Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 110936 February 4, 1994

FRANCISCO A. TAN, JR., petitioner,

vs.
OFFICE OF THE PRESIDENT, RENATO C. CORONA, In His Capacity as Assistant Secretary for
Legal Affairs, Office of the President, DEPARTMENT OF AGRICULTURE, COMMISSION ON
AUDIT, and ANDRES R. MENGUITO, respondents.

Cortesss & Reyna Law Firm for petitioner.

The Solicitor General for public respondents.

VITUG, J.:

The instant petition seeks to nullify the Resolution, dated 12 January 1993, of the Office of the
President ("OP"), denying petitioner's partial motion for reconsideration of OP Resolution, dated 30
July 1990, which exonerated the petitioner of all charges in Ministry of Agriculture and Food (MAF)
Administrative Case No. 278 and ordered his reinstatement to his former position. Invoking the "no
work, no pay" rule, the Office of the President did not make any award for back salaries.

The petitioner, then Fisheries Regional Director under the then Ministry of Agriculture and Food, was
dismissed from the service on 30 April 1986 pursuant to a decision of the Minister of Agriculture in
MAF Administrative Case No. 278 which found him guilty of the offense of grave misconduct,
oppression and violation of existing Civil Service laws.

From the order of the MAF, the petitioner appealed to the Civil Service Commission (CSC). The
CSC, however, referred the case to the Office of the President since the petitioner was a Presidential
appointee and a Career Executive Officer (CESO) with Rank IV.

On 30 July 1990, the Office of the President issued a Resolution, signed by then Executive
Secretary Catalino Macaraeg, Jr., stating, in its dispositive portion, that

IN VIEW OF ALL THE FOREGOING, the Decision and Order of the Minister of
Agriculture and Food respectively dated April 30, 1986 and August 29, 1986, are
hereby SET ASIDE. Appellant Francisco A. Tan, Jr., is hereby EXONERATED of all
the charges against him. Accordingly, the Department of Agriculture to which
department the BFAR had been transferred, is hereby directed to reinstate Tan to his
former or any equivalent position. Tan, however, is not entitled to payment of back
salaries pursuant to the principle of "no work, no pay." (p. 39, Rollo.)
The petitioner filed a partial motion for reconsideration, praying that he should likewise be granted
back salaries.

In a Resolution, dated 12 January 1993, the Office of the President, through respondent Assistant
Executive Secretary Renato C. Corona, denied petitioner's partial motion for reconsideration for lack
of merit. (p. 47, Rollo.)

Hence, this petition for certiorari, prohibition and mandamus, alleging grave abuse of discretion on
the part of the Office of the President and Renato C. Corona in denying the petitioner's claim for
back salaries. The petitioner also named as respondents the Department of Agriculture, the
Commission on Audit and Andres R. Menguito (the complainant in the administrative case).

The petition has merit.

In rejecting petitioner's claim, the Office of the President has relied on the fact that Section 42 of
Presidential Decree No. 807 (Civil Service Law), unlike its counterpart in the old Civil Service Law,
does not expressly provide for any payment of back salaries to government officials or employees
who are found to have been illegally dismissed and ordered to be thereby reinstated to their former
positions.

Section 42 of P.D. No. 807, however, is really not in point. The provision refers to preventive
suspensions during the pendency of administrative investigations, and it does not cover dismissed
civil servants who are ultimately exonerated and ordered reinstated to their former or equivalent
positions. The rule in the latter instance, just as we have said starting with the case of Cristobal vs.
Melchor (101 SCRA 857), is that when "a government official or employee in the classified civil
service had been illegally dismissed, and his reinstatement had later been ordered,for all legal
purposes he is considered as not having left his office, so that he is entitled to all the rights and
privileges that accrue to him by virtue of the office that he held." Such award of backwages,
however, has since been limited to a maximum period of five (5) years (San Luis vs. CA, 174 SCRA
258).

In this instance, the Solicitor General himself has recommended the grant of the petition for similar
reasons. In addition, he has made the following manifestation:

Public respondents Department of Agriculture and Commission on Audit have

expressed their concurrence to the recommendation of the Office of the Solicitor
General. The Office of the President has likewise expressed no objection to the
Solicitor General's recommendation.

WHEREFORE, the instant petition is hereby GRANTED as prayed for; however, the payment of
back salaries shall be limited to a maximum of five (5) years. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Quiason and Puno, JJ., concur.

Kapunan, J., took no part.

Nocon, J., is on leave.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 114683 January 18, 2000

JESUS C. OCAMPO, petitioner,

vs.
OFFICE OF THE OMBUDSMAN and MAXIMO ECLIPSE, respondents.

BUENA, J.:

This petition for certiorari seeks to nullify the Resolutions of the Ombudsman in OMB-Adm-0-92-0020 dated November 18,
19931 and February 28, 19942 which dismissed petitioner from the service, with forfeiture of benefits and special perpetual
disqualification to hold office in the government or any government-owned or controlled corporation, and which denied the motion
for reconsideration thereof, respectively.

The facts are as follows:

Petitioner is the Training Coordinator of NIACONSULT, INC., a subsidiary of the National Irrigation Administration.

On March 21, 1988, K.N. Paudel of the Agricultural Development Bank of Nepal (ADBN) Mote a letter to NIACONSULT
requesting a training proposal on small-scale community irrigation development. 3

On November 17, 1988, petitioner as the training coordinator of the NIACONSULT, sent a letter-proposal requested by
ABDN.4 Another letter was sent by petitioner on January 31, 1989 to Dr. Peiter Roeloffs of ADBN confirming the availability of
NIACONSULT to conduct the training program and formally requesting advance payment of thirty (30%) percent of the training
fee5 in the amount of US $9,600.00 or P204,960.00.

NIACONSULT conducted the training program for six Nepalese Junior Engineers from February 6 to March 7, 1989. 6ADBN, thru
its representative, Deutsche Gesselschaft Technische Zusummenarbeit (GTZ) Gmbh Technical Cooperation of the Federal
Republic of Germany paid to the petitioner the agreed training fee in two installments of P61,488.00 and P143, 472.00. 7

On April 1, 1991, NIACONSULT, through its president, Wilfredo S. Tiongco, wrote a letter to petitioner demanding the turn-over of
the total training fee paid by ADBN which petitioner personally received. 8 Despite receipt of the letter, petitioner failed to remit the
said amount prompting NIACONSULT through its president, Maximino Eclipse, to file an administrative case before respondent
OMBUDSMAN for serious misconduct and/or fraud or willful breach of trust. 9

Finding enough basis to proceed with the administrative case, the Administrative Adjudication Bureau of the respondent
OMBUDSMAN, on February 17, 1992, issued an order10 requiring petitioner to file his counter-affidavit within ten (10) days from
receipt with a caveat that failure to file the same would be deemed a waiver of his right to present evidence. Despite notice,
petitioner failed to comply with the said order.

A year later, or on March 17, 1993, respondent OMBUDSMAN issued another order 11 giving petitioner another chance to file his
counter-affidavit and controverting evidence. Again, petitioner failed. Thus, on April 14, 1993, private respondent was required to
appear before the OMBUDSMAN to present evidence to support its complaint. 12

Thereafter, on November 18, 1993, respondent OMBUDSMAN issued the assailed Resolution, the decretal portion of which
reads:

Withal, for such dishonesty, untrustworthiness, and conduct prejudicial to the service as established by
overwhelming evidences, it is respectfully recommended that respondent Jesus C. Ocampo be discharged from
the service, with forfeiture of benefits and special perpetual disqualification to hold office in the government or any
government-owned or controlled corporation; without prejudice to any civil action NIACONSULT, Inc., may
institute to recover the amount so retained by the respondent.

SO ORDERED.13

On February 16, 1994 petitioner moved for reconsideration and to re-open the case claiming that he was denied due process in
that the administrative case was resolved on the basis of the complainant's evidences, without affording him the opportunity to
file a counter-affidavit and to present his evidence. Petitioner likewise contends that he was not given access to the records of
the subject transaction vital to his defense and in the preparation of his counter-affidavit despite his verbal requests to the graft
investigator.14

The respondent OMBUDSMAN denied the motion on February 28, 1994.15

Aggrieved, petitioner filed the instant petition basically reiterating his arguments in his motion for reconsideration.

We gave due course to the petition and required the parties to submit their respective memoranda.

While the case is pending, petitioner filed a Manifestation on May 24, 199716 stating that the criminal complaint for estafa and
falsification filed against him based on the same facts or incidents which gave rise to the administrative case, was dismissed by
the Regional Trial Court on February 24, 1997. With the dismissal of the criminal case, petitioner manifests that the
administrative case can no longer stand on its own and therefore should be dismissed. 17

Such manifestation is not well taken.

The dismissal of the criminal case will not foreclose administrative action filed against petitioner or give him a clean bill of health
in all respects. The Regional Trial Court, in dismissing the criminal complaint, was simply saying that the prosecution was unable
to prove the guilt of petitioner beyond reasonable doubt, a condition sine qua non for conviction. The lack or absence of proof
beyond reasonable doubt does not mean an absence of any evidence whatsoever for there is another class of evidence which,
though insufficient to establish guilt beyond reasonable doubt, is adequate in civil cases; this is preponderance of evidence. Then
too, there is the "substantial evidence" rule in administrative proceedings which merely requires such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.18 Thus, considering the difference in the quantum of
evidence, as well as the procedure followed and the sanctions imposed in criminal and administrative proceedings, the findings
and conclusions in one should not necessarily be binding on the other. 19

Going now to the crux of the controversy, petitioner asserts that he was denied the opportunity to be heard.

The essence of due process is an opportunity to be heard. One may be heard, not solely by verbal presentation but also, and
perhaps even many times more creditably and practicable than oral argument, through pleadings. In administrative proceedings,
moreover, technical rules of procedure and evidence are not strictly applied; administrative due process cannot be fully equated
to due process in its strict judicial sense.20
Petitioner has been amply accorded the opportunity to be heard. He was required to answer the complaint against him. In fact,
petitioner was given considerable length of time to submit his counter-affidavit. It took more than one year from February 17,
1992 before petitioner was considered to have waived his right to file his counter-affidavit and the formal presentation of the
complainant's evidence was set. The March 17, 1993 order was issued to give the petitioner a last chance to present his
defense, despite the private respondent's objections. But petitioner failed to comply with the second order. 1wphi1.nt

Thus, petitioner's failure to present evidence is solely of his own making and cannot escape his own remissness by passing the
blame on the graft investigator. While the respondent OMBUDSMAN has shown forbearance, petitioner has not displayed
corresponding vigilance. He therefore cannot validly claim that his right to due process was violated. We need only to reiterate
that a party who chooses not to avail of the opportunity to answer the charges cannot complain of a denial of due process. 21

Petitioner's claim that he was not given any notice of the order declaring him to have waived his right to file his counter-affidavit
and of allowing the private respondent to present evidence ex-parte is unmeritorious.

The orders of respondent OMBUDSMAN requiring petitioner to submit his counter-affidavit and which was admittedly received by
the latter explicitly contain a warning that if no counter-affidavit was filed within the given period, a waiver would be considered
and the administrative proceedings shall continue according to the rules. Thus, respondent OMBUDSMAN need not issue
another order notifying petitioner that he has waived his right to file a counter-affidavit. In the same way, petitioner need not be
notified of the ex-parte hearing for the reception of private respondent's evidence. As such, he could not have been expected to
appear at the ex-parte hearing.

With regard to the petitioner's claim that he made requests for the production of the documents alleged to be material to his
defense, the record is bereft of any proof of such requests. If it were true that the graft investigator did not act on such requests,
petitioner should have filed the proper motion before the respondent OMBUDSMAN for the production of the documents or to
compel the respondent complainant to produce whatever record necessary for his defense. Petitioner did not. It was only after
the respondent OMBUDSMAN issued the assailed resolution of November 18, 1993 that he bewailed the alleged failure of
respondent's graft investigator to require the production of the records of the subject transaction.

The record of this case indisputably shows that petitioner is guilty of dishonesty and conduct prejudicial to the government when
he failed to remit the payment of the training program conducted by NIACONSULT. The evidence presented sufficiently
established that petitioner received the payments of ADBN through its representative, GTZ, Philippines the amount of US
$9,600.00 and that he failed to account this and remit the same to the corporation. All these acts constitute dishonesty and
untrustworthiness.

WHEREFORE, the petition is hereby DENIED for lack of merit. The assailed Resolutions of the respondent OMBUDSMAN are
hereby AFFIRMED.

SO ORDERED.

Bellosillo, Mendoza, Quisumbing and De Leon, Jr., JJ., concur.

Footnotes

1
Annex F, pp. 61-66, Rollo.

2
Annex H, pp. 73-75, Id.
3
Rollo, pp. 31-33.

4
Rollo, pp. 34-42.

5
Id., p. 43.

6
Id., p. 44.

7
See pp. 45-50

1) GTZ Philippine Voucher No. 5166 signed by Mr. Jesus C. Ocampo, indicating that he received
P61,488.00 as 30% deposit for the training.

2) GTZ Philippine Check No. 0227431 for P61,488.00 payable to the Order of Mr. Jesus C. Ocampo.

3) NIACONSULT, Inc. Official Receipt No. 1071 acknowledging payment of P61,488.00.

4) GTZ Voucher no. 5822 signed by Mr. Jesus C. Ocampo showing that he received P143,472.00 as final
payment

5) GTZ Check No. 633554 for P143,472.00 payable to the Order of Mr. Jesus C. Ocampo.

6) NIACONSULT, Inc. Official Receipt No. 1095 acknowledging payment of P143,472.00.

8
Id., p. 134.

9
Annex B, pp. 25-30, Rollo.

10
Annex C, p. 57, Id.

11
Annex D, p. 59, Id.

12
Annex E, p. 60, id.

13
Annex, F, p. 66, Rollo.

14
Annex G, pp. 68-72, Rollo.

15
Annex H, pp. 73-75, Rollo.

16
Pp. 252-253, Rollo.

17
Pp. 254-262, Id.

18
Office of the Court Administrator vs. Ramon G. Enriquez, 218 SCRA 1 [1993].

19
Office of the Court Administrator vs. Matas, 247 SCRA 9, 22-23 [1995].
 20
Concerned Officials of the MWSS vs. Hon. Ombudsman Conrado Vasquez, 240 SCRA 502.

21
Esber vs. Sto. Tomas, 225 SCRA 664.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-8799 August 31, 1956

THE CITY OF MANILA, plaintiff-appellee,

vs.
THE INTER-ISLAND GAS SERVICE, INC., defendant-appellant.

Pedro Lopez for appellant.

City Fiscal Eugenio Angeles and Assistant Fiscal Arsenio Naawa for appellee.

CONCEPCION, J.:

The City of Manila instituted this action for the collection of a sum of money allegedly due from the defendant Inter-Island Gas
Service, Inc., by way of deficiency municipal tax. The main issue is whether liquified flammable gas comes within the purview of
section 1, Group 2, of Ordinance No. 1925 of the City of Manila, as amended by Ordinance No. 3364 thereof, which provides
that:

. . . there shall be paid to the City Treasurer for engaging in any of the business or occupations below enumerated, quarterly
license fees based on gross sales or receipts realized during the preceding quarter, in accordance with the rates herein
prescribed: Provided, however, That a person engaging in any business or occupation for the first time shall pay the initial license
fee based on the probable gross sales of receipts for the first quarter beginning from the date of the opening of the business as
indicated herein for the corresponding business or occupation.

xxx xxx xxx

Group 2. Retail dealers in new (not yet used) merchandise, which dealers are not yet subject to the payment of any municipal
tax, such as:(1) Retail dealers in general merchandise and (2) retail dealers exclusively engaged in the sale of electrical supplies;
sporting goods; office equipment and materials; rice; textile including knitted wares; hardware, including, glassware; cooking
utensils and construction materials; papers; books, including stationary. Both parties stipulated:

"1. That the plaintiff is a municipal corporation created and existing under the laws of the Philippines and that the
defendant is a corporation likewise created by any existing under the laws of the Philippines;

"2. That the defendant sold at retail in the City of Manila from the 4th quarter of 1949 to the a 4th quarter of 1951,
inclusive, cooking appliances and liquified petroleum gas in cylinders in the following amounts:

Period of sales Amount of

 sales

4th quarter 1949 P207,651.53

1st quarter 1950 190,936.92

2nd quarter 1950 188,796.79

3rd quarter 1950 212,542.53

4th quarter 1950 206,696.26

1st quarter 1951 216,346.69

2nd quarter 1951 219,283.45

3rd quarter 1951 184,290.85

4th quarter 1951 191,138.62

"3. That the defendant paid the different amount alleged in paragraph 4 of the complaint corresponding to the quarters
therein stated based on its sales of cooking appliances only;

"4. That the total claim of the plaintiff against the defendant under section 1, Group 2, of Ordinance No. 1925, as last
amended by Ordinance No. 3364 is P11,250.00, based on the defendant's sales alleged in paragraph 2 of the complaint
computed at the rate of P1,250.00 quarterly corresponding to the first, second, third and fourth quarterly of 1951, and the
first quarter of 1952; and

"5. That the defendant has paid the prescribed fees under Ordinance No. 3259 of the City of Manila, 'An Ordinance
prescribing regulations for storage, installations, use and transportation of compressed and liquefied, inflammable gases
other than acetylene, and providing fees therefor", covering the same quarters mentioned in paragraph 4 of the
complaint.

Then the case was submitted for decision, whereupon the Court of First Instance of Manila rendered judgment for the plaintiff,
the dispositive part of which, as amended reads as follows:

Therefore, this Court is of opinion and so holds, that the City Government of Manila has the right to impose tax on
liquefied flammable gas under Ordinance No. 925, as amended by Ordinance No. 3364. And for this reason, the
defendant Inter-Island Gas Service, Inc., is hereby sentenced to pay to the City of Manila the sum of P8,361 as deficiency
tax due from the year 1952, inclusive, including the amount of P50 as surcharge thereon, and the payment of the costs . .
.

The defendant has appealed from this decision and now in maintains that: .

1. The lower court erred in not holding and declaring that the No. 1925 as amended (imposing a tax for purposes of
revenue), does not clearly provided that it applies to the sale of liquified flammable gas.

2. The lower court erred in not holding and declaring that the provisions of section 1, Group 2, of Ordinance No. 1925, as
amended by Ordinance No. 3364, are and clearly within the legislative powers granted to the Municipal Board of Manila,
if said Ordinance is applied to the sale of liquefied flammable gas.

3. That assuming arguendo that under the provision of section 1, Group 2, of Ordinance No. 1925, as last amended by
Ordinance No. 3364, liquefied flammable gas in included, still the lower court erred in not finding and declaring that said
Ordinance No. 1925, as amended, is a percentage tax; hence, the complaint does not state a cause of action because no
allegation has been made that the ordinance in question had previously been approved by the President of the
Philippines.

4. Further assuming arguendo that Ordinance No. 1925, as amended, is valid, yet the lower court erred in not finding that
to apply it to the liquefied gas business of the defendant will constitute double taxation; hence, unconstitutional and void. .

5. The lower court erred in ordering the defendant to pay the City of Manila the sum of P8,861.00 as deficiency tax due
under Ordinance No. 1925, as amended by Ordinance No. 3364, and to pay the costs.

