts.
• Money in the hands of public officers, Monroy v. CA and del Rosario
although it may be due government
employees, is not liable to the creditors of Where a mayor filed a certificate of
these employees in the process of candidacy for congressman then withdrew
garnishment because the sovereign State such certificate and reassumed the position
cannot be sued in its own courts except by of mayor, thus preventing the vice-mayor
express authorization by statute. (Director from discharging the duties of the position
of Commerce and Industry v. Concepcion) of mayor, the mayor should reimburse to
the vice-mayor, as the right rightful
7. Future or Unearned Salaries Cannot be occupant of the position of mayor, the
Assigned salaried which he had received.
• The salary or emoluments in public office
are not considered the proper subject of Rodriguez v. Tan
barter and sale. (22 R.C.L. 541)
Where a duly proclaimed elective
8. Agreements Affecting Compensation official who assumes office is subsequently
Held Void ousted in an election protest, the prevailing
• An agreement by a public officer respecting party can no longer recover the salary paid
his compensation may rightfully be to the ousted officer. The ousted officer,
considered invalid as against public policy who acted as de facto officer during his
where it tends to pervert such incumbency, is entitled to the
compensation to a purpose other than that compensation, emoluments and allowances
for which it was intended, and to interfere which are provided for the position.
with the officer's free and unbiased
judgment in relation to the duties of his Exception: If there was fraud on
office. (This is usually with reference to the part of the de facto officer which
unperformed services and the salary or would vitiate his election.
fees attached thereto.)
10. Additional or Double Compensation
9. Right to Recover Salary: De Jure Prohibited
Officer and De Facto Officer
• Where a duly proclaimed elective official Additional Double
who assumes office is subsequently ousted There is only 1 There are 2 positions,
in an election protest, the prevailing party position, but the and with additional
can no longer recover the salary paid to public officer is functions and
the ousted officer. The ousted officer, who getting additional emoluments for both
acted as de facto officer during his compensation. positions
incumbency, is entitled to the .
compensation, emoluments and allowances
which are provided for the position • Pensions / gratuities are not considered as
(Rodriguez v. Tan). additional, double, or indirect
- Exception: If there was fraud on the compensation. (Sec. 8, Art. IX-B, 1987
part of the de facto officer which would Constitution)
vitiate his election. • By its very nature, a bonus partakes of an
• A de jure officer recover from-- additional remuneration or compensation.
• the government: when the government (Peralta v. Auditor General)
continues to pay the de facto officer • An allowance for expenses incident to the
even after the notice of adjudication of discharge of the duties of office is not an
the protest in favor of the de jure increase of salary, a prerequisite, nor an
officer. emolument of office. (Peralta v. Auditor-
• a de facto officer: when notice of General)
adjudication of the title to the de jure
officer has been given, and the de
259
11. Recovery of Salary During Period of because they have no official hours of
Suspension work
• If preventively suspended, he cannot NOTE: However, this ruling may be
recover salary. considered abandoned by the Local
- But If he is subsequently exonerated, Gov’t Code which states in Sec. 81 that
he can. elective local officials shall be entitled
• If he was given penalty of removal from to the same leave privileges as those
office, but was completely exonerated upon enjoyed by appointive local officials
appeal, he can recover back wages and
other monetary benefits. F. Right to Maternity Leave
• If the reinstatement was not the result of
exoneration but an act of liberality by the G. Right to Retirement Pay
Court of Appeals, not entitled to Retirement pay is liberally construed in
compensation as he has not rendered any favor of the retiree (Proferata v Drilon)
service The money value of the terminal leave of a
• If he was given penalty of removal from retiring government official shall
office, but his penalty was commuted from computed at the retiree’s HIGHEST
removal to mere suspension, or demotion, monthly salary (Belicena v Sec. of
he cannot recover because he was still Finance)
found guilty although the penalty was
reduced. H. Others
• If the suspension / removal from office is • Right to reimbursement for expenses
unjustified, he can recover. incurred in the due performance of his
duty. But a public officer who uses a
C. Doctrine of Official Immunity government vehicle is not entitled to,
nor can he charge, a transportation
1. The Doctrine allowance (Domingo v COA, Oct. 7,
• A public officer enjoys qualified, not 1998)
absolute immunity. The protection
generally applies only to activities within • Right to be indemnified against any
the scope of office that are in good faith liability which they may incur in the
and are not reckless, malicious or corrupt. bona fide discharge of their duties

2. Purpose of the Doctrine • Right to longevity pay


• To indirectly protect the sovereign by
protecting the public official in the • Separation Pay to be given to Civil
performance of his governmental function Service employees who are separated
• As a result of the immunity extended, the from the service not for cause but by
fearless and effective administration of the reason of reorganization (Sec. 16, Art
policies of the government is promoted. XVIII)