In support of the first two assignments of error appellant cites paragraphs (m) and (o) of section 18 of the Revised Charter of
Manila (Republic Act No. 409) authorizing said city:

"(m) To tax, fix the license fee and regulate the . . . storage and sale of . . . petroleum or any of the products thereof and
of all other highly combustible or explosive materials

xxx xxx xxx

"(o) To tax and fix the license fee on dealers in general merchandise. . . . .

Then appellant argues that liquefied flammable gas is included in said paragraph (m) and, hence, excluded from the connotation
of the word "merchandise," as used in paragraph (o). This argument at first impressed the court, but, upon further reflection, we
are persuaded that it is not decisive on the issue before us. Indeed, although the clause "petroleum or any of the products thereof
and all other said paragraph (m) may indicate the intent of Congress of the Philippines to include liquefied flammable gas within
the purview of said paragraph, it does not follow necessarily that in using the word "merchandise", in Municipal Ordinance No.
1925, as amended, the Municipal Board of Manila intended to convey thereto the restricted meaning allegedly given to the term
"merchandise" in paragraph (o) of Section 18 of its Revised Charter, or to exclude liquefied flammable gas from the operation of
said ordinance. In this connection, it should be noted that the authority of the City of Manila to tax dealers in liquefied flammable
gas under its Revised Charter, is conceded. Accordingly, the question whether the grant of power appears in paragraph (m) or in
paragraph (o) of the aforementioned Section 18, is immaterial to the exercise of said authority.
As already adverted to, the case hinges on the connotation of the term "merchandise" as used in said ordinance, or the interest
of the Municipal Board in connection therewith. Referring to the meaning of said word, Corpus Juris Secundum has the following
to say:

The word "merchandise," employed as a noun, is defined as meaning the objects of commerce; the subjects of
commerce and traffic; whatever is usually bought and sold in trade, or market, or by merchants; goods; ware;
commodities, goods, or wares bought and sold for gain; commodities or goods to trade with; a commercial commodity or
commercial commodities in general.

The term is also defined as meaning things which are ordinarily bought and sold; anything movable, anything customarily
bought and sold for profit; any movable object of trade or traffic; any article which is the object of commerce, or which
may be bought or sold in trade; the staple of a mercantile business; that which is passed from hand to hand by purchase
and sale. (Vol. 57 pp. 1056-1057.)

Inasmuch as, admittedly, liquefied gas may be, and is being, bought and sold in trade, it clearly is a merchandise, and comes
within the purview of the ordinary import of this world. Was it used in this sense in Ordinance No. 1925, as amended, as, in
effect, held by the lower court or did the Municipal Board intend to convey therewith the meaning allegedly given thereto in
paragraph (o) of Section 18 of Republic Act No. 409, as contended by defendant-appellant? We find ourselves unable to accept
the latter view, not only because the former is more in accord with the simple and usual connotation of said term, but, also,
because it appears that said ordinance has not followed the classification made in Section 18 of Republic Act No. 109. Thus, for
instance, although the word "merchandise" appears in paragraph (o) of said Section 18, it is included in Group 2 of said
ordinance, together with electrical supplies, sporting goods, textiles, hardware, including glassware, and cooking utensils, which
are found in paragraph (n) of said Article 18. Moreover, said Group 2 refers to "retail dealers in new (not yet used) merchandise,
which dealers are not yet subject to the payment of any municipal tax, such as: (1) Retail dealers in general merchandise . . . ."
Obviously, the enumeration made in said Group 2 is not all inclusive. It merely illustrates some of the objects the dealers in which
are taxed under its provision. The word "merchandise" as used therein has not restrictive meaning. Said group taxes dealers in
all "new (not yet used) merchandise, which dealers are not yet subject to the payment of any municipal tax." Liquefied flammable
gas is a "new" object of commerce, and hence, merchandise, and, at the time of the passage of said ordinance, dealers therein
were not, as yet, subject to the payment of any municipal tax. In short, the first and second assignments of error are untenable.

Under the third assignment of error, it is claimed that the tax imposed under the ordinance in question is in the nature of a
percentage tax. The schedule of taxes under the aforementioned Group 2 is a follows:

Quarterly
Class Quarterly gross sales
license fee

1. .................... Over to P125,000.00 P1,250.00

2. .................... P100,000.00 to P1,125.00

125,000.00

3. .................... 90,000.00 to 99.999.99 1,000.00

4. .................... 80,000.00 to 89,999.99 900.00

5. .................... 70,000.00 to 79,999.99 800.00

6. .................... 60,000.00 to 69,999.99 700.00

7. .................... 50,000.00 to 59,999.99 600.00

8. .................... 45,000.00 to 49,999.99 500.00

9. .................... 40,000.00 to 44,999.99 450.00

10. .................. 36,000.00 to 39,999.99 400.00

11. .................. 33,000.00 to 35,999.99 360.00

12. .................. 30,000.00 to 32,999.99 330.00

13. .................. 27,000.00 to 29,999.99 300.00

14. .................. 25,000.00 to 27,499.99 275.00

15. .................. 22,000.00 to 24,999.99 250.00

16. .................. 20,000.00 to 22,499.99 225.00

17. .................. 18,700.00 to 20,499.99 205.00

18. .................. 17,200.00 to 18,699.99 187.00

19. .................. 15,500.00 to 17,199.99 172.00

20. .................. 14,100.00 to 15,499.99 155.00

21. .................. 12,700.00 to 14.099.99 141.00

22. .................. 11,500.00 to 12,699.99 127.00

23. .................. 10,500.00 to 11,499.99 115.00

24. .................. 9,500.00 to 10,499.99 105.00

25. .................. 8,700.00 to 9,499.99 95.00

26. .................. 8,000.00 to 8,699.99 87.00

27. .................. 7,200.00 to 7,999.99 80.00

28. ................... 6,300.00 to 7,199.99 72.00

29. ................... 5,500.00 to 6,299.99 63.00

30. ................... 5,000.00 to 5,499.99 55.00

31. ................... 4,500.00 to 4,999.99 50.00

32. ................... 4,400.00 to 4,999.99 45.00

33. ................... 3,500.00 to 3,999.99 40.00

 34. ................... Less than to 3,500.00 35.00

PROVIDED, That retail dealers only rice, whose quarterly sales do not exceed two thousand pesos (P2,000) shall only pay a
quarterly license fee of eighteen pesos (P18). (Appellee's Brief, pp. 2-3.)

This is not a percentage tax. It is a graduated tax, not based on a given ratio between the gross income and the burden imposed
upon the taxpayer.

The fourth assignment of error is even more devoid of merit because: (1) the fees paid by the defendant under Ordinance No.
3259 for the storage, installation, use and transportation of compressed inflammable gases was charged by way of license
fees, in the exercise of the police power of the State, not under its inherent power of taxation; and (2) double taxation is not
prohibited in our Constitution.

Being a mere consequence of the previous assignments of error, the last one needs no discussion.

Wherefore, the decision appealed from is hereby affirmed, with cost against defendant-appellant. It is so ordered.

Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Reyes, J.B.L., and Felix, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 78529 September 17, 1987

BF HOMES, INCORPORATED and PHILIPPINE WATER-WORKS AND CONSTRUCTION, petitioner,

vs.
NATIONAL WATER RESOURCES COUNCIL and THE COURT OF APPEALS, respondent.

FELICIANO, J.:

Petitioners BF Homes, Inc., is a residential subdivision owner-operator and as such, constructed water distribution systems at its
several subdivisions so that residents would have an adequate supply of potable water. Petitioner applied for and was granted a
Certificate of Public Convenience and Necessity in respect of its water distribution system at its Las Pias subdivision. Petitioner
sought authority from the respondent National Water Resources Council on 12 March 1982 to transfer the Certificate of Public
Convenience and Necessity to its co-petitioner, the Philippine Waterworks and Construction Corporation (PWCC). To date, the
application for transfer has yet to be acted upon by the respondent Council.

Petitioner also has a Certificate of Public Convenience and Necessity to operate its water distribution system at B.F. Homes
Paraaque. On 25 June 1985, petitioner sought authority from respondent Council to increase the water rates at B.F. Homes
Paraaque. Petitioner alleges that the increase in rates was not opposed by the residents of that subdivision who, as a matter of
fact, sought immediate approval so that the increased rates would enable petitioner to meet the power bills from the Manila
Electric Company, power being essential for operation of the water distribution system. Respondent Council similarly failed to
date to act upon this application to increase rates.

Petitioner filed a petition for mandamus with the respondent appellate court to compel respondent Council to act on the
application for transfer of the franchise at Las Pias to PWCC and also to act upon the application for authority to increase water
rates. Respondent appellate court, in two Resolutions dated respectively 16 February 1987 and 28 May 1987 in C.A.-G.R. SP
No. 09135, dismissed the petition for mandamus upon the ground that mandamus will not issue to compel the respondent
Council to act on the matters pending before it, since such acts are not ministerial in nature.

The respondent appellate court feR into reversible error here. It is established doctrine that mandamus will not issue to control
the performance of discretionary, non-ministerial, duties, that is, to compel a body discharging duties involving the exercise of
discretion to act in a particular way or to approve or disapproue a specific application In Mackenzie Pio vs. Hon. Pio R. Marcos,
etc. et al., 1 this Court, through then Mr. Justice Teehankee, said:

The petition must fail because under the circumstances of record, the issuance of the injunction sought is
manifestly not a ministerial duty, viz a duty which is so clear and specific as to leave no room for the exercise of
discretion in its performance and its discharge requires neither the exercise of official discretion nor judgment.
The issuance of a writ of discretion and mandamus will not lie to compel the performance of such discretionary
function. It is an established principle that the writ of mandamus may not be issued to control the discretion of a
judge or to compel him to decide a case or a motion pending before him in a particular way the writ being
available only to compel him to exercise his discretion or his jurisdiction. 2 (Emphasis supplied)

Again, in Philippine Airlines Employees Associations vs. Philippine Airlines, Inc., 3 Mme. Justice Melencio-Herrera wrote:

... But while certiorari is a proper procedural remedy, this Court cannot compel respondent Court to lift its Order of
December 6, 1969 or to reconsider the same, for this involves the exercise of judgment and discretion. It can only
compel respondent Court to act on the pending Motions one way or the other. It is an established principle that
the Writ of mandamus may not be issued to control the discretion of a Judge or to compel him to decide a case or
motion in a particular way the Writ being available only to compel him to exercise his discretion or
jurisdiction. The law concedes to Judges and Courts the right to decide questions according to their own
judgment and understanding of the law. 4 (Emphasis supplied)

Petitioner, however, does not here seek to compel respondent Council specifically to approve petitioner's applications pending
before it. What petitioner seeks, and this it is entitled to, is a writ that would require respondent Council to consider and deliberate
upon the applications before it, examining in that process whatever evidence lies before it and to act accordingly, either
approving or disapproving the applications before it, in accordance with applicable law and jurisprudence and in the best interest
of the community involved. Per the records of this case, respondent Council has failed, for unexplained reasons, to exercise its
discretion and to act, one way or the other, on the applications of petitioners for a prolonged period of time imposing in the
process substantial prejudice or inconvenience upon the many hundreds of families living in the two subsidivisions involved. It
appears, further, that respondent Council failed to inform petitioner of a supposed need for additional data concerning petitioner
PWCC.

WHEREFORE, the Petition for Review is GRANTED due course and the Resolutions dated 16 February 1987 and 28 May 1987
of the respondent appellate court are hereby set aside. Considering the need for prompt action, the Court resolved itself to issue
directly a Writ of mandamus against the respondent Council commanding it forthwith to act upon petitioner's Application for
Increase in Water Rates in BF Homes Paraaque (NWRC Case No. 78-037) and on petitioner's Application for Transfer of
Certificate of Public Necessity and Convenience in B.F. Homes Las Pias (NWRC Case No. 82-161), No pronouncement as to
costs. This Resolution is immediately executory.

SO ORDERED.
Fernan (Chairman), Gutierrez, Jr., Bidin and Cortes, JJ., concur.

Footnotes

1 56 SCRA 726 (1974).

2 56 SCRA at 746.

3 111 SCRA 215 (1982).

4 111 SCRA at 219-220.

SECOND DIVISION

[G.R. No. 123045. November 16, 1999]

DEMETRIO R. TECSON, petitioner, vs. SANDIGANBAYAN AND PEOPLE OF THE

PHILIPPINES, respondents.

DECISION
QUISUMBING, J.:

This petition for review on certiorari, under Rule 45 of the Rules of Court, seeks to nullify the Decision dated June 30,
1995 and the Resolution dated December 20, 1995 of the Sandiganbayan, First Division, in Criminal Case No.
18273. Petitioner was found guilty of violating Section 3[c] of R.A. No. 3019, in the assailed decision which reads as
follows:

WHEREFORE, the Court finds Demetrio Tecson y Robles guilty beyond reasonable doubt of the crime
defined in Section 3[c] of Republic Act 3019 and charged in the Information. Accordingly, the Court imposes
upon him the penalty of imprisonment of SIX (6) YEARS and ONE (1) MONTH, and perpetual
disqualification from public office. No civil indemnity is awarded for the reason that Tecson and Mrs.
Salvacion D. Luzana entered into a compromise agreement waiving his/her claims against the other.

So Ordered.[1]

Petitioner was, at the time of the commission of the offense charged in the Information, the Municipal Mayor of
Prosperidad, Agusan del Sur.
 Private complainant before the Sandiganbayan, Mrs. Salvacion Luzana, is a resident of Poblacion, Prosperidad, Agusan
del Sur. She is a neighbor of the petitioner. She claims to be a housewife who occasionally dabbles in farming.[2]
The antecedent facts, which gave rise to the instant case, were synthesized by the Sandiganbayan as follows:

In the last week of September 1989, upon the offer of Tecson, he and Mrs. Luzana agreed to engage in an
investment business. They would sell tickets at P100.00 each which after 30 days would earn P200.00 or
more.She would buy appliances and cosmetics at a discount, with the use of the proceeds of the sales of
tickets, and resell them. No other details were disclosed on how the business would operate, and Tecson does
not appear to have contributed any monetary consideration to the capital. On September 27, 1989, they began
selling tickets.

Tecson also acted as agent selling tickets. He got on that day early in the morning two booklets of tickets, for
which he signed the covers of the booklets to acknowledge receipt. Before noon of the same day he returned
after having already sold 40 tickets in the amount of P4,000.00, bringing with him a Mayors Permit in the
name of Mrs. Luzana for their business called LD Assurance Privileges. He asked for a cash advance of
P4,000.00 which he would use during the fiesta on September 29, 1989, and he would not release the Mayors
Permit unless the cash advance was given him. Mrs. Luzana reluctantly acceded, saying that it was not the due
date yet, so he was getting the cash advances on his share. Tecson signed for the cash advance.

On October 3, 1989, Mrs. Luzana secured a Business Permit in accordance with the instructions of
Tecson. The permit was in her name but the same was for the operation of Prosperidad Investment and Sub-
Dealership, the new name of the business. In the session of the Sangguniang Bayan of Prosperidad, Agusan del
Sur on October 17, 1989 presided over by Tecson, Resolution No. 100 was passed revoking the business
permit at the instance of the Provincial Director of the Department of Trade and Industry. [3]

With the revocation of her business permit, private complainant below filed an administrative case against petitioner, for
violation of Section 3 [c], R.A. No. 3019 and Section 60 of B.P. Blg. 337 (then Local Government Code) with the
Department of Interior and Local Government (DILG). The complaint was docketed as Adm. Case No. SP-90-01 and
referred to the Sangguniang Panlalawigan of Agusan del Sur for appropriate action.
Not content with having instituted administrative proceedings, private complainant below also filed a civil case against
petitioner for damages with the Regional Trial Court, Branch 6, of Prosperidad, Agusan del Sur.This action was docketed as
Civil Case No. 716.
A complaint was likewise filed with the Ombudsman for violation of R.A. No. 3019, otherwise known as the Anti-Graft
and Corrupt Practices Act. This complaint was docketed as OMB Case No. 3-8-02919. It was subsequently referred to the
Sandiganbayan, which took jurisdiction. The Information filed on October 28, 1992 reads:

That on or about September 23, 1989, in the Municipality of Prosperidad, Province of Agusan del Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer,
being then the Municipal Mayor of Prosperidad, Agusan del Sur, while in the performance of his
administrative and official functions and committing the offense in relation to his office, did then and there
willfully, unlawfully, and criminally request and receive for his benefit the amount of P4,000.00, for and in
consideration of the issuance of a permit to operate an investment business, in favor of one Salvacion Luzana,
a person for whom the accused has in fact received and obtained a mayors permit or license.

Contrary to law.[4]

On July 29, 1991, the Sangguniang Panlalawigan of Agusan del Sur dismissed the administrative case.
On October 28, 1991, a compromise agreement was reached between the litigants in Civil Case No. 716. The trial court
approved the same on December 6, 1991.
On November 3, 1992, the Sandiganbayan issued an order for petitioners arrest. He was immediately apprehended, but
after posting a property bond on December 2, 1992, was released on provisional liberty.
On February 23, 1993, Tecson was arraigned with the assistance of counsel de parte. He entered a plea of not guilty.
Trial then proceeded on the merits.
On June 30, 1995, the Sandiganbayan, First Division rendered the assailed decision convicting appellant of violating
R.A. No. 3019. Petitioner seasonably filed a motion for reconsideration. The respondent court denied the same in its
resolution dated December 20, 1995.
Hence, this instant petition. Petitioner contends that:

THE RESPONDENT COURT/SANDIGANBAYAN (1st DIVISION) GRAVELY ABUSED ITS

DISCRETION, TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION

A- IN RULING UNREASONABLY THAT THE GUILT OF THE ACCUSED HAD BEEN PROVEN BEYOND
REASONABLE DOUBT DESPITE THE CLEAR AND CONVINCING TESTIMONY OF THE NBI EXPERT
SHOWING THAT THE DOCUMENTS PRESENTED BY COMPLAINANTS AND SUBJECTED FOR
EXAMINATION BY NBI ARE DIFFERENT FROM THE HANDWRITING OF THE ACCUSED, AND THEREFORE
FABRICATED.
B- IN PROCEEDING WITH THE TRIAL AND CONVICTION DESPITE THE EXISTENCE OF JUDGMENT OF
ACQUITTAL RENDERED BY THE SANGGUNIANG PANLALAWIGAN EXONERATING THE ACCUSED.
C- IN IGNORING THE DOCTRINE OF RES JUDICATA AND THE CONSTITUTIONAL PROVISIONS OF DOUBLE
JEOPARDY.[5]
Otherwise stated, the issues are:
(1) Whether or not the decision of the Sangguniang Panlalawigan exonerating the accused serves as a bar by prior judgment to
the decision of the Sandiganbayan;
(2) Whether or not there was a violation of the Constitutional right of the accused against double jeopardy; and
(3) Whether or not the guilt of the petitioner was proven beyond reasonable doubt.
The issues shall be discussed in seriatim.
Anent the first issue, petitioner contends that the dismissal of the administrative case before the Sangguniang
Panlalawigan of Agusan del Sur is conclusive and binding upon the parties. Relying on our ruling in B.F. Goodrich
Philippines, Inc. v. Workmens Compensation Commission,[6] he theorizes that the rule, which prohibits the reopening of
matters already determined by competent judicial authority, applies to quasi-judicial bodies or administrative offices. Having
been exonerated by the Sangguniang Panlalawigan of Agusan del Sur in the administrative case, he now submits the same
is res judicata and thus bars the Sandiganbayan from hearing his case.
Petitioners theory has no leg to stand on. First, it must be pointed out that res judicata is a doctrine of civil law.[7] It thus
has no bearing in the criminal proceedings before the Sandiganbayan. Second, it is a basic principle of the law on public
officers that a public official or employee is under a three-fold responsibility for violation of duty or for a wrongful act or
omission. This simply means that a public officer may be held civilly, criminally, and administratively liable for a wrongful
doing. Thus, if such violation or wrongful act results in damages to an individual, the public officer may be
held civilly liable to reimburse the injured party. If the law violated attaches a penal sanction, the erring officer may be
punished criminally. Finally, such violation may also lead to suspension, removal from office, or
other administrative sanctions. This administrative liability is separate and distinct from the penal and civil liabilities. Thus,
the dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar
acts, which were the subject of the administrative complaint. [8] We conclude, therefore, that the decision of the Sangguniang
Panlalawigan of Agusan del Sur exonerating petitioner in Administrative Case No. SP 90-01 is no bar to the criminal
prosecution before the Sandiganbayan.
As to the amicable settlement in Civil Case No. 716 with the Regional Trial Court, Branch 6, of Prosperidad, Agusan
del Sur, it is settled that a complaint for misconduct, malfeasance or misfeasance against a public officer or employee cannot
just be withdrawn at any time by the complainant. This is because there is a need to maintain the faith and confidence of the
people in the government and its agencies and instrumentalities. [9] The inescapable conclusion, therefore, is that the order of
the trial court dismissing Civil Case No. 716 did not bar the proceedings before the Sandiganbayan.
Regarding the second issue, petitioner contends that being tried before the Sandiganbayan violated his constitutional
protection against double jeopardy since the Sangguniang Panlalawigan of Agusan del Sur had already cleared him of all
charges.
Article III, Section 21 of the Constitution provides:

No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and
an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Double jeopardy attaches only: (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4)
when a valid plea has been entered; and (5) when the defendant was acquitted or convicted or the case was dismissed or
otherwise terminated without the express consent of the accused. [10] None of the foregoing applies to the hearings conducted
by the Sangguniang Panlalawigan of Agusan del Sur in Adm. Case No. SP 90-01. It must be stressed that the said
proceedings were not criminal, but administrative in nature. Hence, double jeopardy will not lie.
With respect to the third issue, petitioner argues that the Sandiganbayan erred in merely relying upon the alleged
positive testimony of the prosecution witnesses when it rendered the judgment of conviction against him.He theorizes that
such testimony failed to prove his guilt beyond reasonable doubt. He further contends that it was error for the respondent
court to ignore the findings and conclusions of the NBI handwriting expert, especially as of the nine standard signatures,
five were not established to be genuine signatures. He submits that the Sandiganbayan should have applied the rule of falsus
in uno, falsus in omnibus in considering the documentary evidence against him.
Section 3 of R.A. No. 3019 states:

In addition to acts or omissions of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and hereby declared to be unlawful:
 xxx

c. Directly or indirectly requesting or receiving any gift, present, or other pecuniary or material benefit, for
himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or
obtained, or will secure or obtain, any government permit or license in consideration for the help given or to
be given, without prejudice to Section thirteen of this Act.

The crime charged has four elements, namely:

(1) The accused is a public officer;
(2) That in any manner or capacity he secured or obtained, or would secure or obtain, for a person any government permit or
license;
(3) That he directly or indirectly requested or received from said person any gift, present or other pecuniary or material
benefit for himself or for another; and
(4) That he requested or received the gift, present or other pecuniary or material benefit in consideration for the help given or
to be given.
As correctly pointed out by the Sandiganbayan, all of the aforementioned elements concur in the instant case. Its
findings on this concurrence are as follows:

First, Tecson was in September 1989 a public officer, being then the Municipal Mayor of Prosperidad, Agusan
del Sur.

Second, in his official capacity as Mayor, he signed and issued on September 27, 1989, a Mayors Permit to
and in the name of Mrs. Luzana for their investment business in which he does not appear to have made any
contribution to the capital.

Third, before he released the Mayors Permit to Mrs. Luzana, he requested and received on that same day,
September 27, 1989, at about 11:00 a.m., the amount of P4, 000.00 to be used by him in the fiesta to be held
on September 29, 1989.

And, fourth, Tecson requested and received the amount of P4, 000.00 as cash advance in consideration of the
help he gaveviz, issuance of Mayors Permit which he would not deliver to Mrs. Luzana unless she acceded to
his request. Although Tecson expected to have a share in the profits of the business as partner of Mrs. Luzana,
the same was not yet due. In fact, there was as yet no profits to speak of, for they began operating only in the
morning of September 27, 1989, the very day the cash advance was requested and received. [11]

The Supreme Court is not a trier of facts[12] and the factual findings of the Sandiganbayan are conclusive upon the
Supreme Court. The exceptions are: (1) where the conclusion is a finding grounded entirely on speculation, surmise and
conjectures; (2) where the inference made is manifestly mistaken; (3) where there is grave abuse of discretion; (4) where the
judgment is based on misapprehension of facts, and the findings of fact of the Sandiganbayan are premised on the absence
of evidence and are contradicted by evidence on record. [13] We have meticulously scrutinized the records of this case and find
that petitioner has shown no cause for this Court to apply any of the foregoing exceptions. We find that the evidence on
record amply supports the findings and conclusions of the respondent court.
 Petitioners assault on the credibility of the prosecution witnesses is unavailing. It is a time-tested doctrine that the trial
courts assessment of the credibility of a witness is entitled to great weight and is even conclusive and binding upon appellate
courts.[14] The Supreme Court will not interfere with the trial courts assessment of the credibility of the witnesses, absent any
indication or showing that the trial court has overlooked some material facts or has gravely abused its discretion. [15] Absent a
showing that the prosecution witnesses were actuated by any improper motive, their testimony is entitled to full faith and
credit.[16] Recourse to the records shows that no error of law or abuse of discretion was committed by the respondent court
when it gave credence to the positive testimony of the prosecutions witnesses as opposed to petitioners bare denials. Denial,
like alibi, is a weak defense, which becomes even weaker in the face of positive testimony by prosecution witnesses.
[17]
Denial is a self-serving negative evidence that cannot be given greater weight than the declaration of credible witnesses
who testified on affirmative matters.[18] Time-tested is the rule that between the positive assertions of prosecution witnesses
and the negative averments of the accused, the former indisputably deserves more credence and is entitled to greater
evidentiary weight.[19]
With regards the NBI experts testimony, the respondent court found that:

[T]he function of a handwriting expert witness is to place before the court data upon which the court can form
its own opinion. The value of the opinions of experts on handwritings depends largely upon the ground upon
which they base their opinions and clearness with which they can demonstrate their correctness. So that in
order that opinions of experts may have weight, the experts should go into the details of their examinations of
the writings which they have compared.

In this case Cruz was not asked to testify on the grounds, data or details on which he based his conclusion,
except generally that the questioned signatures were written in a slow drawn manner while the standard
signatures were executed in a free and continuous manner and that there is a pen stop in the questioned
signatures in the letter s. He did not testify on other different characteristics such as pressure of the pen, loops
in the strokes, general alignment, structural formation, height of the letters, whether the letters were standing,
slanting forward or backward, etc. His testimony is therefore not of much help in determining the genuineness
of the questioned signatures.[20]

Given these circumstances, petitioners reliance on the doctrine of falsus in uno, falsus in omnibus will be
unavailing. The maxim is a rule of evidence. In affirming a rebuttable presumption of fact, the trier of facts, must consider
all the evidence, other than that found to be false and it is his duty to give effect to so much of it, if any, as found to be true.
[21]
The rule is merely permissive and not mandatory.[22] It does not relieve the trier of facts from passing on credibility of the
whole testimony or evidence presented or excuse him from weighing the whole of the testimony or evidence. [23] In the instant
case, the records show that the Sandiganbayan, as the trier of facts, considered the entirety of the evidence against appellant
and the latters conviction was not based solely on the genuineness of the signatures testified to by the NBI expert. The
elements of the offense charged having been proven beyond reasonable doubt, petitioners conviction must therefore stand.
WHEREFORE, the instant petition is DENIED, and the assailed Decision and Resolution of the Sandiganbayan in
Criminal Case No. 18273 are AFFIRMED. Costs against petitioner.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.
[1]
Records, p. 192.
[2]
TSN, February 7, 1994, p. 3.
[3]
Rollo, pp. 36-37.
[4]
Records, p.1.
[5]
Rollo, p. 9.
[6]
159 SCRA 355 (1988).
[7]
Epstein v. Soskin, 86 Misc. Rep. 94, 148 N.Y.S. 323, 324.
[8]
Paredes, Jr. v. Sandiganbayan, Second Division, 252 SCRA 641, 657 (1996).
[9]
Estreller v. Manatad, Jr., 268 SCRA 608, 616 (1997).
[10]
People v. Leviste, 255 SCRA 238, 249 (1996); Dela Rosa v. Court of Appeals, 253 SCRA 499, 506 (1996).
[11]
Records, pp. 189-190.
[12]
Macapagal v. Court of Appeals, et al., G.R. No. 110610, October 8, 1998, p. 8; Silverio v. Court of Appeals, et al., G.R. No. 113851, October 8,
1998, p. 8.
[13]
Pareo v. Sandiganbayan, 256 SCRA 242, 265 (1996).
[14]
People v. Barredo, G.R. No. 122850, October 7, 1998, p. 11.
[15]
People v. Gado, G.R. No. 129556, November 11, 1998, p. 4.
[16]
Amper v. Sandiganbayan, 279 SCRA 434, 441 (1997).
[17]
People v. Lapay, et al., G.R. No. 123072, October 14, 1998, pp. 20-21.
[18]
People v. Carizo, 233 SCRA 687, 701 (1994).
[19]
Abadilla v. Tabiliran, Jr., 249 SCRA 447, 464 (1995).
[20]
Records, pp. 186-187.
[21]
Levine Bros, v. Mantell, 30 W.Va. 156, 111 SE 501; Shecil v. United States, 226 F. 184.
[22]
Bankers Health & Life Ins. Co. v. Nichols, 44 Ga. App. 536, 162 SE 161.
[23]
State v. Willard, 346 Mo. 773, 142 SW2d 1046, 1047.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 91391 January 24, 1991

FRANCISCO I. CHAVEZ, in his capacity as Solicitor General, petitioner

vs.
THE HON. SANDIGANBAYAN (First Division) and JUAN PONCE ENRILE, respondents.
Ponce Enrile, Cayetano Reyes & Manalastas for private respondent.

GUTIERREZ, JR., J.:

The petitioner challenges the resolutions dated June 8, 1989 and November 2, 1989 of the Sandiganbayan issued in Civil Case
No. 0033 which granted the motion of private respondent Juan Ponce Enrile, one of the defendants in the civil case, to implead
the petitioner as additional party defendant in Enrile's counterclaim in the same civil case and denied the petitioner's motion for
reconsideration.

On July 31, 1987, the Republic of the Philippines, through the Presidential Commission on Good Government (PCGG) with the
assistance of Solicitor General Francisco Chavez filed with the respondent Sandiganbayan a complaint docketed as Civil Case
No. 0033 against Eduardo Cojuangco, Jr. and Juan Ponce Enrile, among others, for reconveyance, reversion and accounting,
restitution and damages.

After the denial of his motion to dismiss, respondent Enrile filed his answer with compulsory counterclaim and cross-claim with
damages.

The Republic filed its reply to the answer and motion to dismiss the counterclaim. The motion was opposed by respondent Enrile.

On January 30, 1989, respondent Sandiganbayan issued a resolution, to wit:

The resolution of the Motion to Dismiss the Counterclaim against the Plaintiff government is deferred until after trial, the
grounds relied upon not appearing to be indubitable.

On the matter of the additional parties (Solicitor General Chavez, Ex-PCGG Chairman Diaz, former Commissioners
Doromal, Rodrigo, Romero and Bautista), the propriety of impleading them either under Sec. 14, Rule 6 or even under
Sec. 12 as third-party defendant requires leave of Court to determine the propriety thereof. No such leave has been
sought. Consideration thereof cannot be entertained at this time nor may therefore, the Motion to Dismiss the same be
considered. (Rollo, p. 329; Annex "H", Petition)

Respondent Enrile then requested leave from the Sandiganbayan to implead the petitioner and the PCGG officials as party
defendants for lodging this alleged "harassment suit" against him.

The motion was granted in a resolution dated June 8, 1989, to wit:

In respect to defendant Juan Ponce Enrile's Manifestation and Motion dated February 23, 1989, praying for leave to
implead additional parties to his counterclaim, the Court, finding reason in the aforesaid Manifestation and Motion, grants
leave to implead the defendants named in the counterclaim and admits defendant Juan Ponce Enrile's answer with
counterclaim.

This is without prejudice to the defenses which said defendants may put forth individually or in common, in their personal
capacities or otherwise. (Rollo, p. 27)

In a later resolution dated November 2, 1989, respondent Sandiganbayan denied a motion to reconsider the June 8, 1989
resolution. The dispositive portion of the resolution states:
 WHEREFORE, the Motions for Reconsideration of the Solicitor General and former PCGG officials Ramon Diaz, Quintin
Doromal, Orlando Romero, Ramon Rodrigo and Mary Concepcion Bautista are denied, but, considering these motions as
in the nature of motions to dismiss counterclaim/answers, resolution of these motions is held in abeyance pending trial on
the merits. (Rollo, p. 31)

Thereafter, all the PCGG officials filed their answer to the counterclaims invoking their immunity from suits as provided in Section
4 of Executive Order No. 1. Instead of filing an answer, the petitioner comes to this Court assailing the resolutions as rendered
with grave abuse of discretion amounting to lack of jurisdiction.

The lone issue in this petition is the propriety of impleading the petitioner as additional party defendant in the counterclaim filed
by respondent Enrile in Civil Case No. 0033.

It may be noted that the private respondent did not limit himself to general averments of malice, recklessness, and bad faith but
filed specific charges that then PCGG Chairman Jovito Salonga had already cleared the respondent and yet, knowing the
allegations to be false, the petitioner still filed the complaint. This can be gleaned from excerpts found in respondent Enrile's
Answer with Compulsory Counterclaim and Cross-Claim:

xxx xxx xxx

Defendant-in-counterclaim Francisco Chavez was the Solicitor General who assisted the PCGG in filing and maintaining
the instant Complaint against Defendant. As the incumbent Solicitor General, he continues to assist the PCGG in
prosecuting this case.

He is sued in his personal and official capacities.

On or about October 1986, the PCGG, speaking through the then Chairman, now Senate President, Hon. Jovito R.
Salonga, found and declared that "not one of the documents left by then President and Mrs. Ferdinand E. Marcos
including the 2,300-page evidence turned over to the PCGG by the US State Department implicates Enrile." Chairman
Salonga stressed that in view of the PCGG's findings, he refused to yield to the "pressure" exerted on him to prosecute
Defendant.

xxx xxx xxx

Notwithstanding the findings of the PCGG that there was absolutely no evidence linking Defendant to the illegal activities
of former President and Mrs. Ferdinand E. Marcos, the PCGG, this time composed of Chairman Ramon Diaz, the
Commissioners Quintin Doromal, Ramon Rodrigo, Orlando Romero and Mary Concepcion Bautista, filed the Complaint
against Defendant, among others, on or about 22 July 1987.

Defendant has reasons to believe, and so alleges that Chairman Diaz, and Commissioners Doromal, Rodrigo, Romero
and Bautista ordered, authorized, allowed or tolerated the filing of the utterly baseless complaint against Defendant.

Solicitor General Francisco Chavez assisted or cooperated in, or induced or instigated, the filing of this harassment suit
against Defendant.

In so ordering, authorizing, allowing and tolerating the institution of the action against Defendant, all the aforenamed
officers, with malice and in evident bad faith, and with grave abuse of power and in excess of their duty and authority,
unjustly and unlawfully obstructed, defeated, violated, impeded or impaired the constitutional rights and liberties of
Defendant . . . . (Rollo, pp. 260-262)

On the other hand, the petitioner submits that no counter-claim can be filed against him in his capacity as Solicitor General since
he is only acting as counsel for the Republic. He cites the case of Borja v. Borja, 101 Phil. 911 [1957] wherein we ruled:

. . . The appearance of a lawyer as counsel for a party and his participation in a case as such counsel does not make him
a party to the action. The fact that he represents the interests of his client or that he acts in their behalf will not hold him
liable for or make him entitled to any award that the Court may adjudicate to the parties, other than his professional fees.
The principle that a counterclaim cannot be filed against persons who are acting in representation of another such as
trustees in their individual capacities (Chambers v. Cameron, 2 Fed. Rules Service, p. 155; 29 F. Supp. 742) could be
applied with more force and effect in the case of a counsel whose participation in the action is merely confined to the
preparation of the defense of his client. Appellant, however, asserted that he filed the counterclaim against said lawyer
not in his individual capacity but as counsel for the heirs of Quintin de Borja. But as we have already stated that the
existence of a lawyer-client relationship does not make the former a party to the action, even this allegation of appellant
will not alter the result We have arrived at (at pp. 924-925)

Thus, the petitioner argues that since he is simply the lawyer in the case, exercising his duty under the law to assist the
Government in the filing and prosecution of all cases pursuant to Section 1, Executive Order No. 14, he cannot be sued in a
counterclaim in the same case.

Presiding Justice Francis Garchitorena correctly observed that there is no general immunity arising solely from occupying a
public office.

The general rule is that public officials can be held personally accountable for acts claimed to have been performed in connection
with official duties where they have acted ultra vires or where there is a showing of bad faith. We ruled in one case:

A number of cases decided by the Court where the municipal mayor alone was held liable for back salaries of, or
damages to dismissed municipal employees, to the exclusion of the municipality, are not applicable in this instance.
In Salcedo v. Court of Appeals (81 SCRA 408 [1978]) for instance, the municipal mayor was held liable for the back
salaries of the Chief of Police he had dismissed, not only because the dismissal was arbitrary but also because the
mayor refused to reinstate him in defiance of an order of the Commissioner of Civil Service to reinstate.

In Nemenzo v. Sabillano (25 SCRA 1 [1968]), the municipal mayor was held personally liable for dismissing a police
corporal who possessed the necessary civil service eligibility, the dismissal being done without justifiable cause and
without any administrative investigation.

In Rama v. Court of Appeals (G.R. Nos. L-44484, L-44842, L-44591, L-44894, March 16 1987), the governor, vice-
governor, members of the Sangguniang Panlalawigan, provincial auditor, provincial treasurer and provincial engineer
were ordered to pay jointly and severally in their individual and personal capacity damages to some 200 employees of the
province of Cebu who were eased out from their positions because of their party affiliations. (Laganapan v. Asedillo, 154
SCRA 377 [1987])

Moreover, the petitioner's argument that the immunity proviso under Section 4(a) of Executive Order No. 1 also extends to him is
not well-taken. A mere invocation of the immunity clause does not ipso facto result in the charges being automatically dropped.