3. Presidential Immunity from Suit • Right to additional allowances and


• Enjoyed only during the tenure of the
benefits under the Local Government
President.
Code. LGUs may provide additional
• After his tenure, the Chief Executive
allowances and benefits to national
cannot invoke immunity from suit for government officials stationed to their
civil damages arising out of acts done municipality or city.
by him while he was President (Estrada
v Desierto, March 2, 2001) VIII. Liability of Public Officers

D. Right to Preference in Promotion General Rule: A public officer is not liable for
But the right does not prevail over the injuries sustained by another as a consequence
discretion of the appointing authority of official acts done within the scope of his
official authority.
E. Right to Vacation and Sick Leave
However, in Maleniza v COA, it was held Exception: As otherwise provided by law:
that elective officials are not entitled to
accrued vacation and sick leave credits
260
1. A public officer shall not be civilly The wrongful acts or omissions of a public
liable for acts done in the officer may give rise to civil, criminal and
performance of his official duties, administrative liability. An action can proceed
unless there is a clear showing of independently of the others. Dismissal or relief
bad faith, malice or negligence from the criminal action/liability does not carry
(Sec. 38(1) Admin Code) with it relief from administrative liability

2. No subordinate officer or employee When a Public Officer if Subject to Civil


shall be civilly liable for acts done Liability
by him in good faith in the • The following must concur:
performance of his duties. However - injury to the individual must be
he shall be liable for willful or established
negligent acts done by him which - the public officer must have violated a
are contrary to law, morals, public right or duty owed to the individual
policy and good customs even if claiming damages
he acted under orders or - the officer must have maliciously and
instructions of his superiors (Sec. in bad faith acted outside the scope of
39, Admin Code) his / her authority (ultra vires)
• Even mistakes committed by such public
3. However, under the Local Gov’t officer are not actionable as long as it is
Code, Sec. 24, Local governments not shown that they were motivated by
and their officials are not exempt malice or gross negligence amounting to
from liability for death or injury to bad faith.
persons or damage to property
Phil. Racing Club v. Bonifacio
• Statutory Liability
1. Art. 27, Civil Code: Any person In this case, the members of the
suffering moral or material loss Commission on Races declared a horse
because a public officer refuses or race cancelled due to a faulty start, but
neglects, without just cause, to only after holders of the winning tickets
perform his official duty, may file were able to claim their prizes. Because of
an action for damages and other such declaration, the Philippine Racing Club
relief against the public officer. This also made a refund to the holders of the
is without prejudice to losing tickets. A suit was filed against the
administrative disciplinary action Commission, charging them with civil
against the officer liability.

2. Art. 32, Civil Code: Liability of The Court found the


public officer for violation of Commissioners acted outside the scope of
constitutional rights of individuals their authority as they only had the power
to supervise, and not control, the conduct
3. Art. 34, Civil Code: Liability of peace of races. However, they were absolved
officers who fail to respond or give from liability because they acted in their
assistance to persons in danger of official capacity in the honest belief that
injury to life or property [Note: The they had such power.
municipal corporation is subsidiarily
liable] The Court opined that in order that
acts may be done within the scope of
4. Sec. 38(2) Chapter 9, Book I official authority, it is not necessary that
Admin Code: Any public officer they be prescribed by statute, or that they
who, without just cause, neglects be specifically directed or requested by a
to perform a duty within a period superior officer. It is sufficient if they are
fixed by law or regulation, or within done by an officer in relation to matters
a reasonable period if none is committed by law to his control or
fixed, shall be liable for damages to supervision, or that they have more or less
the private party concerned connection to the department under whose
without prejudice to such other authority the officer is acting.

Threefold Liability Rule. Kinds of Liability of Ministerial Officers


261
• Nonfeasance: neglect or refusal, without • A subordinate who acts in good faith under
sufficient excuse, to perform an act which lawful orders of a superior officer is not
it was the officer’s legal duty to the personally liable in an action for damages.
individual to perform • He shall be civilly liable for willful or
negligent acts done by him which are
• Misfeasance: failure to use, in the
contrary to law, morals, public policy or
performance of a duty owing to an good customs, even if he acted under
individual, that degree of care, skill and orders of his superior.
diligence
• Malfeasance: the doing, either through Liability on Contracts
ignorance, inattention or malice, of that • The public officer shall be personally liable
which the officer has no legal right to do at on contracts he enters into if he acted
all without or exceeded his authority.
• It is the general rule that good faith
and absence of malice constitute no Liability for Tortuous Acts
defense in an action to hold a • Public officers are not immune from suit for
ministerial officer liable for damages their own tortuous conduct, even where
caused by nonfeasances or such conduct is committed in the course of
misfeasances. However, good faith or their employment.
honest mistake may be shown in • The public officer shall be personally liable
mitigation of damages. if he goes beyond the scope of his
authority, or exceeds the powers conferred
Liability of Superior Officer for Acts of upon him by law. This is because
Subordinate unauthorized acts of government officials
• GENERAL RULE: Public officers are not are not acts of State, and so the public
civilly liable to 3rd persons for the wrongful officer may be held personally liable.
acts, omissions of duty, negligence or (Shauf v CA; Wylie v Rarang)
misfeasance of their subordinates, unless
he has actually authorized, by written 8. Criminal Liability
order, the specific act or misconduct • The mere fact that an officer is acting in an
complained of. (Sec 38(3), Chap 9, Book I, official capacity will not relieve him from
Admin Code) Thus, those in the chain of criminal liability.
command should not be subject to suit on • The mere expiration of the term of office of
any theory of vicarious responsibility. the public official will not prevent the
- Exceptions: prosecution and punishment for a
o Where, being charged with the misdemeanor committed in office; nor
duty of employing or retaining his does the re-election of a public official
subordinates, he negligently or extinguish the criminal liability incurred by
willfully employs or retains unfit or him during his previous term of office.
improper persons;
o Where, being charged with the IX. ADMINISTRATIVE DISCIPLINE
duty to see that they are appointed
or qualified in a proper name, he A. Over Presidential Appointees
negligently or willfully fails to
require them the due conformity to 1. Disciplinary Authority Lies with the
the prescribed regulations; Appointing Authority
o Where he so carelessly or Sec. 47(1), Book V of EO 292 which provides
negligently oversees, conducts or that “a complaint may be filed directly with the
carries on the business of his CSC by a private citizen against a government
officer as to furnish the opportunity official or employee in which case it may hear
for the default; and decide the case” must be read together
o Where he has directed, authorized with Sec. 48 which is entitled “Procedure in
or cooperated in the wrong; Administrative Cases Against Non-Presidential
o Where liability is expressly Appointees.” The very subject of Sec. 48
provided in the statute. implicitly limits the scope of the CSC’s
jurisdiction in administrative cases to non-
Liability of Subordinates presidential appointees and makes patent the
conclusion that the disciplinary authority over
262
presidential appointees lies elsewhere – the • The grounds constituting just cause are
President as appointing power himself (Olonan enumerated in Sec. 46(b).
v. CSC).
2. Jurisdiction
2. Power to Appoint Implies the Power to • Original complaints may be filed: (a)
Remove; Exceptions directly with the CSC or (b) with the
• Justices of the Supreme Court (by Secretaries and heads of agencies and
impeachment) instrumentalities, provinces, cities and
• Members of Constitutional Commissions municipalities for officers and employees
(by impeachment) under their jurisdiction.
• Ombudsman (by impeachment) • Decisions of Secretaries and heads of
• Judges of inferior courts (disciplinary or agencies and instrumentalities, provinces,
removal power vested in the Supreme cities and municipalities shall be final in
Court) case the penalty imposed is suspension for
not more than 30 days or fine in an
Bonifacio Sans Maceda v. Vasquez amount not exceeding 30 days’ salary.
A judge who falsifies his Certificate • In case the decision rendered by a bureau
of Service is administratively liable to the or office head is appealable to the
SC for serious misconduct and inefficiency Commission, the same may be initially
under Sec. 1, Rule 140 of the Rules of appealed to the department and finally to
Court and criminally liable to the State the Commission and pending appeal, the
under the Revised Penal Code for his same shall be executory except when the
felonious act. Where a criminal complaint penalty is removal, in which case the same
against a judge or other employee arises shall be executory only after confirmation
from their administrative duties, the by the Secretary concerned.
Ombudsman must defer action on said - Decisions imposing the penalty of
complaint and refer the same to the SC for suspension for more than 30 days or
determination whether said judge or court fine in an amount exceeding 30 days’
employee had acted within the scope of salary, demotion in rank or salary or
their administrative duties. Thus, the transfer, removal or dismissal from
Ombudsman should first refer the matter office shall be appealable to the CSC.
to the SC for determination of whether the