In the case of Presidential Commission on Good Government v. Pea (159 SCRA 556 [1988]) then Chief Justice Claudio
Teehankee, added a clarification of the immunity accorded PCGG officials under Section 4(a) of Executive Order No. 1 as
follows:

With respect to the qualifications expressed by Mr. Justice Feliciano in his separate opinion, I just wish to point out two
things: First, the main opinion does not claim absolute immunity for the members of the Commission. The cited section of
Executive Order No. 1 provides the Commission's members immunity from suit thus: "No civil action shall lie against the
Commission or any member thereof for anything done or omitted in the discharge of the task contemplated by this
 order." No absolute immunity like that sought by Mr. Marcos in his Constitution for himself and his subordinates is herein
involved. It is understood that the immunity granted the members of the Commission by virtue of the unimaginable
magnitude of its task to recover the plundered wealth and the State's exercise of police power was immunity from liability
for damages in the official discharge of the task granted the members of the Commission much in the same manner that
judges are immune from suit in the official discharge of the functions of their office . . . " (at pp. 581-582)

Justice Florentino P. Feliciano stated in the same case:

It may be further submitted, with equal respect, that Section 4 (a) of Executive Order No. 1 was intended merely to
restate the general principle of the law of public officers that the PCGG or any member thereof may not be held civilly
liable for acts done in the performance of official duty, provided that such member had acted in good faith and within the
scene of his lawful authority. It may also be assumed that theSandiganbayan would have jurisdiction to determine
whether the PCGG or any particular official thereof may be held liable in damages to a private person injured by acts of
such manner. It would seem constitutionally offensive to suppose that a member or staff member of the PCGG could not
be required to testify before the Sandiganbayan or that such members were exempted from complying with orders of this
Court. (at pp. 586- 587)

Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any
other official of the Republic. (id., at page 586)

Where the petitioner exceeds his authority as Solicitor General acts in bad faith, or, as contended by the private respondent,
"maliciously conspir(es) with the PCGG commissioners in persecuting respondent Enrile by filing against him an evidently
baseless suit in derogation of the latter's constitutional rights and liberties" (Rollo, p. 417), there can be no question that a
complaint for damages may be filed against him. High position in government does not confer a license to persecute or
recklessly injure another. The actions governed by Articles 19, 20, 21, and 32 of the Civil Code on Human Relations may be
taken against public officers or private citizens alike. The issue is not the right of respondent Enrile to file an action for damages.
He has the right. The issue is whether or not that action must be filed as a compulsory counterclaim in the case filed against him.

Under the circumstances of this case, we rule that the charges pressed by respondent Enrile for damages under Article 32 of the
Civil Code arising from the filing of an alleged harassment suit with malice and evident bad faith do not constitute a compulsory
counterclaim. To vindicate his rights, Senator Enrile has to file a separate and distinct civil action for damages against the
Solicitor General.

In the case of Tiu Po v. Bautista, (103 SCRA 388 [1981]), we ruled that damages claimed to have been suffered as a
consequence of an action filed against the petitioner must be pleaded in the same action as a compulsory counterclaim. We were
referring, however, to a case filed by the private respondent against the petitioners or parties in the litigation. In the present case,
the counterclaim was filed against the lawyer, not against the party plaintiff itself.

To allow a counterclaim against a lawyer who files a complaint for his clients, who is merely their representative in court and not a
plaintiff or complainant in the case would lead to mischievous consequences.

A lawyer owes his client entire devotion to his genuine interest, warm zeal in the maintenance and defense of his rights and the
exertion of his utmost learning and ability. (See Agpalo, Legal Ethics [1980] p. 147 citing Javier v. Cornejo, 63 Phil. 293 [1936]; In
re Tionko, 43 Phil. 191 [1922]; In re: Atty. C. T. Oliva, 103 Phil. 312 [1958]; Lualhati v. Albert, 57 Phil. 86 [1932]; Toguib v. Tomol,
Jr., G.R. Adm. Case No. 554, Jan. 3, 1969; People v. Macellones, 49 SCRA 529 [1973]; Tan Kui v. Court of Appeals, 54 SCRA
199 [1973]). A lawyer cannot properly attend to his duties towards his client if, in the same case, he is kept busy defending
himself.

The problem is particularly perplexing for the Solicitor General. As counsel of the Republic, the Solicitor General has to appear
1wphi1

in controversial and politically charged cases. It is not unusual for high officials of the Government to unwittingly use shortcuts in
the zealous desire to expedite executive programs or reforms. The Solicitor General cannot look at these cases with indifferent
neutrality. His perception of national interest and obedience to instructions from above may compel him to take a stance which to
a respondent may appear too personal and biased. It is likewise unreasonable to require Government Prosecutors to defend
themselves against counterclaims in the very same cases they are prosecuting.

As earlier stated, we do not suggest that a lawyer enjoys a special immunity from damage suits. However, when he acts in the
name of a client, he should not be sued on a counterclaim in the very same case he has filed only as counsel and not as a party.
Any claim for alleged damages or other causes of action should be filed in an entirely separate and distinct civil action.

WHEREFORE, the present petition is GRANTED. The questioned resolutions of the Sandiganbayan are SET ASIDE insofar as
they allow the counterclaim filed against the petitioner.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea
and Regalado, JJ., concur.

undefined
PUBLIC OFFICERS
PUBLIC OFFICE AND OFFICERS

Public Office

Definition

A public office is the right, authority and duty created and conferred by law, by which for a given period,
either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some
portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.
(Mechem)

Purpose and Nature

A public office is created to effect the end for which government has been instituted which is the common
good; not profit, honor, or private interest of any person, family or class of persons (63 A Am Jur 2d 667)

Nature: (1) A public office is a public trust. (Art. XI, Sec. 1, 1987 Consti)
 (2) It is a responsibility and not a right. (Morfe v. Mutuc)

Elements

(1) Must be created either by (a) the Constitution, (b) the Legislature, or (c) a
municipality or other body through authority conferred by the Legislature;

(2) Must possess a delegation of a portion of the sovereign power of

government, to be exercised for the benefit of the public;

(3) The powers conferred and the duties discharged must be defined, directly or
impliedly by the Legislature or through legislative authority;

(4) The duties must be performed independently and without control of a

superior power other than the law;

Exception: If the duties are those of an inferior or subordinate office, created or authorized by the
Legislature and by it placed under the general control of a superior office or body;

(5) Must have some permanency and continuity

Note: This is not to be applied literally. The Board of Canvassers is a public office, yet its duties are
only for a limited period of time.

(cf. Barney v. Hawkins)

Public Officer v. Public Employment

Public employment is broader than public office. All public office is public employment, but not all
public employment is a public office.

Generally, a position is a public office when it is created by law, with duties cast upon the incumbent
which involve the exercise of some portion of the sovereign power, and in the performance of which the
public is concerned. Public employment is a position which lacks one or more of the foregoing elements.

Public Office v. Public Contract

Public Office Public Contract

Creation Incident of sovereignty Originates from will of

contracting parties

Object Carrying out of Obligations imposed

sovereign as well as only upon the persons
governmental functions who entered into the
affecting even persons contract
not bound by the
contract

Subject Tenure, duration, Limited duration

 Matter continuity

Scope Duties that are generally Duties are very

continuing and specific to the contract
permanent

Where The law Contract

duties are
defined

No vested right to public office

GENERAL RULE: A public office, being a mere privilege given by the state, does not vest any rights in
the holder of the office. This rule applies when the law is clear.

EXCEPTION: When the law is vague, the persons holding of the office is protected and he
should not be deprived of his office.

Segovia v. Noel

It is a fundamental principle that a public office cannot be regarded as the property of the incumbent
and that a public office is not a public contract. Nonetheless, Act. No. 3107 should be given a prospective
effect in the absence of legislative intent to the contrary. Although there is a vested right to an office, which
may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to
be taken away by statute, the terms should be clear.

Agcaoili v. Suguitan

The Supreme Court held that Agcaoili had not ceased to be a justice of the peace by operation of Act
No. 3107. The Segovia ruling was reiterated, i.e. Act No. 3107 should be given prospective effect only, as
there was no express statement making the law applicable retroactively.

Public Office not property

A public office is not the property of the public officer within the provision of the Constitution against
deprivation of property without due process of law or within an agreement in a treaty not to impair the
property or rights of private individuals.

Exceptions:

(1) In quo warranto proceedings relating to the question

as to which of 2 persons is entitled to a public office

(2) In an action for recovery of compensation accruing by virtue of

the public office

Cornejo v. Gabriel
 Due process is violated only if an office is considered property. However, a public office is not
property within the constitutional guaranties of due process. It is a public trust or agency. As public officers
are mere agents and not rulers of the people, no man has a proprietary or contractual right to an office.
Every officer accepts office pursuant to law and holds office as a trust for the people whom he represents.

Abeja v. Tanada

Public office being personal, the death of a public officer terminates his right to occupy the contested
office and extinguishes his counterclaim for damages. His widow and/or heirscannot be substituted in the
counterclaim suit.

Modes of Creation of Public Office

(1) by the Constitution

(2) by statute / law
(3) by a tribunal or body to which the power to create the office has been delegated

Scope and Extent of Power of legislature

GENERAL RULE: The creation of a public office is primarily a

legislative function.

Exceptions: (1) where the offices are created by the

Constitution;
(2) where the Legislature delegates such power.

Delegation of power to create public office

Q: What is the effect where an office is created pursuant to illegally delegated powers?

A: The office would have no existence.

U.S.T. v. Board of Tax Appeals

The authority given to the President to "reorganize within one year the different executive
departments, bureaus and other instrumentalities of the Government" in order to promote efficiency in the
public service is limited in scope and cannot be extended to other matters not embraced therein. Therefore,
an executive order depriving the Courts of First Instance of jurisdiction over cases involving recovery of
taxes illegally collected is null and void, as Congress alone has the "power to define, prescribe and
apportion the jurisdiction of the various courts."

Methods of Organizing offices

(1) Single-head: one head assisted by subordinates. Swifter decision and

actions but may sometimes be hastily made.
 (2) Board System: collegial body in formulating polices and implementing
programs. Mature studies and deliberations but may be slow in
responding to issues and problems.

Modification and Abolition

GENERAL RULE: The power to create an office includes the power to modify or abolish it. (i.e., this is
generally a legislative function)

EXCEPTIONS:

(1) Where the Constitution prohibits such modification / abolition;

(2) Where the Constitution gives the people the power to modify or abolish the office;

Ocampo v. Secretary of Justice

The legislative power to create a court carries with it the power to abolish it. When the court is
abolished, any unexpired term is abolished also.

Zandueta v. De la Costa

RULE: When a public official voluntarily accepts an appointment to an office newly created by law --
which new office is incompatible with the former -- he will be considered to have abandoned his
former office.

Exception: When the non-acceptance of the new appointment would affect public interest, and the
public official is thereby constrained to accept.

Estoppel to deny existence of office

Q: When is a public officer estopped from denying that he has occupied a public office?

A: When he has acted as a public officer, esp. where he has received

public monies by virtue of his office.

Public Officer
Volunteer Service under RA 6713

Definition

A public officer is one who performs public functions / duties of government by virtue of direct provision of
law, popular election, or appointment by competent authority. His duties involve the exercise of discretion in the
performance of the functions of the government, and are not of a merely clerical or manual nature. (See Sec. 2
(14), E.O. 292)

Note: For the purpose of applying the provisions of the Revised Penal
Code, employees, agents, or subordinate officials, of any rank or class, who perform public
duties in the government or in any of its branches shall be deemed as public officers.
 Illustrations:

In the case of Maniego v. People, a laborer who was in charge of issuing summons and
subpoenas for traffic violations in a judge's sala was convicted for bribery under RPC
203. The court held that even temporary performance of public functions is sufficient to
constitute a person as a public official.

In the case of People v. Paloma, a sorter and filer of money orders in the Auditor's Office
of the Bureau of Posts was convicted for infidelity in the custody of documents. The court
pointed out that the sorting and filing of money orders in the Bureau of Posts is obviously
a public function or duty.

Who are not considered public officers?

Special policemen salaried by a private entity and patrolling only the premises of such private entity
(Manila Terminal Co. v. CIR);

Concession forest guards (Martha Lumber Mill v. Lagradante);

Company cashier of a private corporation owned by the government (Tanchoco v. GSIS)

May a person be compelled to accept a public office?

GENERAL RULE: NO.

EXCEPTIONS:

(1) When citizens are required, under conditions provided by law,

to render personal military or civil service (Sec. 4, Art. II, 1987 Const.);

(2) When a person who, having been elected by popular election to a public office, refuses
without legal motive to be sworn in or to discharge the duties of said office (Art. 234,
RPC; Note: the penalty shall be either arresto mayor, or a fine not exceeding P 1,000.00, or
both)

No presumption of power

Villegas v. Subido

Nothing is better settled in the law than that a public official exercises power, not rights. The
government itself is merely an agency through which the will of the state is expressed and enforced. Its
officers therefore are likewise agents entrusted with the responsibility of discharging its functions. As such,
there is no presumption that they are empowered to act. There must be a delegation of such authority,
either express or implied. In the absence of a valid grant, they are devoid of power.

Classification of Public Offices and Public Officers

 Creation

(1) Constitutional
(2) Statutory

Public Body Served

(1) National
(2) Local

Department of government to which their functions pertain

(1) Legislative
(2) Executive
(3) Judicial

Nature of functions

(1) Civil
(2) Military

Exercise of Judgment or discretion

(1) Quasi-judicial
(2) Ministerial

Legality of Title to office

(1) De Jure
(2) De Facto

Compensation

(1) Lucrative
(2) Honorary

DE FACTO OFFICERS

De Facto Doctrine

Q: What is the de facto doctrine?

A: It is the principle which holds that a person, who, by the proper authority, is admitted and sworn into
office is deemed to be rightfully in such office until:

(a) by judicial declaration in a proper proceeding he is ousted therefrom; or

(b) his admission thereto is declared void.

Q: What is the purpose for the doctrine?

 A: It is to ensure the orderly functioning of government. The public cannot afford to check the validity of
the officer's title each time they transact with him.

De Facto Officer defined

Q: When is a person a de facto officer?

A: Where the duties of the office are exercised under any of the following circumstances:

(1) Without a known appointment or election, but under such circumstances of reputation or
acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his
action, supposing him to the be the officer he assumed to be; or

(2) Under color of a known and valid appointment or election, but where the officer has failed to
conform to some precedent requirement or condition (e.g., taking an oath or giving a bond);

(3) Under color of a known election or appointment, void because:

(a) the officer was not eligible;

(b) there was a want of power in the electing or appointing body;
(c) there was a defect or irregularity in its exercise;

such ineligibility, want of power, or defect being unknown to the public.

(4) Under color of an election or an appointment by or pursuant to a public, unconstitutional law,

before the same is adjudged to be such.

Note: Here, what is unconstitutional is not the act creating the office, but the act by which the
officer is appointed to an office legally existing. (Norton v. County of Shelby)

Officer De Jure v. Officer De Facto

De Jure De Facto

Requisites (1) Existence of a de jure (1) De jure office;

office;

(2) must possess the (2) Color of right or

legal qualifications for general acquiescence
the office in question; by the public;

(3) must be lawfully (3) Actual physical

chosen to such office; possession of the
office in good faith
(4) must have qualified
himself to perform the
duties of such office
according to the mode
prescribed by law.
 Basis of Right: he has the lawful Reputation: Has the
Authority right / title to the office possession and performs
the duties under color of
right, without being
technically qualified in all
points of law to act

How ousted Cannot be ousted. Only by a direct

proceeding (quo
warranto); not collaterally

Validity of Valid, subject to Valid as to the public until

official acts exceptions (e.g., they such time as his title to the
were done beyond the office is adjudged
scope of his authority, insufficient.
etc.)

Rule on Entitled to compensation Entitled to receive

Compensation as a matter of right;
The principle of "no work,
no pay" is not applicable
to him.
compensation only during
the time when no de jure
officer is declared;
He is paid only for actual
services rendered by him.

Officer De Facto v. Intruder

De Facto Intruder

Nature Officer under any of the 4 One who takes

circumstances discussed possession of an office
under Part II (above). and undertakes to act
officially without any
authority, either actual or
apparent

Basis of Color of right or title to None. He has neither

authority office lawful title nor color of
right or title to office.

Validity of Valid as to the public until Absolutely void; they can

"official" acts such time as his title to the be impeached at any time
office is adjudged in any proceeding (unless
insufficient and until he continues to
act for so long a time as to
afford a presumption of
his right to act)

Rule on Entitled to receive Not entitled to

compensation compensation only during compensation at all.
the time when no de jure
 officer is declared;

He is paid only for actual

services rendered by him.

Q: Can an intruder / usurper ripen into a de facto officer?

A: Yes. With the passage of time, a presumption may be created in the minds of the public that the intruder
has a right to act as a public officer.

Q: Is good faith a factor in the ripening of intruder status into de facto status?

A: Yes. HOWEVER, it must be noted that the good faith must be on the part of
the public; not on the part of the intruder.

Elements of a De Facto Officership

(1) De jure office

(2) Color of right or general acquiescence by the public;
(3) Actual physical possession of the office in good faith
Note: This is not absolutely true. An intruder / usurper may ripen
into a de facto officer.

Examples of De Facto Officers

A judge who continued to exercise his duties after his appointment was disapproved by the CA according to a
newspaper report, but before receiving the official notification regarding the rejection of his appointment (Regala
v. Judge of CFI);

A lawyer instructed by the Acting Provincial Governor to file an information for homicide, where the latter had no
authority to designate him as assistant fiscal, and where the DOJ had not authorized him to act as such (People
v. Penesa);

A third-ranking councilor who is designated to act as mayor by an officer other than the proper appointing
authority prescribed by law, and lacking the consent of the Provincial Board (Codilla v. Martinez)

Examples of those not considered as De Facto Officers

A judge who has accepted an appointment as finance secretary and yet renders a decision after having
accepted such appointment (Luna v. Rodriguez);

A judge whose position has already been abolished by law, and yet promulgates a decision in a criminal
case after the abolition and over the objection of the fiscal (People v. So)
Legal Effect of Acts of De Facto Officers

As regards the officers themselves

GENERAL RULE: A party suing or defending in his own right as a

public officer must show that he is an officer de jure. It is not sufficient that he be
merely a de facto officer.

As regards the public and third persons

GENERAL RULE: The acts of a de facto officer are valid as to third persons and the public until his title to
office is adjudged insufficient.

Official Acts of De Facto Officers not subject to collateral attack

RULE: The title of a de facto officer and the validity of his acts cannot be collaterally questioned in
proceedings to which he is not a party, or which were not instituted to determine the very question.

REMEDY: Quo warranto proceedings

Who may file:

(1) The person who claims to be entitled to the office;

(2) The Republic of the Philippines, represented by

(a) the Solicitor-General; or

(b) a public prosecutor

Nueno v. Angeles

In this case, there were four (4) petitioners seeking to oust six (6) Board Members. The Court held that
this could not be done unless all 4 of them were entitled to the offices of the 6.

Liabilities of De Facto Officers

The liability of a de facto officer is generally held to be the same degree of accountability for official acts
as that of a de jure officer.

The de facto officer may be liable for all penalties imposed by law for any of the following acts:

(a) usurping or unlawfully holding office;

(b) exercising the functions of public office without lawful right;
(c) not being qualified for the public office as required by law.
 The de facto officer cannot excuse his responsibility for crimes committed in his official capacity by
asserting his de facto status.

ELIGIBILITY AND QUALIFICATIONS

Definition

Eligibility, which is the term usually used in reference to the Civil Service Law, refers
to the endowment / requirement / accomplishment that fits one for a public office.

Qualification generally refers to the endowment / act which a person must do before
he can occupy a public office.

Power to Prescribe Qualifications

GENERAL RULE: Congress is empowered to prescribe the qualifications for holding public office,
subject to the following restrictions:

Congress cannot exceed its constitutional powers;

Congress cannot impose conditions of eligibility inconsistent with constitutional provisions;

The qualification must be germane to the position ("reasonable relation" rule);

Congress cannot prescribe qualifications so detailed as to practically amount to making an

appointment. (Legislative appointments are unconstitutional and therefore void for being a
usurpation of executive power.);

Where the Constitution establishes specific eligibility requirements for a particular constitutional
office, the constitutional criteria are exclusive, and Congress cannot add to them exceptif the
Constitution expressly or impliedly gives the power to set qualifications.

Q: What legislative enactments are tantamount to legislative appointments?

A:
Extensions of the terms of office of the incumbents;

The People's Court Act, which provided that the President could designate Judges of First Instance,
Judges-at-large of First Instance or Cadastral Judges to sit as substitute Justices of the Supreme Court
in treason cases without them necessarily having to possess the required constitutional qualifications of
a regular Supreme Court Justice. (Vargas v. Rilloraza);

A proviso which limits the choices of the appointing authority to only one eligible, e.g. the incumbent
Mayor of Olongapo City (Flores v. Drilon);
 A legislative enactment abolishing a particular office and providing for the automatic transfer of the
incumbent officer to a new office created (contemplated in Manalang v. Quitoriano);

A provision that impliedly prescribes inclusion in a list submitted by the Executive Council of the Phil.
Medical Association as one of the qualifications for appointment; and which confines the selection of the
members of the Board of Medical Examiners to the 12 persons included in the list (Cuyegkeng v. Cruz) ;

Manalang v. Quitoriano

Congress cannot either appoint a public officer or impose upon the President the duty to appoint any particular
person to an office. The appointing power is the exclusive prerogative of the President, upon which no limitations
may be imposed by Congress, except those resulting from:

(1) the need of securing the concurrence of the Commission on Appointments; and

(2) the exercise of the limited legislative power to prescribe the

qualifications to a given appointive office.

Cuyegkeng v. Cruz

The power of appointment vested in the President by the Constitution connotes necessarily a reasonable
measure of freedom, latitude, or discretion in the exercise of the power to choose appointees.

Flores v. Drilon

Where only one can qualify for the posts in question, the President is precluded from exercising his discretion to
choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power
at all and goes against the very nature itself of appointment.

Time of Possession of Qualifications

Q: When must the qualifications be possessed?

A: Where the time is specified by

the Constitution or law: At the time specified

Where the Constitution or law is silent:

There are 2 views:

(1) qualification must be at the time of commencement of term or induction into office;

(2) qualification / eligibility must exist at the time of the election or appointment

* Eligibility is a continuing nature, and must exist throughout the holding of the public office. Once the
qualifications are lost, then the public officer forfeits the office.

Castaneda v. Yap
 Knowledge of ineligibility of a candidate and failure to question such ineligibility before or during the election
is not a bar to questioning such eligibility after such ineligible candidate has won and been proclaimed. Estoppel
will not apply in such a case.

Frivaldo v. COMELEC

The citizenship requirement must be met only on election day. While the Local Government Code requires
one year residency immediately preceding election day and the prescribed age on election day, no date is specified
for citizenship. The purpose of the citizenship requirement is to ensure leaders owing allegiance to no other
country. Such purpose is not thwarted, but instead achieved by construing the requirement to apply at time of
proclamation and at the start of the term.

Qualifications usually prescribed

a) President (Sec. 2, Art. VI, Constitution)

Vice President (Sec. 3, Art. VII, Constitution)

Natural-born citizen
40 years old on day of election
resident of the Philippines for at least 10 yrs immediately preceding election day

b) Senator (Sec. 3, Art. VI, Constitution)

Natural-born citizen
35 years old on day of election
able to read and write
registered voter
resident of the Philippines for not less than two years immediately preceding election day

c) Congressmen (Sec. 6, Art. VI, Constitution)

Natural-born citizen
25 years old on day of election
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

d) 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)

e) 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

f) COMELEC Comm. (Sec. 1[1], Art. IXC)

Natural-born citizen
35 years old at time of appointment
college degree holder
not a candidate for elective position in election immediately preceding appointment
chairman and majority should be members of the bar who have been engaged in the practice of law for at least
10 years (See Cayetano v. Monsod)

g) COA Commissioners

Natural-born citizen
35 years old at time of appointment
CPA with >10 year of auditing experience or
Bar member engaged in practice of law for at least 10 years
Not have been candidates for elective position in elections immediately preceding appointment

Cayetano v. Monsod Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience.
Generally, to practice law is to give notice or render any kind of service which
requires the use in any degree of legal knowledge or skill.

Aquino v. COMELEC: Residency of not less than 1 year prior to the elections for the position of
Congressman. In election law, residence refers to domicile, i.e. the place
where a party actually or constructively has his permanent home, where he
intends to return. To successfully effect a change of domicile, the candidate
must prove an actual removal or an actual change of domicile. Here, it was
held that leasing a condominium unit in the district was not to acquire a new
residence or domicile but only to qualify as a candidate.

Marcos v. COMELEC: Domicile, which includes the twin elements of actual habitual residence,
and animus manendi, the intention of remaining there permanently. It was
held that domicile of origin is not easily lost, and that in the absence of clear
and positive proof of a successful change of domicile, the domicile of origin
should be deemed to continue.

Religious Test or Qualification

No religious test shall be required for the exercise of civil or political rights. (Art. III, Sec. 5, 1987
Constitution)

FORMATION OF OFFICIAL RELATION

Modes of Commencing Official Relation

(a) Election
 (b) Appointment

(c) Others:
(i) Succession by operation of law;

(ii) Direct provision of law, e.g. ex-oficio officers

Election: Selection or designation by a popular vote

Appointment

Definition

Q: Distinguish between designation and appointment.

Designation Appointment

Definition Imposition of additional Selection of an

duties upon an existing individual to occupy a
office certain public office by
one authorized by law
to make such selection

Extent of Limited Comprehensive

Powers

Security of No. Yes.

tenure?

When Assumption of a Assumption of a

deemed designated position is 2ndappointive position
abandonment not deemed is usually deemed
of prior office abandonment of the abandonment of the
1st position first office.

Nature of Appointing Power

The power to appoint is intrinsically an executive act involving the exercise of discretion. (Concepcion v.
Paredes)

The power and prerogative to a vacant position in the civil service is lodged with the appointing authority.

Constitutional Provisions
Q: Who can the President nominate and appoint with the consent of the
Commission on Appointments?

A:
Heads of the executive departments (Art. VII, Sec. 16,
1987 Const.);

Ambassadors (ibid);

Other public ministers and consuls (ibid);

Officers of the armed forces from the rank or colonel or naval captain (ibid);

Other officers whose appointments are vested in him by the Constitution (ibid), including
Constitutional Commissioners (Art. IX-B, Sec. 1 (2) for CSC; Art. IX-C, Sec. 1 (2) for COMELEC;
Art. IX-D, Sec. 1 (2) for COA).

Q: Who can the President appoint without the need for CA approval?

A: All other officers of the government whose appointments are not otherwise provided for by law;

Those whom he may be authorized by law to appoint;

Members of the Supreme Court;

Note: To be appointed from a list of at least 3 nominees prepared by the Judicial and Bar Council (Art.
VIII, Sec. 9, 1987 Const.)

Judges of lower courts;

Note: To be appointed from a list of at least 3 nominees prepared by the Judicial and Bar Council (Art.
VIII, Sec. 9, 1987 Const.)

Ombudsman and his deputies

Note: To be appointed from a list of at least 6 nominees prepared by the Judicial and Bar Council, and
from a list of 3 nominees for every vacancy thereafter (Art. XI, Sec. 9, 1987 Const.)

Q: Does the President have the power to make appointments when

Congress is in recess?

A: Yes. However, such appointments shall be effective only until:

(1) disapproval by the Commission on Appointments; or

(2) the next adjournment of the Congress (Sec. 16, Art. VII, 1987 Const.)

Q: What is the effectivity of appointments extended by an Acting

President?
 A: Such appointments shall remain effective unless revoked by the elected President within
90 days from his assumption or reassumption of office. (Sec. 14, Art. VII, 1987 Const.)

Qualification Standards and Requirements under the Civil Service Law

Qualification Standards:

Express the minimum requirements for a class of positions in terms of education , training and
experience, civil service eligibility, physical fitness, and other qualities required for successful
performance. (Sec. 22, Book V, EO 292)

A statement of the minimum qualifications of a position which shall include education,

experience, training, civil service eligibility, and physical characteristics and personality
traitsrequired by the job. (Sec. 2, Rule IV, Omnibus Rules)

With respect to a particular position, such qualification standards shall serve as the basis for the
determination by the appointing authority of the degree of qualifications of an officer or employee
(ibid);

Shall be used as basis for civil service examinations for positions in the career service, as guides
in appointment and other personnel actions, in the adjudication of protested appointments,
in determining training needs, and as aid in the inspection and audit of the agencies' personnel
work programs (ibid);

Shall be administered in such manner as to continually provide incentives to officers and

employees towards professional growth and foster the career system in the government service
(ibid);

It shall be the responsibility of the departments and agencies to establish, administer and
maintain the qualification standards on a continuing basis as an incentive to career
advancement. (Sec. 7, Rule IV, Omnibus Rules)

Their establishment, administration, and maintenance shall be the responsibility of

the department / agency, with the assistance and approval of the CSC and in consultation with
the Wage and Position Classification Office (ibid);

Whenever necessary, the CSC shall provide technical assistance to departments and
agencies in the development of their qualification standards. (Sec. 5, Rule IV, Omnibus
Rules)

Shall be established for all positions in the 1st and 2nd levels (Sec. 1, Rule IV, Omnibus Rules);

Political Qualifications for an Office

GENERAL RULE: Political qualifications are not required for public office.

Exceptions: (1) Membership in the electoral tribunals of either the House of

Representatives or Senate (Art. VI, Sec. 17, 1987 Const.);
 (2) Party-list representation;

(3) Commission on Appointments;

(4) Vacancies in the Sanggunian (Sec. 45, Local Government Code)

Property Qualifications

In the cases of Maquera v. Borra and Aurea v. COMELEC, the Supreme Court struck down R.A. 4421 which
required candidates for national, provincial, city and municipal offices to post a surety bond equivalent to the one-
year salary or emoluments of the position to which he is a candidate, which shall be forfeited in favor of the govt.
concerned if the candidate fails to obtain at least 10% of the votes cast.

The Supreme Court held that property qualifications are inconsistent with the nature and essence of the
Republican system ordained in our Constitution and the principle of social justice underlying the same. The Court
reasoned out that:

"Sovereignty resides in the people and all government authority emanates from them, and this, in
turn, implies necessarily that the right to vote and to be voted shall not be dependent upon the wealth
of the individual concerned. Social justice presupposes equal opportunity for all, rich and poor alike,
and that, accordingly, no person shall, by reason of poverty, be denied the chance to be elected to
public office."

Aliens not eligible to public office

This is self-explanatory.

Effect of removal of qualifications during the term

Q: What happens if the qualification is lost which the officer is holding office?

A: The officer must be terminated.

Effect of pardon upon the disqualification to hold public office

GENERAL RULE: A pardon shall not work the restoration of the right to
hold public office. (Art. 36, Revised Penal Code)

Exceptions: (1) Where such right to hold public office is expressly restored by the terms of the
pardon (Art. 36, RPC);

(2) When a person is granted pardon because he did not commit the offense imputed
to him (Garcia v. Chairman, COA)

Rules governing effects of pardon:

(1) A public official who has been convicted of a crime but has been pardoned must secure a
reappointment before he / she can reassume his / her former position. (Monsanto v. Factoran)
 Note: Acquittal is the only ground for automatic reinstatement of a public officer to his / her
former position.

(2) Pardon does not exempt the culprit from payment of the civil indemnity imposed upon him / her
by the sentence. (Art. 36, par. 2, RPC)

(3) A convicted public official who has been pardoned is not entitled to backpay and other
emoluments due to him during the period of his suspension pendente lite. (Monsanto v. Factoran)

Discretion of appointing official

Discretion, if not plenary, at least sufficient, should thus be granted to those entrusted with the responsibility
of administering the officers concerned, primarily the department heads. They are in the most favorable
position to determine who can best fulfill the functions of the office thus vacated. Unless, therefore, the law
speaks in the most mandatory and peremptory tone, considering all the circumstances, there should be, as
there has been, full recognition of the wide scope of such discretionary authority. (Reyes v. Abeleda)

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested
according to this best lights, the only condition being that the appointee should possess the qualifications
required by law. (Lapinid v. CSC)

The only function of the CSC is to review the appointment in the light of the requirements of the Civil Service
Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise
satisfied, it has no choice but to attest to the appointment. It cannot order the replacement of the

appointee simply because it considers another employee to be better qualified. (Lapinid v. CSC)

To hold that the Civil Service Law requires that any vacancy be filled by promotion, transfer, reinstatement,
reemployment, or certification in that order would be tantamount to legislative appointment which is
repugnant to the Constitution. The requirement under the Civil Service Law that the appointing power set
forth the reason for failing to appoint the officer next in rank applies only in cases of promotion and not in
cases where the appointing power chooses to fill the vacancy by transfer, reinstatement, reemployment or
certification, not necessarily in that order. (Pineda v. Claudio)

The CSC is not empowered to change the nature of the appointment extended by the appointing officer, its
authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil
Service Law. When the appointee is qualified and all the legal requirements are satisfied, the CSC has no
choice but to attest to the appointment. (Luego v. CSC)

Appointment is a political question.

Where the palpable excess of authority or abuse of discretion in refusing to issue promotional appointment
would lead to manifest injustice, mandamus will lie to compel the appointing authority to issue said
appointments. (Gesolgon v. Lacson)

Effectivity of Appointment

Q: When does an appointment take effect?

 A: Immediately upon its issuance by the appointing authority. (Rule V, Sec. 10, Omnibus Rules).

When appointment becomes complete, final and irrevocable

GENERAL RULE: An appointment, once made, is irrevocable and not subject to reconsideration.

Qualification: Where the assent, confirmation, or approval of some other

officer or body is needed before the appointment may be issue and be deemed
complete.

Exceptions: (1) When the appointment is an absolute nullity (Mitra v. Subido);

(2) When there is fraud on the part of the appointee (Mitra v. Subido);

(3) Midnight appointments

A completed appointment vests a legal right. It cannot be taken away EXCEPT for cause, and with
previous notice and hearing (due process).

Midnight appointments

A President or Acting President is prohibited from making appointments 2 months immediately before the
next presidential elections and up to the end of his term. (Art. VII, Sec. 15, 1987 Const.)

Exception: Temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety.

ASSUMPTION AND TERM OR TENURE OF OFFICE

Qualification to Office

Appointment and Qualification to Office Distinguished

Appointment and qualification to office are separate and distinct things. Appointment is the act of being
designated to a public office by the appointing authority. Qualification is the act of signifying one's acceptance of
the appointive position. This generally consists of the taking / subscribing / filing of an official oath, and in certain
cases, of the giving of an official bond, as required by law. (Mechem)

No one can be compelled to accept an appointment.

Lacson v. Romero

The appointment to a government post involves several steps: (1) the President nominates; (b) the
Commission on Appointments confirms the appointment; and (c) the appointee accepts the appointment by his
assumption of office. The first 2 steps are mere offers to the post but the last step rests solely with the
appointee who may or may not accept the appointment.

Borromeo v. Mariano
 A judge may not be made a judge of another district without his consent. Appointment and qualification to
office are separate and distinct things. Appointment is the sole act of the appointee. There is no power which
can compel a man to accept the office.

Effect of Failure to Qualify

Failure to qualify is deemed evidence of refusal of the office.

It is a ground for removal:

If qualification is a
condition precedent: Failure to qualify ipso facto deemed
rejection of the office

If not condition precedent: Failure is not ipso facto rejection

Justifiable reasons for delay in qualifying include sickness, accident, and other fortuitous events that
excuse delay.

The Omnibus Election Code provides that the officer must qualify (i.e., take his oath of office and
assume office) within 6 months from proclamation. Otherwise, the position will be deemed vacant.

Exception: If the non-assumption of office is due to a cause

beyond his control.

Qualification is significant because it designates when security of tenure begins.

Oath of Office

An oath is an outward pledge whereby one formally calls upon God to witness to the truth of what he says or to
the fact that he sincerely intends to do what he says.

Although the law usually requires the taking of an oath, it is not indispensable. It is a mere incident to the office
and constitutes no part of the office itself. However, the President, Vice-President and Acting President are
required by the Constitution (Art. VII, Sec. 5) to take an oath or affirmation before entering into the execution of
their office. Such oath-taking is mandatory.

Q: Who are authorized to administer oaths?

A: (1) Notaries public;

(2) Judges;
(3) Clerks of court;
(4) Secretary of House / Senate;
(5) Secretary of Exec. Departments;
(6) Bureau Directors;
(7) Register of Deeds;
(8) Provincial governors;
(9) City mayors;
(10) Municipal mayors;
 (11) Any other officer in the service of the government of the Philippines
whose appointment is vested in the President;
(12) Any other officer whose duties, as defined by law or regulation,
require presentation to him of any statement under oath

Q: Who are obliged to administer oaths in all instances, and not just in matters of official business?

A: (1) Notaries public;

(2) Municipal judges;
(3) Clerks of court

Time of Taking the Oath of Office

A public officer must take his oath of office before entering upon the discharge of his duties.

Requalification

If a public officer is re-elected or re-appointed, he must take another oath and fulfill the other condition
precedents before assuming office. The oath and other qualifications made prior to assumption of his previous
office will not be valid for subsequent terms of office.

Giving of Bonds

Persons required to give bond

Q: Who are the public officers generally required to give a bond?

A: (1) Accountable public officers or those to whom are entrusted the collection and custody of public
money;

(2) Public ministerial officers whose actions may affect the rights and interests of individuals.

The bond is in the nature of an indemnity bond rather than a penal or forfeiture bond.

The bond is also an obligation binding the sureties to make good the officers default. It is required not
for the benefit of the office holder, but for the protection of the public interest and is designed to indemnify
those suffering loss or injury by reason of misconduct or neglect in office.

Effect of Failure to Give Bond within the Prescribed Period

If not condition precedent: Failure to give bond merely constitutes a ground for
forfeiture of the office; it is not forfeiture of the office ipso facto.