certificates reflected the true status of his 3. Procedure in Administrative Cases
pending case load, as the SC had the Against Non-Presidential Appointees
necessary records to make such a • Administrative proceedings may be
determination. Art. VIII, Sec. 6 of the commenced against a subordinate officer
Constitution exclusively vests in the SC or employee by the Secretary or head of
administrative supervision over all courts office of equivalent rank, or head of local
and court personnel. government, or chiefs of agencies, or
regional directors, or upon sworn written
Dolalas v. Ombudsman-Mindanao complaint of any other person.
• For complaints filed by any other person
Citing the Maceda case, the SC - Complainant shall submit sworn
power of administrative supervision over statements covering his testimony and
judges and court personnel is exclusive. those of his witnesses together with his
Investigation by the Ombudsman violates documentary evidence.
the specific constitutional mandate of the - If based on such papers a prima facie
SC and undermines the independence of case is found not to exist, the
the judiciary. disciplining authority shall dismiss the
case. Otherwise, he shall notify the
B. Over Non-Presidential Appointees respondent in writing of the charges
against the latter.
1. Grounds - Respondent shall be allowed not less
• Sec. 46(a), Book V of EO 292: “No officer than seventy-two hours after receipt of
or employee in the Civil Service shall be the complaint to answer the charges in
suspended or dismissed except for cause writing under oath, together with
as provided by law and after due process.” supporting sworn statements and
documents. He shall also indicate
263
whether or not he elects a formal respondent is exonerated of said charges,
investigation if his answer is not as in this case, there is no occasion for
considered satisfactory. appeal. PD 807 shows that it does not
- If the answer is found satisfactory, the contemplate a review of decisions
disciplining authority shall dismiss the exonerating officers or employees from
case. administrative charges. “Party adversely
- Although a respondent does not affected by the decision” in Section 39 of
request a formal investigation, one the Civil Service Law refers to the
shall nevertheless be conducted when government employee against whom case
from the allegations of the complaint was filed.
and the answer of the respondent,
including the supporting documents, 5. Summary Proceedings
the merits of the case cannot be • No formal investigation is necessary and
decided judiciously without conducting the respondent may be immediately
such an investigation. removed or dismissed if any of the
- The decision shall be rendered by the following circumstances is present:
disciplining authority within thirty days - When the charge is serious and the
from the termination of the evidence if guilt is strong;
investigation or submission of the - When the respondent is a recidivist or
report of the investigator, which report has been repeatedly charged and there
shall be submitted within fifteen days is reasonable ground to believe that he
from the conclusion of the is guilty of the present charge; and
investigation. - When the respondent is notoriously
undesirable.
- Either party may avail himself of the
services of counsel and may require 6. Preventive Suspension
the attendance of witnesses and the • The proper disciplining authority may
production of documentary evidence in preventively suspend any subordinate
his favor through the compulsory officer or employee under his authority
process of subpoena or subpoena pending an investigation, if the charge
duces tecum. against such officer or employee involves:
- dishonesty; or
4. Appeals and Petition for - oppression or grave misconduct; or
Reconsideration - neglect in the performance of duty; or
• Within 15 days from receipt of the decision - if there are reasons to believe that the
unless a petition for reconsideration is respondent is guilty of charges which
seasonably filed, which petition shall be would warrant his removal from the
decided within 15 days. service.
• A petition for reconsideration shall be
based only on any of the following • Maximum period for preventive suspension
grounds: • 90 days for national officials
- new evidence has been discovered • 60 days for local appointive and
which materially affects the decision elective officials, except if the case is
rendered; filed in the Ombudsman, the latter may
- the decision is not supported by the impose a preventive suspension for a
evidence on record; or period of 6 months.
- error of law or irregularities have been
committed which are prejudicial to the • When the administrative case against the
interests of the respondent. officer or employee under preventive
• Only one petition for reconsideration shall suspension is not finally decided by the
be allowed. disciplining authority within the period of
ninety (90) days after the date of
Mendez v. Civil Service Commission suspension of the respondent who is not a
presidential appointee, the respondent
The remedy of appeal in civil shall be automatically reinstated in the
service cases may be availed of only in a service.
case where respondent is found guilty of
the charges against him. But when the 7. Penalty
264
• In meting out punishment, the same Committee within 3 session days
penalties shall be imposed for similar thereafter.
offenses and only one penalty shall be - The Committee, after hearing, and by
imposed in each case. a majority vote of all its members,
• The disciplining authority may impose the shall submit its report to the House
penalty of removal from the service, within 60 session days from such
demotion in rank, suspension for not more referral, together with the
than one year without pay, fine in an corresponding resolutions. The
amount not exceeding six months’ salary, resolution shall be calendared for
or reprimand. (Sec. 46(d), Book V, EO 292)
Elective Official Where to File
• If the respondent is found guilty of two or against whom Complaint
more charges or counts, the penalty Administrative
imposed should be that corresponding to Complaint is Filed
the most serious charge or count and the
Provincial or city Office of the
test may be considered as aggravating
circumstances. (Sec. 17 of the official President
Implementing Civil Service Rules and Municipal official Sangguniang
Regulations) Panlalawigan
• A reprimand whether given by the Civil Barangay official Sangguniang
Service Commission or the head of
Panlungsod or
department or agency shall be considered
a penalty. However, a warning or an Sangguniang Bayan
admonition shall not be considered a consideration of the House within 10
penalty. (Sec. 15 of the Implementing Civil session days from receipt thereof.
Service Rules and Regulations) - A vote of at least 1/3 of all the
- Reprimand is a penalty (Tobias v. members of the House shall be
Veloso). necessary either to affirm a favorable
• A warning is an act or fact of putting one resolution with the Articles of
on his guard; an admonition is a gentle or Impeachment of the Committee, or
friendly reproof or a mild rebuke; while a override its contrary resolution.
reprimand is a formal and public censure - In case the verified complaint or
or a severe reproof. resolution of impeachment is filed by at
least 1/3 of all the members of the
• Removal of Administrative Penalties or House, the same shall constitute the
Disabilities Articles of Impeachment, and trial by
- In meritorious cases and upon the Senate shall forthwith proceed.
recommendation of the CSC, the - The Senate shall have the sole power
President may commute or remove to try and decide all cases of
administrative penalties or disabilities impeachment. When sitting for that
imposed upon officers or employees in purpose, the Senators shall be on oath
disciplinary cases, subject to such or affirmation. When the President of
terms and conditions as he may the Philippines is on trial, the Chief
impose in the interest of the service. Justice of the Supreme Court shall
preside, but shall not vote. No person
C. Over Elective Officials shall be convicted without the
concurrence of 2/3 of all the members
1. Impeachment of the Senate.
• Procedure • Judgment in cases of impeachment shall
- A verified complaint may be filed by not extend further than removal from office
any member of the House of and disqualification to hold office under the
Representatives or by any citizen upon Republic of the Philippines, but the party
a resolution of endorsement by any convicted shall nevertheless be liable and
member thereof. subject to prosecution, trial and
- Complaint shall be included in the punishment according to law.
Order of Business within 10 sessions • No impeachment proceedings shall be
days and referred to the proper initiated against the same official more
than once within a period of one year.
265
• May be imposed at any time after the
2. Local Elective Officials (Sec. 60-68, issues are joined, when the evidence of
Local Government Code) guilt is strong, and given the gravity of
the offense, there is great probability
• Grounds for Disciplinary Actions that the continuance in office of the
• Disloyalty to the Republic of the respondent could influence the
Philippines witnesses or pose a threat to the
• Culpable violation of the Constitution safety and integrity of the records and
• Dishonesty, oppression, misconduct in other evidence.
office, gross negligence, or dereliction • Upon expiration of the preventive
of duty suspension, the suspended elective
• Commission of any offense involving official shall be deemed reinstated in
moral turpitude or an offense office without prejudice to the
punishable by at least prision mayor continuation of the proceedings against
• Abuse of authority him, which shall be terminated within
• Unauthorized absence for 15 120 days from the time he was
consecutive days, except in the case of formally notified of the case against
members of the sangguniang him.
panlalawigan, sangguniang • No preventive suspension shall be
panlungsod, sangguniang bayan, and imposed within 90 days immediately
sangguniang barangay prior to any local election. If preventive
• Application for, or acquisition of, suspension has been imposed prior to
foreign citizenship or residence or the the 90-day period immediately
status of an immigrant of another preceding local election, it shall be
country deemed automatically lifted upon the
• Such other grounds as may be start of the aforesaid period.
provided in this Code and other laws.
• Administrative Appeal: Within 30 days from
receipt of the decision, appeal to:
• Procedure • sanggunian panlalawigan, in case of
decisions of the sangguniang panlungsod
(1) Verified Complaint of component cities; and sangguniang
bayan
(2) Answer: Within 7 days after the • Office of the President, in the case of
administrative complaint is filed, the decisions of the sangguniang panlalawigan,
Office of the President or the the sangguniang panlungsod of highly
sanggunian concerned, as the case urbanized cities, the sangguniang
may be, shall require the respondent panglungsod of independent component
to submit his verified answer within cities.
15 days from receipt thereof
(3) Investigation: Commenced within 10 X. TERMINATION OF OFFICIAL
days after receipt of such answer of RELATIONS
the respondent. It shall be
terminated within 90 days from the A. Modes of Termination
start thereof. No investigation shall
be held within 90 days immediately 1. Expiration of Term or Tenure of Office
prior to any local election, and no • End of a fixed term
preventive suspension shall be • End of Pleasure where one holds office
imposed within the said period. at pleasure of appointing authority
(4) Decision: Within 30 days after the • Loss of confidence in primarily
end of the investigation, the Office of confidential employment
the President or the sanggunian 2. Reaching the age limit; Retirement
concerned shall render a decision in 3. Bona fide abolition of office
writing stating clearly and distinctly 4. Abandonment of office
the facts and the reasons for such 5. Acceptance of an incompatible office
decision. 6. Resignation
7. Removal for cause