IF condition precedent: Failure to give bond within the prescribed period

renders the office vacant.
Term and Tenure of Office

Term of Office and Tenure of Office Distinguished

Term of Office Tenure of Office

De jure De facto

Fixed and definite period of time Period during which the incumbent
during which the officer may actually holds the office. It may be
claim to hold the office as of right shorter than the term.

Alba v. Evangelista

It is only in those cases in which the office is held at the pleasure of the appointing power and where the
power of removal is exercisable at its mere discretion that the officer may be removed without notice or hearing.

Power of the Legislature to Fix and Change the Term of Office

RULES:

Where the term is fixed

by the Constitution: Congress has no power to alter the term.

However, such term of office can be shortened or extended

by the vote of the people ratifying a constitutional amendment.

Where the term is not fixed: Congress may fix the terms of officers
other than those provided for in the Const.

Congress has the power to change the tenure of officers holding offices created by it. However, if the
term is lengthened and made to apply to the incumbents, this could be tantamount to a legislative
appointment which is null and void.

When Term of Office Dependent upon "Pleasure of the President"

Congress can legally and constitutionally make the tenure of certain officials dependent upon the pleasure of
the President. (Alba v. Evangelista)

Where the office is held at the pleasure of the appointing power and such appointing power can exercise the
power of removal at his mere discretion, the public officer may be removed without notice or hearing. (Alba v.
Evangelista)

No Vested Interest in Term of Office

Public office is a privilege revocable by the sovereignty at will. An incumbent cannot validly object to the
alteration of his term since he has no vested right in his office. (Greenshow v. U.S.)
 Term of Office Not Extended by Reason of War

There is no principle, law or doctrine by which the term may be extended by reason of war. (Nueno, et al. v.
Angeles)

Doctrine of Holdover

Q: What is the doctrine of hold-over?

A: A public officer whose term has expired or services have been terminated is allowed to continue holding his
office until his successor is appointed or chosen and had qualified. (Mechem)

Purpose of the Hold-Over Rule

Public interest. It is to prevent a hiatus in the government pending the time when a successor may be
chosen and inducted into office.

Holding-Over Rules

(1) Where the law provides for it: The office does not become vacant upon the expiration of the term if
there is no successor elected and qualified to assume it. Incumbent
will hold-over even if beyond the term fixed by law.

(2) Where the law is silent: Unless hold-over is expressly or impliedly prohibited, incumbent may
hold-over.

(3) Where the Constitution limits

the term of a public officer and
does not provide for hold-over: Hold-over is not permitted.

Commencement of Term of Office

RULES:

(1) Where the time is fixed: The term will begin on the specified date.

(2) Where no time is fixed: The term will generally begin on the date
of the election or the appointment.

POWERS AND DUTIES OF PUBLIC OFFICERS

Source of Government Authority: The people, the sovereignty.

Scope of Powers of a Public Officer

 Lo Cham v. Ocampo

The duties of a public office includes all those which truly are within its scope:

(1) those which are essential to the accomplishment of the main purpose for which the office was
created; or

(2) those which, although incidental or collateral, are germane to and serve to promote the
accomplishment of the principal purpose.

Territorial Extent of Powers of Public Officer

GENERAL RULE: Where a public officer is authorized by law to perform the duties of his office at a particular
place, action at a place not authorized by law is ordinarily invalid. (Note: This rule is
applicable to all public officers whose duties are essentially local in nature, e.g. judges.)

EXCEPTIONS: (1) Consuls;

(2) Police officers, who may arrest persons for crimes committed outside Philippine
territory;

(3) Doctrine of hot pursuit

Duration of Authority of Public Officers

The duration of the authority of public officers is limited to that term during which he is, by law, invested with the
rights and duties of the office.

Construction of Grant of Powers

Strict construction. Will be construed as conferring only those powers which are expressly imposed or necessarily
implied.

Classification of Powers

Discretionary Ministerial

Definition Acts which require the Acts which are performed in a

exercise of reason in given state of facts, in a
determining when, where, and prescribed manner, in
how to exercise the power obedience to the mandate of
legal authority, without regard
to or the exercise of his own
judgment upon the propriety or
impropriety of the act done
(Lamb v. Phipps)

Can be delegated? Generally, NO. Generally, YES.

Exception: When the power Exception: When the law

 to substitute / delegate has expressly requires the act to
been given be performed by the officer in
person and / or prohibits such
delegation

When is mandamus Only if the duty to do In all cases.

proper? something has been delayed
for an unreasonable period of
time.

Is public officer Generally not liable Liable if duty exercised

liable? Exceptions: if there is fraud contrary to the manner
or malice prescribed by law.

Discretion; Discretionary Power

Ministerial Duty

Q: What is discretion?

A: Discretion, when applied to public functionaries, means a power or right conferred upon them by law of acting
officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled
by the judgment or conscience of others. (Lamb v. Phipps)

Q: What is a ministerial act?

A: A purely ministerial act is one which an officer or tribunal performs in a given state of facts, in
a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise
of his own judgment upon the propriety or impropriety of the act done. A ministerial act is one to
which nothing is left to the discretion of the person who must perform. It is a simple, definite duty
arising under conditions admitted or proved to exist and imposed by law. It is a precise act,
accurately marked out, enjoined upon particular officers for a particular purpose. (Lamb v. Phipps)

Lamb v. Phipps

Auditors and comptrollers, as accounting officers, are generally regarded as quasi-judicial officers. They
perform mere ministerial duties only in cases where the sum due is conclusively fixed by law or pursuant to
law. Except in such cases, the action of the accounting officers upon claims coming before them for
settlement and certification of balances found by them to be due, is not merely ministerial but judicial and
discretionary. Mandamus will therefore not issue.

Torres v. Ribo

The powers of the Board of Canvassers are quasi-judicial and therefore discretionary.

Aprueba v. Ganzon

Mandamus will not issue to control or review the exercise of discretion of a public officer where the law
imposes on him the right or duty to exercise judgment in reference to any matter in which he is required to
act.
 The privilege of operating a market stall under license is not absolute but revocable under an implied
lease contract subject to the general welfare clause.

Mandamus never lies to enforce the performance of contractual obligations.

Miguel v. Zulueta

Public officers may properly be compelled by mandamus to remove or rectify an unlawful act if to do so is
within their official competence.

Q: When will the writ of mandamus issue?

A:
To correct a gross abuse of discretion, a palpable excess of authority resulting in manifest injustice
(Gesolgon v. Lacson);

Where the question of constitutionality is raised by the petitioner (Cu Unjieng v. Patstone);

Q: When will the writ of mandamus never issue?

A: (1) To control discretion;

(2) When another adequate remedy exists;

(3) To enforce the performance of contractual obligations, as in the

issuance of a license / permit (Aprueba v. Ganzon);

Q: In filing a mandamus suit, when does a taxpayer not have to show that he
has any legal or special interest in the results of such suit?

A: When the question is one of public right and the object of the mandamus is to procure the enforcement
of a public duty, such as the observance of the law. (Miguel v. Zulueta)

Time of Execution of Powers

Where not indicated: Within a reasonable time

Where indicated: Merely directory

Exceptions:

(1) When there is something in the statute which shows a different intent (Araphoe City v.
Union Pac);
 (2) Where a disregard of the provisions of the statute would injuriously affect a public interest
or public right;

(3) When the provision is accompanied by negative words importing that the acts shall not be
done in any other manner or time than that designated.

Ratification of Unauthorized Acts

If act was absolutely void

at the time it was done: Cannot be ratified

If merely voidable: Can be ratified and rendered valid

Where superior officers have authority to ratify the acts of their inferiors, they are restricted to the ratification of
acts and contracts which they themselves are empowered to make.

It is not enough that the public officer acted beyond his powers in order that he may be held liable for damages.
If the act committed is reasonably related to his duties and the officer was in good faith, he will not be held liable.

Government not estopped by the unauthorized or Illegal acts of officers

As between an individual and his government, the individual cannot plead the void act of an official to shield him
from the demand of the government that he (the individual) fulfill an obligation which he has contracted with the
government, after the benefits accruing to him as a result of that obligation have been received. The
government can neither be estopped nor prejudiced by the illegal acts of its servants. (Government v. Galarosa)

Hilado v. Collector

A tax circular issued on a wrong construction of the law cannot give rise to a vested right that can be invoked
by a taxpayer.

Accountability and Responsibility of Public Officers and Employees

Norm of Performance of Duties

Q: What are the standards of personal conduct provided for in Sec. 4, RA 6713?

A: (1) Commitment to public interest;

(2) Professionalism;
(3) Justness and sincerity;
(4) Political neutrality;
(5) Responsiveness to the public;
(6) Nationalism and patriotism;
(7) Commitment to democracy;
(8) Simple living
RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS

Right to Office

The right to office is the right to exercise the powers of the office to the exclusion of others.

Right to Salary or Compensation

GENERAL RULES:

A public officer is not entitled to compensation for services rendered under an unconstitutional statute or
provision thereof.

Exception: If some other statute provides otherwise.

If no compensation is fixed by law, the public officer is assumed to have accepted the office to serve
gratuitously.

After services have been rendered by a public officer, the compensation thus earned cannot be taken
away by a subsequent law. However, he cannot recover salary for a period during which he performed
no services.

One without legal title to office either by lawful appointment or election and qualification is not entitled to
recover salary or compensation attached to the office.

One who intrudes into or usurps a public office has no right to the salary or emoluments attached to the
office.

Compensation not an element of public office

Compensation is not indispensable to public office. It is not part of the office but merely incident thereto. It
is sometimes expressly provided that certain officers shall receive no compensation, and a law creating an office
without any provision for compensation may carry with it the implication that the services are to be rendered
gratuitously.

Salary, Wages, and Per Diems Defined and Distinguished

Salary: time-bound
Wages: service-bound
Per Diem: allowance for days actually spent for special duties

Salary of Public Officer Not Subject to Attachment

The salary of a public officer or employee may not, by garnishment, attachment, or order of execution,
be seized before being paid by him, and appropriated for the payment of his debts.
 Money in the hands of public officers, although it may be due government employees, is not liable to the
creditors of these employees in the process of garnishment because the sovereign State cannot be sued
in its own courts except by express authorization by statute. Until paid over by the agent of the
government to the person entitled to receive it, public funds cannot in any legal sense be part of his
effects subject to attachment by legal process. (Director of Commerce and Industry v. Concepcion)

Future or Unearned Salaries Cannot be Assigned

The salary or emoluments in public office are not considered the proper subject of barter and sale. (22
R.C.L. 541)

Agreements Affecting Compensation Held Void

An agreement by a public officer respecting his compensation may rightfully be considered invalid as against
public policy where it tends to pervert such compensation to a purpose other than that for which it was intended,
and to interfere with the officer's free and unbiased judgment in relation to the duties of his office. (This is usually
with reference to unperformed services and the salary or fees attached thereto.)

Right to Recover Salary: De Jure Officer and De Facto Officer

Monroy v. CA and del Rosario

Where a mayor filed a certificate of candidacy for congressman then withdrew such certificate and
reassumed the position of mayor, thus preventing the vice-mayor from discharging the duties of the position
of mayor, the mayor should reimburse to the vice-mayor, as the right rightful occupant of the position of
mayor, the salaried which he had received.

Rodriguez v. Tan

Where a duly proclaimed elective official who assumes office is subsequently ousted in an election
protest, the prevailing party can no longer recover the salary paid to the ousted officer. The ousted officer,
who acted as de facto officer during his incumbency, is entitled to the compensation, emoluments and
allowances which are provided for the position.

Exception: If there was fraud on the part of the de facto officer which would vitiate his election.

Q: When can the de jure officer recover from:

(a) the government?

When the government continues to pay the de facto officer even after the notice of adjudication of
the protest in favor of the de jure officer.

(b) A de facto officer?

When notice of adjudication of the title to the de jure officer has been given, and the de facto officer
still continues to exercise duties and receive salaries and emoluments.

(c) An intruder / usurper?

 At all instances.

Additional or Double Compensation Prohibited

Q: Differentiate additional compensation from double compensation.

Additional Double

There is only 1 position, but There are 2 positions, and with additional functions
and the public officer is getting additional compensation.
emoluments for both positions.

Q: Differentiate the 2 kinds of allowances.

Commutable Reimbursable

Given by virtue of the position The public officer must present

whether or not he incurred a receipt or certification under
expenses for which the allowance oath that such amount was spent
is given. Received as a matter in order that the public officer
of right. may recover the money spent.

There is a conclusive presumption

that it was spent.

RULES:

Pensions / gratuities are not considered as additional, double, or indirect compensation. (Sec. 8, Art. IX-
B, 1987 Constitution)

By its very nature, a bonus partakes of an additional remuneration or compensation. (Peralta v. Auditor
General)

An allowance for expenses incident to the discharge of the duties of office is not an increase of salary, a
perquisite, nor an emolument of office. (Peralta v. Auditor-General)

Can Public Officer Recover Salary for Period of Suspension?

RULES:

If preventively suspended: NO, he cannot recover salary.

BUT: If he is subsequently exonerated, he can recover

salary for the period of his preventive suspension.
 If he was given penalty of
removal from office, but was YES, he can recover because
completely exonerated upon he was completely exonerated.
appeal:

If he was given penalty of

removal from office, but his NO, because he was still found
penalty was commuted from guilty although the penalty was
removal to mere suspension, reduced.
or demotion:

If the suspension / removal

from office is unjustified: YES.

Q: In summary, when can payment of salaries corresponding to the period

when an employee was suspended be allowed?

A: (1) When he is found innocent of the charges which

caused his suspension;

(2) When the suspension is unjustified (Abellera v. City of

Baguio)

ADMINISTRATIVE DISCIPLINE

Over Presidential Appointees

Olonan v. CSC

Administrative charges were filed against the PUP President and other officers for violations of RA 3019 with the
CSC. Olonan et.al. filed a motion to dismiss the complaint contending principally that the CSC has no jurisdiction to try and
decide the case against her, she being a presidential appointee. The CA upheld Olonans contention. There is nothing in
the provisions of the Constitution or the Administrative Code of 1987 which gives the CSC the power to discipline
presidential appointees like petitioner herein. Sec. 47(1), Book V of EO 292 which provides that a complaint may be filed
directly with the CSC by a private citizen against a government official or employee in which case it may hear and decide
the case must be read together with Sec. 48 which is entitled Procedure in Administrative Cases Against Non-Presidential
Appointees. The very subject of Sec. 48 implicitly limits the scope of the CSCs jurisdiction in administrative cases to non-
presidential appointees and makes patent the conclusion that the disciplinary authority over presidential appointees lies
elsewhere the President as appointing power himself.

Power to Appoint Implies the Power to Remove; Exceptions

a) Justices of the Supreme Court (by impeachment)

b) Members of Constitutional Commissions (by impeachment)
c) Ombudsman (by impeachment)
d) Judges of inferior courts (disciplinary or removal power vested
in the Supreme Court)
Bonifacio Sans Maceda v. Vasquez

A judge who falsifies his Certificate of Service is administratively liable to the SC for serious misconduct and
inefficiency under Sec. 1, Rule 140 of the Rules of Court and criminally liable to the State under the Revised Penal Code
for his felonious act. Where a criminal complaint against a judge or other employee arises from their administrative duties,
the Ombudsman must defer action on said complaint and refer the same to the SC for determination whether said judge or
court employee had acted within the scope of their administrative duties. Thus, the Ombudsman should first refer the
matter to the SC for determination of whether the certificates reflected the true status of his pending case load, as the SC
had the necessary records to make such a determination. Art. VIII, Sec. 6 of the Constitution exclusively vests in the SC
administrative supervision over all courts and court personnel.

Dolalas v. Ombudsman-Mindanao

Citing the Maceda case, the SC power of administrative supervision over judges and court personnel is exclusive.
Investigation by the Ombudsman violates the specific constitutional mandate of the SC and undermines the independence
of the judiciary.

Over Non-Presidential Appointees

Grounds

Sec. 46(a), Book V of EO 292 provides that No officer or employee in the Civil Service shall be suspended
or dismissed except for cause as provided by law and after due process. The grounds constituting just cause are
enumerated in Sec. 46(b).

Jurisdiction

Original complaints may be filed: (a) directly with the CSC or (b) with the Secretaries and heads of agencies and
instrumentalities, provinces, cities and municipalities for officers and employees under their jurisdiction.

Decisions of Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall be
final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty
days salary.

In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be
initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory
except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary
concerned.

Decisions imposing the penalty of suspension for more than thirty days or fine in an amount exceeding thirty days
salary, demotion in rank or salary or transfer, removal or dismissal from office shall be appealable to the CSC.

Procedure in Administrative Cases Against Non-Presidential Appointees

Administrative proceedings may be commenced against a subordinate officer or employee by the Secretary or head
of office of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn written
complaint of any other person.

For complaints filed by any other person

Complainant shall submit sworn statements covering his testimony and those of his witnesses together with his
documentary evidence.

If based on such papers a prima facie case is found not to exist, the disciplining authority shall dismiss the case.
Otherwise, he shall notify the respondent in writing of the charges against the latter.

Respondent shall be allowed not less than seventy-two hours after receipt of the complaint to answer the charges
in writing under oath, together with supporting sworn statements and documents. He shall also indicate whether or not
he elects a formal investigation if his answer is not considered satisfactory.

If the answer is found satisfactory, the disciplining authority shall dismiss the case.

Although a respondent does not request a formal investigation, one shall nevertheless be conducted when from the
allegations of the complaint and the answer of the respondent, including the supporting documents, the merits of the
case cannot be decided judiciously without conducting such an investigation.

The decision shall be rendered by the disciplining authority within thirty days from the termination of the
investigation or submission of the report of the investigator, which report shall be submitted within fifteen days from the
conclusion of the investigation.

Either party may avail himself of the services of counsel and may require the attendance of witnesses and the
production of documentary evidence in his favor through the compulsory process of subpoena or subpoena duces
tecum.

Appeals and Petition for Reconsideration

Appeals, where allowable, shall be made by the party adversely affected by the decision within fifteen days from
receipt of the decision unless a petition for reconsideration is seasonably filed, which petition shall be decided within
fifteen days.

A petition for reconsideration shall be based only on any of the following grounds:

(a) new evidence has been discovered which materially affects the decision rendered;
(b) the decision is not supported by the evidence on record; or
(c) error of law or irregularities have been committee which are prejudicial to the interests of the respondent.

Only one petition for reconsideration shall be allowed.

Mendez v. Civil Service Commission

The remedy of appeal in civil service cases may be availed of only in a case where respondent is found
guilty of the charges against him. But when the respondent is exonerated of said charges, as in this case, there is
no occasion for appeal. PD 807 shows that it does not contemplate a review of decisions exonerating officers or
employees from administrative charges. Party adversely affected by the decision in Section 39 of the Civil Service
Law refers to the government employee against whom case was filed.

Summary Proceedings
No formal investigation is necessary and the respondent may be immediately removed or dismissed if any
of the following circumstances is present:

(1) When the charge is serious and the evidence if guilt is strong;
(2) When the respondent is a recidivist or has been repeatedly charged and there is reasonable ground to
believe that he is guilty or the present charge; and

(3) When the respondent is notoriously undesirable.