• Preventive Suspension 8. Temporary appointments’ termination
266
9. Recall expressly dependent upon the pleasure of
10. Impeachment the President.
11. Prescription of right to office
12. Death 3. Loss of Confidence in Primarily
13. Conviction of crime where disqualification Confidential Employment
is an accessory penalty • Official and employees holding primarily
14. Filing of certificate of candidacy confidential positions continue only for so
15. Performance of act or accomplishment of long as confidence in them endures. The
purpose for which the office was created termination of their official relation can be
16. Failure to assume elective office within six justified on the ground of loss of
months from proclamation confidence because in that case, their
cessation from office involves no removal
B. Expiration of Term or Tenure of Office but merely the expiration of the term of
office (Hernandez v. Villegas).
1. End of Fixed Term
• Upon the expiration of the officer’s term, C. Reaching the Age Limit; Retirement
unless he is authorized by law to hold over,
his rights, duties and authority as a public • Conditions for entitlement to retirement
officer must be ipso facto terminated. benefits (R.A. No. 8291)
• he has rendered at least fifteen (15)
2. End of pleasure where one holds office years of service;
at the pleasure of the appointing authority • he is at least sixty (60) years of age at
the time of retirement; and
• President can validly terminate tenure of • he is not receiving a monthly pension
Vice Mayor of Roxas City as the office was benefit from permanent total disability.
created at the pleasure of the President.
What is involved here is not the question of • Compulsory Retirement
removal, or whether legal cause should • Unless the service is extended by
precede or not that of removal. What is appropriate authorities, retirement
involved here is the creation of an office shall be compulsory for an
and the tenure of such office, which has employee at least 65 years of age
been made expressly dependent upon the with at least 15 years of service;
pleasure of the President (Alba v. Provided that if he has less than 15
Evangelista). years of service, he may be
allowed to continue in the service
Fernandez v Ledesma in accordance with existing civil
service rules and regulations.
The Charter of Basilan City NOTE: different in Nachura Reviewer:
provides that the President shall appoint Compulsory Retirement Age is 70 yrs for
and may remove at his discretion any of the members of the Judiciary and 65 yrs
the city’s officers, including its Chief of for other government officers and
Police, with the exception of the municipal employees (Under New GSIS Charter)
judge, who may be removed only
according to law. The legislative intent is to Beronilla v GSIS
make continuance in office dependent upon
the pleasure of the President. Congress has The compulsory retirement of
the power to vest such power of government officials and employees upon
appointment. Further, “A public office is the reaching the age of 65 years is founded on
right for a given period, either fixed by law public policy which aims by it to maintain
or enduring at the pleasure of the creating efficiency in the government service and,
power.” Alba v. Evangelista states that the at the same time, give to the retiring
replacement is not removal, but an public servants the opportunity to enjoy
expiration of tenure, which is an ordinary during the remainder of their lives the
mode of terminating official relations. What recompenses for their long service and
is involved is not removal, or whether legal devotion to the government, in the form of
cause should precede such removal, but a comparatively easier life, freed from the
the creation of an office and the tenure of rigors, discipline and the exacting demands
such office, which has been made that the nature of their work and their
267
relations with their superiors as well as the expressly abolished the Placement Bureau
public would impose on them. and, by implication, the office of the
Director of the Placement Bureau. Had
D. Bona Fide Abolition of Office Congress intended the NES to be a mere
• As a general rule, absent some enlargement of the Placement Bureau, it
Constitutional prohibition, Congress may would have directed the retention, not the
abolish any office it creates without transfer, of qualified personnel to the NES.
infringing upon the rights of the officer or Manalang has never been NES
employee affected. Commissioner and thus could not have
• To consider an office abolished, there must been removed therefrom.
have been an intention to do away with it
wholly and permanently. • Abolition Must Be in Good Faith
• Termination by virtue of the abolition of the - The abolition of an office does not
office is to be distinguished from removal. amount to an illegal removal or
There can be no tenure to a non-existent separation of its incumbent is the
office. After the abolition, there is in law no principle that, in order to be valid, the
occupant. In case of removal, there is an abolition must be made in good faith,
office with an occupant who would thereby not for personal or political reasons,
lose his position. It is in that sense that and not implemented in violation of
from the standpoint of strict law, the law.
question of any impairment of security of -
tenure when there is an abolition of office Briones v. Osmeña
does not arise. The right itself disappeared
with the abolished office as an accessory Briones and Rosagaran were
following the principal. employees in the Office of the City Mayor
since 1937 and 1940, respectively, In
Busacay v. Buenaventura 1956, the City created 35 new positions
and abolished 32, of which the positions of
Busacay was laid off as toll Briones and Rosagaran were included.
collector when the bridge was destroyed. Consequently, the two were terminated. SC
However, the bridge was later held that the termination was not valid.
reconstructed and opened to the public While abolition does not imply removal of
with a new collector being appointed. the incumbent, this rule is true only where