Preventive Suspension

The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority
pending an investigation, if the charge against such officer or employee involves:

(a) dishonesty; or
(b) oppression or grave misconduct; or
(c) neglect in the performance of duty; or
(d) if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from
the service.

Maximum period for preventive suspension is ninety (90) days for national officials. Under the Local Government
Code, local appointive and elective officials may be preventively suspended for only sixty (60) days. If the case is filed
in the Ombudsman, the latter may impose a preventive suspension for a period of six (6) months.

When the administrative case against the officer or employee under preventive suspension is not finally decided by
the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not
a presidential appointee, the respondent shall be automatically reinstated in the service.

Penalty

In meting out punishment, the same penalties shall be imposed for similar offenses and only one penalty shall be
imposed in each case.

The disciplining authority may impose the penalty of removal from the service, demotion in rank, suspension for not
more than one year without pay, fine in an amount not exceeding six months salary, or reprimand. (Sec. 46(d), Book V,
EO 292)

If the respondent is found guilty of two or more charges or counts, the penalty imposed should be that
corresponding to the most serious charge or count and the test may be considered as aggravating circumstances.
(Sec. 17 of the Implementing Civil Service Rules and Regulations)

A reprimand whether given by the Civil Service Commission or the head of department or agency shall be
considered a penalty. However, a warning or an admonition shall not be considered a penalty. (Sec. 15 of the
Implementing Civil Service Rules and Regulations)

Tobias v. Veloso

Reprimand is a penalty. In this case, police chief is not entitled to back wages as Sec. 16 of the Police Act of
 1966 expressly provides that a suspended member of the police force shall be entitled to his salary for the period of
his suspension upon exoneration. A reprimand is not equivalent to an exoneration. It is more severe than an
admonition, which is considered a mild rebuke. A reprimand is administered to a person in fault by his superior
officer or a body to which he belongs. It is an administrative penalty, although it may be slight form of punishment.

NOTE: A warning is an act or fact of putting one on his guard; an admonition is a

gentle or friendly reproof or a mild rebuke; while a reprimand is a formal and public
censure or a severe reproof.

Removal of Administrative Penalties or Disabilities

In meritorious cases and upon recommendation of the CSC, the President may commute or remove administrative
penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such terms and conditions
as he may impose in the interest of the service.

Over Elective Officials

Impeachment

A verified complaint may be filed by any member of the House of Representatives or by any citizen upon a
resolution of endorsement by any member thereof.

Complaint shall be included in the Order of Business within ten sessions days and referred to the proper Committee
within three sessions days thereafter.

The Committee, after hearing, and by a majority vote of all its members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding resolutions. The resolution shall be calendared
for consideration of the House within ten session days from receipt thereof.

A vote of at least one-third of all the members of the House shall be necessary either to affirm a favorable
resolution with the Articles of Impeachment of the Committee, or override its contrary resolution.

In case the verified complaint or resolution of impeachment is filed by at least one-third of all the members of the
House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose,
the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the
Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of
all the members of the Senate.

Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold
office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to
prosecution, trial and punishment according to law.

No impeachment proceedings shall be initiated against the same official more than once within a period of one
year.

Local Elective Officials (Sec. 60-68, Local Government Code)

Grounds for Disciplinary Actions

(1) Disloyalty to the Republic of the Philippines

(2) Culpable violation of the Constitution

(3) Dishonesty, oppression, misconduct in office, gross negligence, or

dereliction of duty

(4) Commission of any offense involving moral turpitude or an offense punishable by

at least prision mayor

(5) Abuse of authority

(6) Unauthorized absence for fifteen (15) consecutive days, except in the case of members of the sangguniang
panlalawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay

(7) Application for, or acquisition of, foreign citizenship or residence or the status of
an immigrant of another country

(8) Such other grounds as may be provided in this Code and other laws.

Procedure

(1) Verified Complaint

A verified complaint may be filed against any erring local elective official and submitted to the following disciplinary
authorities:

Office of the President - elective official of a province, a highly urbanized

city, an independent component city or component city;

Sangguniang panlalawigan - elective official of a municipality

Sangguniang panlungsod or
sangguniang bayan - elective barangay official

(2) Answer

Within seven (7) days after the administrative complaint is filed, the Office of the President or the sanggunian
concerned, as the case may be, shall require the respondent to submit his verified answer within fifteen (15) days from
receipt thereof

(3) Investigation

The investigation of the case shall be commenced within ten (10) days after receipt of such answer of the
respondent.

However, no investigation shall be held within ninety (90) days immediately prior to any local election, and
no preventive suspension shall be imposed within the said period.
Preventive Suspension

Preventive suspension may be imposed:

a) By the President: if the respondent is an elective official of a province,

a highly urbanized or an independent component city;

b) By the governor: if the respondent is an elective official of a

component city or municipality; or

c) By the mayor: if the respondent is an elective official of the

barangay.

Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong,
and given the gravity of the offense, there is great probability that the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.

However, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days.

Furthermore, in the event that several administrative cases are filed against an elective official, he cannot be
preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and
known at the time of the first suspension.

Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office
without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred
twenty (120) days from the time he was formally notified of the case against him.

Note: The respondent official preventively suspended from office shall receive no salary or
compensation during such suspension; but upon subsequent exoneration and reinstatement, he shall be paid full
salary or compensation including such emoluments accruing during such suspension.

Note: No preventive suspension shall be imposed within ninety (90) days immediately prior to
any local election. If preventive suspension has been imposed prior to the 90-day period immediately preceding
local election, it shall be deemed automatically lifted upon the start of the aforesaid period.

Rights of Respondent

The respondent shall be accorded full opportunity to appear and defend himself in person or by counsel, to confront
and cross-examine the witnesses against him, and to require the attendance of witnesses and the production of
documentary process of subpoena or subpoena duces tecum.

Form and Notice of Decision

The investigation of the case shall be terminated within ninety (90) days from the start thereof.

Within thirty (30) days after the end of the investigation, the Office of the President or the sanggunian concerned
shall render a decision in writing stating clearly and distinctly the facts and the reasons for such decision.

The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for
 every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long
as he meets the qualifications required for the office.

The penalty of removal from office as a result of an administrative investigation shall be considered a bar to the
candidacy of the respondent for any elective position.

Administrative Appeals

Decisions in administrative cases may, within thirty (3) days from receipt thereof, be appealed to the following:

a) The sanggunian panlalawigan: in the case of decisions of:

(1) sangguniang panlungsod of component cities; and

(2) sangguniang bayan;

b) The Office of the President: in the case of decisions of:

(1) the sangguniang panlalawigan;

(2) the sangguniang panlungsod of highly urbanized cities;
(3) the sangguniang panglungsod of independent component cities.

Decisions of the Office of the President shall final and executory.

Execution Pending Appeal

An appeal shall not prevent a decision from becoming final or executory. The respondent shall be considered as
having been placed under preventive suspension during the pendency of an appeal in the event he wins such appeal. In
the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the pendency
of the appeal.

TERMINATION OF OFFICIAL RELATIONS

Modes of Termination

1) Expiration of Term or Tenure of Office

a) End of a fixed term

b) End of Pleasure where one holds office at pleasure of appointing authority
c) Loss of confidence in primarily confidential employment

2) Reaching the age limit; Retirement

3) Bona fide abolition of office
4) Abandonment of office
5) Acceptance of an incompatible office
6) Resignation
7) Resignation
8) Removal for cause
9) Temporary appointments termination
10) Recall
11) Impeachment
12) Prescription of right to office
13) Death
14) Conviction of crime where disqualification is an accessory penalty
15) Filing of certificate of candidacy
16) Performance of act or accomplishment of purpose for which the office was created

Expiration of Term or Tenure of Office

End of Fixed Term

Upon the expiration of the officers term, unless he is authorized by law to hold over, his rights, duties and
authority as a public officer must be ipso facto terminated.

End of pleasure where one holds office at the pleasure of the appointing authority

Alba v. Evangelista

President can validly terminate tenure of Vice Mayor of Roxas City as the office was created at the pleasure of
the President. What is involved here is not the question of removal, or whether legal cause should precede or not
that of removal. What is involved here is the creation of an office and the tenure of such office, which has been
made expressly dependent upon the pleasure of the President.

Fernandez v Ledesma

The Charter of Basilan City provides that the President shall appoint and may remove at his discretion any of the
citys officers, including its Chief of Police, with the exception of the municipal judge, who may be removed only
according to law. The legislative intent is to make continuance in office dependent upon the pleasure of the
President. Congress has the power to vest such power of appointment. Further, A public office is the right for a
given period, either fixed by law or enduring at the pleasure of the creating power. Alba v. Evangelista states that
the replacement is not removal, but an expiration of tenure, which is an ordinary mode of terminating official
relations. What is involved is not removal, or whether legal cause should precede such removal, but the creation of
an office and the tenure of such office, which has been made expressly dependent upon the pleasure of the
President.

Loss of Confidence in Primarily Confidential Employment

Hernandez v. Villegas

Even officers and employees of the civil service occupying primarily confidential positions are subject to the
constitutional safeguard against removal or suspension except for cause.

Official and employees holding primarily confidential positions continue only for so long as confidence in them
endures. The termination of their official relation can be justified on the ground of loss of confidence because in that
case, their cessation from office involves no removal but merely the expiration of the term of office.
 Ingles v. Mutuc

The statement that an officer holding a position which is primarily confidential in nature is subject to removal at
the pleasure of the appointing power is inaccurate. Such statement (a mere obiterin the case of De los Santos v.
Mallare), if detached from the context of the decision in said case, would be inconsistent with the constitutional
command to the effect that no officer or employee in the Civil Service shall be removed or suspended except for
cause as provided by law, and it is conceded that one holding in the government a primarily confidential positions is
in the Civil Service.

This should not be misunderstood as denying that the incumbent of a primarily confidential position holds office
at the pleasure only of the appointing power. It should be noted however, that when such pleasure turns into
displeasure, the incumbent is not removed or dismissed from office - his term merely expires in much the
same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had been
appointed or elected is not and cannot be deemed removed or dismissed therefrom, upon the expiration of said
term. The main difference between the former - the primarily confidential officer - and the latter is that the latters
term is fixed or definite, whereas that of the former is not pre-fixed but indefinite, at the time of his appointment or
election, and becomes fixed and determined when the appointing power expresses its decision to put an end to the
services of the incumbent. When this event takes place, the latter is not removed or dismissed from officer - his
term has merely expired.

Gray v. De Vera

President appointed Gray as Board secretary of the Peoples Homesite and Housing Corporation but
was later terminated through a board resolution due to loss of confidence. SC reversed ruling that Grays
appointment was a permanent one. Although the President, EO 99, declared the position of secretary to the board
of a government corporation primarily confidential in nature, it does not follow that a board secretary whose
appointment was permanent may be removed from office without a formal charge specifying the ground for removal
and without giving him an opportunity to be head. Such removal was illegal since there was no lawful cause for
removal.

By declaring that the position is primarily confidential in nature, the President intended that the position be filled
by an appointee of unquestioned honesty and integrity. The act of Gray in reporting the boards act of
mismanagement and misconduct was in consonance with the honesty and integrity required for the position.

Cario v. ACCFA

SC reversed termination of lawyers who were appointed as permanent employees of ACCFA. That petitioners
positions are primarily confidential is immaterial. The Constitution merely excepts primarily confidential positions
from the coverage of the rule requiring appointments in the civil service to be made on the basis of merit and
fitness as determined from the competitive exams, but does not exempt such positions from the operation of the
principle that no officer or employee in the civil service shall be removed or suspended except for cause as provided
by law, which recognizes no exception.

Reaching the Age Limit; Retirement

Conditions for entitlement to retirement benefits (R.A. No. 8291)

a) he has rendered at least fifteen (15) years of service;

b) he is at least sixty (60) years of age at the time of retirement; and
c) he is not receiving a monthly pension benefit from permanent total disability.

Compulsory Retirement

Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at least sixty-
five (65) years of age with at least fifteen (15) years of service; Provided that if he has less than fifteen (15) years of
service, he may be allowed to continue in the service in accordance with existing civil service rules and regulations.

Retirement benefits

(1) the lump sum payment defined in RA No. 8291 payable at the time of retirement plus an
old-age pension benefit equal to the basis monthly pension payable monthly for life, starting upon expiration of the
give-year (5) guaranteed period covered by the lump sum; or

(2) cash payment equivalent to eighteen (18) months of his basic monthly pension plus monthly pension for life
payable immediately with no five-year (5) guarantee.

Beronilla v GSIS

The compulsory retirement of government officials and employees upon reaching the age of 65 years is founded
on public policy which aims by it to maintain efficiency in the government service and, at the same time, give to the
retiring public servants the opportunity to enjoy during the remainder of their lives the recompenses for their long
service and devotion to the government, in the form of a comparatively easier life, freed from the rigors, discipline
and the exacting demands that the nature of their work and their relations with their superiors as well as the public
would impose on them.

UP Board of Regents v. Auditor General

A BOR resolution extended the services of a UP professor for another year. In the same year, he reached the
age of 65. The Auditor General questioned the legality of the resolution arguing that the services rendered after the
compulsory retirement age were illegal and that he was not entitled to compensation. SC upheld Auditor General
ruling that as government employees, UP professors are compulsorily covered by the Retirement Law which
creates a uniform retirement system for all members of the GSIS.

Rabor v. CSC

At the age of 55, Rabor was hired as a government employee at the Davao City Mayors Office in 1978. In 1991,
he was advised to apply for retirement. He was already 68 years old with 13 years of service. He requested that his
services be extended in order that he may complete the 15-year service requirement. This was denied and Rabor
claimed that the doctrine enunciated in Cena v. CSC should be applied in his case.

SC ruled that the Cena doctrine is not applicable. CSC Memo Circular No. 27, s. of 1990 cited in the decision in
Cena v. CSC, provides that any request for the extension of service of compulsory retirees to complete the 15-year
service requirement for retirement shall be allowed only to permanent appointees in the career service who are
regular GSIS members, and shall be granted for a period not exceeding one (1) year. Cena further stated that the
authority to grant the extension was a discretionary one vested in the head of the agency concerned. To reiterate,
the head of the government agency concerned is vested with discretionary authority to allow or disallow extension
of service of an employee who has reached 65 years old without completing 15 years of government service; this
discretion to be exercised conformably with CSC Memo Circular No. 27, s. of 1990.
Bona Fide Abolition of Office

As a general rule, absent some Constitutional prohibition, Congress may abolish any office it creates without
infringing upon the rights of the officer or employee affected.

To consider an office abolished, there must have been an intention to do away with it wholly and permanently.

Termination by virtue of the abolition of the office is to be distinguished from removal. There can be no tenure to a
non-existent office. After the abolition, there is in law no occupant. In case of removal, there is an office with an
occupant who would thereby lose his position. It is in that sense that from the standpoint of strict law, the question of
any impairment of security of tenure when there is an abolition of office does not arise. The right itself disappeared with
the abolished office as an accessory following the principal.

Busacay v. Buenaventura

Busacay was laid off as toll collector when the bridge was destroyed. However, the bridge was later
reconstructed and opened to the public with a new collector being appointed. Busacay was ordered reinstated by
the SC. To consider an office abolished, there must have been an intention to do away with it wholly and
permanently. In the case at bar, there was never any thought of not rebuilding the bridge. The collapse of the bridge
did not work to destroy but only to suspend the position of toll collector thereon, and upon its reconstruction and re-
opening, the collectors right to the position was similarly and automatically restored.

Manalang v. Quitoriano

The National Employment Service was established by R.A. No. 761 in lieu of the Placement Bureau. Quitoriano
was appointed as NES Commissioner in spite of the recommendation of the Labor secretary to appoint Manalang
who was the incumbent Director of the Placement Bureau. SC held that appoint of Quitoriano was valid. A removal
implies that the office still exists. R.A. No. 761, creating NES, expressly abolished the Placement Bureau and, by
implication, the office of the Director of the Placement Bureau. Had Congress intended the NES to be a mere
enlargement of the Placement Bureau, it would have directed the retention, not the transfer, of qualified personnel
to the NES. Manalang has never been NES Commissioner and thus could not have been removed therefrom.

Abolition Must Be in Good Faith

As well settled to the rule that the abolition of an office does not amount to an illegal removal or separation of its
incumbent is the principle that, in order to be valid, the abolition must be made in good faith, not for personal or political
reasons, and not implemented in violation of law.

Briones v. Osmea

Briones and Rosagaran were employees in the Office of the City Mayor since 1937 and 1940, respectively, In
1956, the City created 35 new positions and abolished 32, of which the positions of Briones and Rosagaran were
included. Consequently, the two were terminated. SC held that the termination was not valid. While abolition does
not imply removal of the incumbent, this rule is true only where the abolition is made in good faith. In other words,
the right to abolish cannot be used to discharge employees in violation of the Civil Service law nor can it be
exercised for personal or political reasons.

Facundo v. Pabalan
 There is no law which expressly authorizes a municipal council to abolish the positions it has created. However,
the rule is well-settled that the power to create an office includes the power to abolish it, unless there are
constitutional or statutory rules providing otherwise. But the office must be abolished in good faith.

Cruz v. Primicias

As well settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is
the principle that, in order to be valid, the abolition must be made in good faith. Where the abolition is made in bad
faith, for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service
employees, it is null and void. In the case at bar, while 22 positions were abolished, 28 new positions with higher
salaries were simultaneously created. No charge of inefficiency is lodged against petitioners. In truth and in fact,
what respondents sought to achieve was to supplant civil service eligibles with men of their choice, whose tenure
would be totally dependent upon their pleasure and discretion.

Reorganization

Reorganization occurs where there is an alteration of the existing structure of government offices or units therein,
including the lines of control, authority and responsibility between them to promote greater efficiency, to remove
redundancy of functions, or to effect economy and make it more responsive to the needs of their public clientele. It may
result in the loss of ones position through removal or abolition of office. Reorganization of the government may be required
by law independently of specific constitutional authorization. But in order to be valid, it must also be done in good faith.

Board of Directors of PCSO v. Alandy

Alandy was the incumbent Assistant General Manager of the PCSO. In 1954, Resolution No. 314 was passed to
reorganize the PCSO. The position of Assistant General Manager was converted to General Field Supervisor to
which Alandy was appointed. However, in 1955, the position of Assistant General Manager was again created
through Resolution No. 422 and a different person was appointed to the position. SC invalidated the new
appointment and reinstated Alandy to his position as PCSO Assistant General Manager. What occurred here is that
the position of Assistant General Manager was not abolished but was merely converted to another position. As
such, the conversion merely caused the giving of additional functions to Alandy, who still held the position of
Assistant General Manager.

Dario v. Mison

In pursuance of its reorganization policy, Pres. Aquino issued EO 127 in 1987 which provided for the
reorganization of the Bureau of Customs. Pursuant to EO 127, Commissioner Mison terminated a total of 310
employees. Upon appeal, the CSC ordered the reinstatement of 283 employees which was upheld by the SC. The
dismissal are not valid. There is no dispute that pursuant to the Freedom Constitution and the various executive
orders issued by Pres. Aquino, the different departments of government were authorized to carry on reorganization
programs. But the nature and extent of the power to reorganize were circumscribed by the source of the power
itself. The Reorganization process is made up of two stages. The first stage, which was effected pursuant to
Proclamation 3, allowed removals not for cause, and it ended on 02 February 1987. On the other hand, the
second stage is a continuing one from 02 February 1987 pursuant to the 1987 Constitution. The 1987 Constitution
requires that removal not for cause must be a result of reorganization. Such removals must also pass the test of
good faith, a test obviously not required under the first stage which was envisioned as a purgation.