Busacay was ordered reinstated by the SC. the abolition is made in good faith. In other
To consider an office abolished, there must words, the right to abolish cannot be used
have been an intention to do away with it to discharge employees in violation of the
wholly and permanently. In the case at bar, Civil Service law nor can it be exercised for
there was never any thought of not personal or political reasons.
rebuilding the bridge. The collapse of the
bridge did not work to destroy but only to Facundo v. Pabalan
suspend the position of toll collector
thereon, and upon its reconstruction and There is no law which expressly
re-opening, the collector’s right to the authorizes a municipal council to
position was similarly and automatically abolish the positions it has created.
restored. However, the rule is well-settled that
the power to create an office includes
Manalang v. Quitoriano the power to abolish it, unless there
are constitutional or statutory rules
The National Employment Service providing otherwise. But the office
was established by R.A. No. 761 in lieu of must be abolished in good faith.
the Placement Bureau. Quitoriano was
appointed as NES Commissioner in spite of Cruz v. Primicias
the recommendation of the Labor secretary
to appoint Manalang who was the As well settled as the rule that
incumbent Director of the Placement the abolition of an office does not
Bureau. SC held that appoint of Quitoriano amount to an illegal removal of its
was valid. A removal implies that the office incumbent is the principle that, in
still exists. R.A. No. 761, creating NES, order to be valid, the abolition must be
made in good faith. Where the
268
abolition is made in bad faith, for accompanied by deliberation and freedom
political or personal reasons, or in of choice, either to keep the old office or
order to circumvent the constitutional renounce it for another.
security of tenure of civil service • Temporary absence is not sufficient.
employees, it is null and void. In the
case at bar, while 22 positions were
abolished, 28 new positions with higher Summers v. Ozaeta
salaries were simultaneously created.
No charge of inefficiency is lodged Summers, a cadastral judge,
against petitioners. In truth and in fact, assumed office as CFI judge due to an ad
what respondents sought to achieve interim appointment. However, the ad
was to supplant civil service eligibles interim appointment was disapproved and
with men of their choice, whose tenure Summers now seeks to be reappointed as
would be totally dependent upon their cadastral judge. SC held that Summers’
pleasure and discretion. voluntary acceptance of the position of CFI
judge amounted to a waiver of his right to
E. Reorganization hold the position of cadastral judge during
• This occurs where there is an alteration of the term fixed and guaranteed by the
the existing structure of government Constitution. He accepted and qualified for
offices or units therein, including the lines the position of judge-at-large by taking the
of control, authority and responsibility oath of office of judge-at-large, and not
between them to promote greater merely of an “acting” judge-at-large. The
efficiency, to remove redundancy of situation is one wherein he cannot legally
functions, or to affect economy and make hold two offices of similar category at the
it more responsive to the needs of their same time.
public clientele. It may result in the loss of
one’s position through removal or abolition G. Acceptance of an Incompatible Office
of office. • He who, while occupying one office,
• Reorganization of the government may be accepts another office incompatible with
required by law independently of specific the first, ipso facto absolutely vacates the
constitutional authorization. first office. That the second office is inferior
• But in order to be valid, it must also be to the first does not affect the rule. And
done in good faith. even though the title to the second office
- A reorganization is carried out in good fails as where election is void, the rule is
faith if it is for the purpose of economy still the same, nor can the officer then
or to make the bureaucracy more regain the possession of his former office
efficient. Good faith, as a component of to which another has been appointed or
reorganization under a constitutional elected.
regime, is judged from the facts of • If the law or Constitution as an expression
each case. In the case at bar, there of public policy forbids the acceptance by a
was lack of good faith (Dario v. Mison). public officer of any other office other than
that which he holds, it is not a case of
F. Abandonment of Office incompatibility but of legal prohibition.
• A public office may become vacant ipso
facto by abandonment and non-user. When • Incompatibility of offices exists where:
an office is once abandoned, the former • There is conflict in such duties and
incumbent cannot legally repossess it even functions so that the performance of
by forcible re-occupancy. the duties of one interferes with the
• Abandonment must be total and absolute, performance of the duties of another,
and must be under such circumstances as as to render it improper for
clearly to indicate an absolute considerations of public policy for one
relinquishment thereof. person to retain both.
• The officer should manifest a clear • One is subordinate to the other and is
intention to abandon the office and its subject in some degree to its
duties. supervisory powers for in such
• Abandonment by reason of acceptance of situation where both are held by the
another office, in order to be effective and same person, the design that one acts
binding, must spring from and be
269
as a check on the other would be a person to the will of the political
frustrated. authority.
• The Constitution or the law itself, for • Prof. Barlongay: Courtesy resignation
reasons of public policy, declares the is not allowed in (1) career positions
incompatibility even though there is no and (2) non-career positions with
inconsistency in the nature and security of tenure (i.e. local elective
functions of the offices. officials).

• Exceptions to the Rule on Holding of I. Removal for Cause


Incompatible Offices
• Where the officer cannot vacate the 1. Protection from Removal without Cause
first office by his own act, upon the • No officer or employee of the civil service
principle that he will not be permitted shall be removed or suspended except for
to thus do indirectly what he could not cause provided by law (Sec. 2(3), Art. IX,
do directly, as where the law requires 1987 Constitution).
the approval of the provincial board
before a municipal official can resign. 2. Grounds for Removal from Office
• First office is held under a different • For Presidential appointees, Prof. Barlongay
government from that which conferred states that there is no specific law
the second. providing for the grounds for their removal.
• Officer is expressly authorized by law
Determination of grounds is just a matter
to accept another office.
• Second office is temporary. of practice and by analogy, the grounds
used for non-presidential appointees are
H. Resignation made applicable.
• A resignation of a public officer need not • For civil service officials and employees,
be in any particular form, unless some see Sec. 46, Book V, E.O. No. 292 which
form is prescribed by statute. Ordinarily, it
provides for at least 30 grounds for
may either be in writing or by parol.
• There must be an intention to relinquish a disciplinary action.
part of the term, accompanied by the act • For local elective officials, Sec. 60 of the
of relinquishment. Local Government Code provides for the
• The right of a public officer to resign is well grounds where an elective local official may
recognized, even where it is provided than be disciplined, suspended or removed from
an officer may hold over until election and
office.
qualification of a successor.
• Misconduct need not be “in office” in
• Conflicting Views:
case of appointive officers.
• According to some authorities, no
• Misconduct must be “in office” in case
acceptance is necessary to render a
of elective officers.
resignation effective, especially when
• Misconduct committed during a prior
the resignation is unconditional and
term, not a ground for dismissal
purports to take effect immediately.
• Many other cases take the view that to
Ochate v. Ty Deling
be effective, the resignation must be
accepted by competent authority.
The SC held that the facts alleged
Without acceptance, the resignation is
in the administrative charge, as
nothing and the officer remains in
substantiated by the affidavits of the
office. (63 Am Jur 2d., sec. 163)
complainants, do not justify the
• Prof. Barlongay: Two elements are
administrative proceedings instituted
necessary to constitute an effective against the petitioner and his suspension
acceptance: by the governor. The alleged libel imputed
(1) intention to relinquish office coupled to the mayor was not such misconduct
with actual relinquishment; and even if the term “misconduct in office” be
(2) acceptance of resignation. taken in its broadest sense. The radio
• A “courtesy resignation” cannot properly broadcast in which the objectionable
be interpreted as resignation in a legal utterances were made had nothing to do
sense. It just manifests the submission of
270
with his official functions and duties as a temporary), but the nature of the
mayor. appointment (Hojilla v. Marino).
• One appointed to a position of another who
3. Transfer from One Position to Another was illegally suspended or dismissed, holds
May or May Not Constitute Violation of it in temporary capacity and must yield to
Security of Tenure the latter. The reason for this is that there
• A transfer is a movement from one position was no valid termination.
to another which is of equivalent rank,
level, or salary without break in service K. Recall
involving the issuance of an appointment. • The Congress shall enact a local
• It shall not be considered disciplinary when government code which shall provide for a
made in the interest of public service, in more responsive and accountable local
which case, the employee concerned shall government structure instituted through a
be informed of the reasons therefore. If system of decentralization with effective
the employee believes that there is no mechanisms of recall, initiative and
justification for the transfer, he may appeal referendum (Sec. 3, Art. X, 1987
to the SC. Constitution)
• The transfer may be from one department • The procedure for recall is provided in
or agency to another or from one Sections 69-75 of the Local Government
organizational unit to another in the same Code.
department or agency; Provided, however
that any movement from the non-career L. Prescription of Right to Office
service to the career service shall not be • Any person claiming a right to a position in
considered a transfer. the civil service is required to file his
• The intended transfer to Tarlac, if carried petition for reinstatement within one year,
out without the approval of Lacson, would otherwise he is deemed to have abandoned
be equivalent to a removal from his office his office. Reason is public policy and
in Negros Oriental. The reason is that a convenience, stability in the public service
fiscal is appointed for each province and (Unabia v. City Mayor).
Lacson could not legally hold and occupy • Prof. Barlongay: The one-year period is the
the two posts of fiscal of Tarlac and Negros prescriptive period to claim public office
Oriental simultaneously. Therefore, to be a (whether through quo warranto or
fiscal of Tarlac must mean his removal otherwise). The one-year period
from office in Negros. Since the transfer is presupposes judicial action, not
considered a removal, such should be for administrative action.
cause in order for the other person to
legally occupy the office in Negros. There M. Filing of Certificate of Candidacy
was no cause for Lacson’s removal. He • Sec. 66 of the Omnibus Election Code: Any
therefore remains as fiscal of Negros person holding appointive public offices or
(Lacson v. Romero). positions, including active AFP members, is
considered ipso facto resigned from office
J. Termination of Temporary Appointment by the mere filing of certificate of
candidacy.
• The appointment being temporary in • The following provisions have been
character, the same can be terminated at REPEALED by Sec. 14 of R.A. 9006 (Fair
pleasure by the appointing power (Quitiquit Election Act of 2001):
v. Villacorta). • Sec. 67 of B.P. 881 which states that
• One holding an office in a temporary any elective official, whether national
capacity may be ousted at anytime with or or local, running for any office OTHER
without cause (Ferrer v. de Leon). than one which he is holding in a
• The controlling factor in determining the permanent capacity, except for
character of the appointment is the President and Vice President, shall be
appointment itself. Even if a position is considered ipso facto resigned from
permanent, if the appointment is made office by the mere filing of a certificate
temporary, the appointment is of candidacy.
determinative. What is determinative is not • The first proviso of Sec. 11 of R.A.
the nature of the office (permanent or 8436 which states that "Any elective
official, running for any officer other
271
than one which he is holding in a
permanent capacity, except for
President and Vice-President, shall be
considered ipso facto resigned upon
the start of the campaign period."

N. Performance of Act or Accomplishment


of Purpose for which the Office was
Created
• Performance of act or accomplishment of
purpose renders office functus officio.

O. Failure to Assume Office


• Sec. 11, BP 881 provides: “The office of
any official elected who fails or refuses to
take his oath of office within six months
from his proclamation shall be considered
vacant , unless said failure is for cause or
causes beyond his control.”