A reorganization is carried out in good faith if it is for the purpose of economy or to make the bureaucracy more
efficient. Good faith, as a component of reorganization under a constitutional regime, is judged from the facts of
each case. In the case at bar, there was lack of good faith. Misons argument that the reorganization is progressive
would be valid only if it was pursuant to Proclamation 3. However, in spite of her immense revolutionary power,
 Pres. Aquino still promulgated EO 17 which established

safeguards against the propensity that accompany reorganizations and established the rule that dismissals should
be based on findings of inefficiency, graft and unfitness to render public service. Assuming then that the
reorganization in the first stage was progressive and still valid, such dismissals as ordered by Mison would still have
to comply with the terms set down in EO 17.

Rubenecia v. CSC

SC upheld power of the CSC to transfer jurisdiction over administrative appeals from the Merit Systems
Protection Board to the CSC en banc itself. The 1987 Administrative Code made clear that the MPSB was intended
to be an office of the CSC like any other of the other 13 offices in the CSC. In other words, the MPSB was a part of
the internal structure and organization of the CSC. It was not an autonomous entity created by law and merely
attached for administrative purposes to the CSC. Thus, it was a proper subject of organizational change which the
CSC is authorized to undertake under the present Civil Service law. The resolution merely re-allocated to the CSC
itself the functions of the MPSB relating to the determination of administrative disciplinary cases to streamline the
operation of the CSC. It did not purport to abolish the MPSB nor to effect the termination of the relationship of
public employment between CSC and any of its officers or employees.

Abandonment of Office

A public office may become vacant ipso facto by abandonment and non-user. When an office is once abandoned,
the former incumbent cannot legally repossess it even by forcible re-occupancy.

Abandonment must be total and absolute, and must be under such circumstances as clearly to indicate an absolute
relinquishment thereof. Moreover, the officer should manifest a clear intention to abandon the office and its duties.
Abandonment by reason of acceptance of another office, in order to be effective and binding, must spring from and be
accompanied by deliberation and freedom of choice, either to keep the old office or renounce it for another. Temporary
absence is not sufficient.

Summers v. Ozaeta

Summers, a cadastral judge, assumed office as CFI judge due to an ad interim appointment. However, the ad
interim appointment was disapproved and Summers now seeks to be reappointed as cadastral judge. SC held that
Summers voluntary acceptance of the position of CFI judge amounted to a waiver of his right to hold the position of
cadastral judge during the term fixed and guaranteed by the Constitution. He accepted and qualified for the position
of judge-at-large by taking the oath of office of judge-at-large, and not merely of an acting judge-at-large. The
situation is one wherein he cannot legally hold two offices of similar category at the same time.

Zandueta v. Dela Costa

When a public official accepts an appointment to an office newly created or reorganized by law which new office
is incompatible with his former office, qualifies for the position, takes the necessary oath, and executes acts
inherent in the newly created office, he will be considered to have abandoned the office he was occupying by virtue
of his former appointment and he cannot question the constitutionality of the law by virtue of which he was
appointed.
 Floresca v. Quetulio

Florescas refusal to assume his pre-war post as Justice of the Peace and his subsequent acceptance of other
employments without any pretense on his part that he simultaneously continued to perform the functions of the
Justice of the Peace, clearly show deliberate abandonment of the latter office.

Ortiz v. De Guzman

Ortiz allowed three years to elapse since he was ousted from office without having taken any steps to reclaim his
former office. SC held that he cannot ask for reinstatement. A public employee who voluntarily abandons his office
for a long time is estopped from asking for reinstatement. In order to constitute an abandonment of office, it must be
total, and under such circumstances as to clearly indicate an absolute relinquishment. Temporary absence is not
sufficient where no statute fixes the period beyond which the absence must continue. In all cases, the officer should
manifest a clear intention to abandon the office and its duties. Yet, this intention may be inferred from his conduct. If
his acts and statements are such as to clearly indicate absolute relinquishment, a vacancy will be thereby created
and no judicial determination is necessary. When once abandoned, the former incumbent cannot legally repossess
the office.

Madrid v. Auditor General

One claiming the right to a position in the civil service must institute the proper proceeding within one year from
the date of separation, otherwise he is deemed to have abandoned his office or even acquiesced or consented to
his removal, and thus is not entitled to seek reinstatement. The rationale is to inform the Government of the rightful
holder of the office and to prevent payment of salary to both claimants.

Magana v. Auditor General

Having accepted the benefits accruing from the abolition of his office, he is estopped from questioning its validity
or deemed to have waived the right to contest the same.

Villegas v. Subido

Villegas did not abandon his office as mayor of the City of Manila when he assumed the position of Director of
NAWASA because he had been merely designated in an acting capacity and was not appointed to the said position.

Tan v. Gimenez

The fact that, during the time his appeal was pending and was thus deprived of his office and salary, an
employee sought employment in another branch of the government does not constitute abandonment of his former
position.

Acceptance of an Incompatible Office

He who, while occupying one office, accepts another office incompatible with the first, ipso facto absolutely vacates
the first office. That the second office is inferior to the first does not affect the rule. And even though the title to the
 second office fails as where election is void, the rule is still the same, nor can the officer then regain the possession of
his former office to which another has been appointed or elected.

If the law or Constitution as an expression of public policy forbids the acceptance by a public officer of any other
office other than that which he holds, it is not a case of incompatibility but of legal prohibition.

Incompatibility of offices exists where:

(a) There is conflict in such duties and functions so that the performance of the duties of one interferes with
the performance of the duties of another, as to render it improper for considerations of public policy for one
person to retain both.

(b) One is subordinate to the other and is subject in some degree to its supervisory powers for in such
situation where both are held by the same person, the design that one acts as a check on the other would
be frustrated.

(c) The Constitution or the law itself, for reasons of public policy, declares the incompatibility even though
there is no inconsistency in the nature and functions of the offices.

Exceptions to the Rule on Holding of Incompatible Offices

(a) Where the officer cannot vacate the first office by his own act, upon the principle that he will not be
permitted to thus do indirectly what he could not do directly, as where the law requires the approval of the
provincial board before a municipal official can resign.

(b) First office is held under a different government from that which conferred the second.

(c) Officer is expressly authorized by law to accept another office.

(d) Second office is temporary.

Resignation

A resignation of a public officer need not be in any particular form, unless some form is prescribed by statute.
Ordinarily, it may either be in writing or by parol. The conduct of an employee may properly be regarded as constituting
a resignation from the position held by him. However, to constitute a complete and operative resignation of public office,
there must be an intention to relinquish a part of the term, accompanied by the act of relinquishment.

The right of a public officer to resign is well recognized, even where it is provided than an officer may hold over until
election and qualification of a successor. The right is sometimes recognized or secured by constitution or statute.

The views in the various jurisdictions are conflicting in regard to what constitutes acceptance of a resignation and
whether an acceptance is required. According to some authorities, no acceptance is necessary to render a resignation
effective, especially when the resignation is unconditional and purports to take effect immediately. Indeed, it may be
provided by statute that the resignation of a public officer is to take effect at the time of filing it.

However, many other cases take the view that to be effective, the resignation must be accepted by competent
authority. Without acceptance, the resignation is nothing and the officer remains in office. (63 Am Jur 2d., sec. 163)
Prof. Barlongay: Two (2) elements are necessary to constitute an effective acceptance:

(1) intention to relinquish office coupled with actual relinquishment; and

(2) acceptance of resignation.

Gonzales v. Hernandez

Gonzales filed a letter of resignation the pertinent portion of which reads: x x x subject to the result of my
appeal with the Civil Service Board of Appeals, and to the provisions of the Resolution of the Cabinet on July 17,
1939. SC held that Gonzales, although his conditional resignation was unconditionally accepted, cannot be
considered as having resigned from office. There was no resignation to speak of. To constitute a complete and
operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his
position. In the case at bar, there was no such intention as Gonzales resignation was subject to the result of his
appeal.

Ortiz v. COMELEC

Petitioners separation from the government as a result of the reorganization ordained by former Pres. Aquino
may not be considered a resignation within the laws contemplation. Resignation is defined as the act of giving up or
the act of an officer by which he declines his office and renounces the further right to use it. To constitute a complete
and operative act of resignation, the officer or employee must show a clear intention to relinquish his position
accompanied by the act of relinquishment and its acceptance by competent and lawful authority. Based on the
facts, petitioners resignation lacks the element of clear intention to surrender his position. We cannot presume such
intention from the letter he sent placing himself at the disposal of the President. He did not categorically state that
he was unconditionally giving up his position. It should be good to note that said letter was actually a response to
Proclamation No. 1 of Pres. Aquino calling all appointive public officials to offer their courtesy resignation.

A courtesy resignation cannot properly be interpreted as resignation in a legal sense. It just manifests the
submission of a person to the will of the political authority.

Prof. Barlongay: Courtesy resignation is not allowed in (1) career positions and (2) non-career positions with security
of tenure (i.e. local elective officials).

Removal for Cause

No officer or employee of the civil service shall be removed or suspended except for cause provided by law (Sec.
2(3), Art. IX, 1987 Constitution).

Grounds for Removal from Office

For Presidential appointees, Prof. Barlongay states that there is no specific law providing for the grounds for their
removal. Determination of grounds is just a matter of practice and by analogy, the grounds used for non-presidential
appointees are made applicable.

For civil service officials and employees, see Sec. 46, Book V, E.O. No. 292 which provides for at least 30 grounds
 for disciplinary action.

For local elective officials, Sec. 60 of the Local Government Code provides for the grounds where an elective local
official may be disciplined, suspended or removed from office.

Misconduct need not be in office in case of appointive officers.

Misconduct must be in office in case of elective officers.

Nera v. Garcia

Under the Revised Administrative Code, the rule in preventive suspension provides that a Bureau Chief may
suspend, with the approval of the head of the department, any subordinate officer or employee if he is charged with
dishonesty, oppression or grave misconduct or neglect in the performance of duty. The same words are expressed
in the civil service law. From these provisions, suspension was proper even if the dishonest act was not in the
performance of his duty since under the Revised Administrative Code and the Civil Service Law, dishonesty was not
qualified by the phrase in the performance of duty.

Ochate v. Ty Deling

The SC held that the facts alleged in the administrative charge, as substantiated by the affidavits of the
complainants, do not justify the administrative proceedings instituted against the petitioner and his suspension by
the governor. The alleged libel imputed to the mayor was not such misconduct even if the term misconduct in
office be taken in its broadest sense. The radio broadcast in which the objectionable utterances were made had
nothing to do with his official functions and duties as a mayor.

Misconduct committed during a prior term, not a ground for dismissal

Pascual v. Provincial Board

The SC held that the weight of authority follows the rule which denies the right to remove one from office
because of misconduct during a prior term. Offenses committed or acts done during a previous term are generally
held not to furnish cause for removal and this is especially true where the Constitution provides that the penalty in
proceedings for removal shall not extend beyond the removal from office and disqualification from holding office for
the term for which the officer was elected and appointed. The underlying theory is that each term is separate from
other terms and that re-election to office operates as a condonation of the officers previous misconduct to the
extent of cutting off the right to remove him therefore.

Aguinaldo v. Santos

SC held that Aquinaldo should not be removed from office. His re-election to the position of Governor of
Cagayan has rendered the administrative case pending before it moot and academic.

Offenses committed or acts done, during a previous term are generally not held to furnish cause for removal.
The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise
would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it
must be assumed that they did this with knowledge of his life and character, and that they
 disregarded or forgave his fault or misconduct, if guilty of any. It is not for the court, by reason of such fault or
misconduct, to practically overruled the will of the people.

The rule then is that a public officer cannot be removed for administrative misconduct committed during a prior
term, since his reelection to office operates as a condonation of the officers previous misconduct to the extent of
cutting off the right to remove him therefore. This rule, however, is not applicable to criminal cases pending against
the petitioner for acts he may have committed during the failed coup.

Transfer from One Position to Another May or May Not Constitute

Violation of Security of Tenure

A transfer is a movement from one position to another which is of equivalent rank, level, or salary without break in
service involving the issuance of an appointment.

It shall not be considered disciplinary when made in the interest of public service, in which case, the employee
concerned shall be informed of the reasons therefore. If the employee believes that there is no justification for the
transfer, he may appeal to the SC.

The transfer may be from one department or agency to another or from one organizational unit to another in the
same department or agency; Provided, however that any movement from the non-career service to the career service
shall not be considered a transfer.

Lacson v. Romero

Lacson was appointed provincial fiscal of Negros Oriental by the President. However, three years after, another
person was appointed to the same position while Lacson was nominated to the position of provincial fiscal of Tarlac.
Lacson never accepted the appointment and did not assume the duties of said office. The SC held that Lacson has
the right to occupy the office of provincial fiscal of Negros Oriental as he neither accepted nor assumed the office of
provincial fiscal of Tarlac and no one can compel his to do so.

The intended transfer of Lacson to Tarlac, if carried out without the approval of Lacson, would be equivalent to a
removal from his office in Negros Oriental. The reason is that a fiscal is appointed for each province and Lacson
could not legally hold and occupy the two posts of fiscal of Tarlac and Negros Oriental simultaneously. Therefore, to
be a fiscal of Tarlac must mean his removal from office in Negros.

Since the transfer in the case at bar is considered a removal, such should be for cause in order for the other
person to legally occupy the office in Negros. There was no cause for Lacsons removal. He therefore remains as
fiscal of Negro.

Termination of Temporary Appointment

Quitiquit v. Villacorta
 The appointment being temporary in character, the same can be terminated at pleasure by the appointing power.

Ferrer v. de Leon

One holding an office in a temporary capacity may be ousted at anytime with or without cause.

What determines character of appointment

Hojilla v. Marino

The controlling factor in determining the character of the appointment is the appointment itself. Even if a position
is permanent, if the appointment is made temporary, the appointment is determinative. What is determinative is not
the nature of the office (permanent or temporary), but the nature of the appointment.

One appointed to a position of another who was illegally suspended or dismissed, holds it in temporary capacity
and must yield to the latter. The reason for this is that there was no valid termination.

Recall

The Congress shall enact a local government code which shall provide for a more responsive and accountable
local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative
and referendum (Sec. 3, Art. X, 1987 Constitution)

Procedure for recall is provided in Sections 69-75 of the Local Government Code.

Garcia v. COMELEC

SC upheld initiation of recall through the Preparatory Recall Assembly. Recall is a mode of removal of a public
officer by the people before the end of his term of office. The peoples prerogative to remove a public officer is an
incident to their sovereign power, and in the absence of constitutional restraint, the power is implied in all
government operations. There are two reasons why a Preparatory Recall Assembly is allowed: (1) to diminish the
difficulty of initiating recall through direct action of the people; (2) to cut down on expenses. Moreover, the
Constitution does not provide for any particularly mode of initiating recall elections. Initiation by the Preparatory
Recall Assembly may be considered as initiation of recall by the people, although done indirectly through
representatives. In any event, the composition of the Preparatory Recall Assembly is politically neutral, so loss of
confidence cannot be said to be inspired by difference in political party affiliation.

Prescription of Right to Office

Unabia v. City Mayor

No reinstatement is possible in the case at bar. Even if the removal was void for lack of cause, Unabia filed his
petition for reinstatement with the CFI after a delay of one year and fifteen days. Any person claiming a right to a
position in the civil service is required to file his petition for reinstatement within one year, otherwise he is deemed to
have abandoned his office. Reason is public policy and convenience, stability in the public service.

Prof. Barlongay: The one-year period is the prescriptive period to claim public office (whether through quo warranto
 or otherwise). The one-year period presupposes judicial action, not administrative action.

Filing of Certificate of Candidacy

Sec. 66 of the Omnibus Election Code states that any person holding appointive public offices or positions,
including active AFP members, is considered ipso facto resigned from office by the mere filing of certificate of
candidacy.

Only the moment and act of filing are considered. Once the certificate is filed, the seat is forever forfeited and
nothing, save a new election or appointment, can restore the ousted official.

Note: The following provisions have been repealed by Sec. 14 of R.A. 9006 (Fair Election Act of 2001):

Sec. 67 of B.P. 881 which states that any elective official, whether national or local, running for any office
OTHER than one which he is holding in a permanent capacity, except for President and Vice President, shall
be considered ipso facto resigned from office by the mere filing of a certificate of candidacy.

The first proviso of Sec. 11 of R.A. 8436 which states that "Any elective official, running for any officer other
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."

Performance of Act or Accomplishment of Purpose for which the Office was Created

Performance of act or accomplishment of purpose renders office functus officio.

Executive Order No. 292 [BOOK I/Chapter 9-General

Principles Governing Public Officers]
Signed on July 25, 1987

CHAPTER 9

General Principles Governing Public Officers

SECTION 32. Nature of Public Office.Public office is a public trust. Public officers and employees
must at all times be accountable to the people, serve them with the utmost responsibility,
integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.

SECTION 33. Policy on Change of Citizenship.Public officers and employees owe the State and
the Constitution allegiance at all times, and any public officer or employee who seeks to change
his citizenship or acquire the status of an immigrant of another country during his tenure shall be
dealt with by law.
SECTION 34. Declaration of Assets, Liabilities and Net Worth.A public officer or employee shall,
upon assumption of office and as often thereafter as may be required by law, submit a declaration
under oath of his assets, liabilities, and net worth.

SECTION 35. Ethics in Government.All public officers and employees shall be bound by a Code
of Ethics to be promulgated by the Civil Service Commission.

SECTION 36. Inhibition Against Purchase of Property at Tax Sale.No officer or employee of the
government shall purchase directly or indirectly any property sold by the government for the non-
payment of any tax, fee or other public charge. Any such purchase by an officer or employee shall
be void.

SECTION 37. Powers Incidental to Taking of Testimony.When authority to take testimony or

receive evidence is conferred upon any administrative officer or any non-judicial person,
committee, or other body, such authority shall include the power to administer oaths, summon
witnesses, and require the production of documents by a subpoena duces tecum.

SECTION 38. Liability of Superior Officers.(1) A public officer shall not be civilly liable for acts
done in the performance of his official duties, unless there is a clear showing of bad faith, malice or
gross negligence.

(2) Any public officer who, without just cause, neglects to perform a duty within a period fixed by
law or regulation, or within a reasonable period if none is fixed, shall be liable for damages to the
private party concerned without prejudice to such other liability as may be prescribed by law.

(3) A head of a department or a superior officer shall not be civilly liable for the wrongful acts,
omissions of duty, negligence, or misfeasance of his subordinates, unless he has actually
authorized by written order the specific act or misconduct complained of.

SECTION 39. Liability of Subordinate Officers. No subordinate officer or employee shall be civilly
liable for acts done by him in good faith in the performance of his duties. However, he shall be
liable for willful or negligent acts done by him which are contrary to law, morals, public policy and
good customs even if he acted under orders or instructions of his superiors.

Executive Order No. 292

ADMINISTRATIVE CODE OF 1987