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UP LAW BOC PUBLIC OFFICERS POLITICAL LAW

A. General Principles power, not rights. The government


itself is merely an agency through
which the will of the state is
1. CONCEPT AND APPLICATION expressed and enforced. Its officers
therefore are likewise agents
entrusted with the responsibility of
A. DEFINITION discharging its functions. As such,
The right, authority and duty, created and there is no presumption that they are
conferred by law, by which, for a given period empowered to act, there must be a
either fixed by law or enduring at the delegation of such authority, either
pleasure of the creating power, an individual express or implied. In the absence of
is invested with some portion of the sovereign a valid grant, they are devoid of
functions of government, to be exercised by power. [Villegas v. Subido, G.R. No.
that individual for the benefit of the public. 31711 (1971)]
[Fernandez v. Sto. Tomas, G.R. No. 116418
(1995), quoting MECHEM]
Sec. 1, Art. XI, Constitution. Public office is a
public trust. Public officers and employees
B. BREAKDOWN OF THE DEFINITION must, at all times, be accountable to the
people, serve them with utmost
Nature Right, authority, and duty responsibility, integrity, loyalty, and
Origin Created and conferred by efficiency, act with patriotism and justice, and
law lead modest lives.

Duration For a given period, either: • The provision embodies the nature of
(1) Fixed by law, or a public office as a public trust, and
not as a property right.
(2) Enduring at the
pleasure of the appointing
power D. ESSENTIAL ELEMENTS OF A PUBLIC
Nature of the An individual is invested OFFICE:
Exercise (of the with some portion of the
right, authority, sovereign functions of 1. Created by the Constitution, law, or
and duty) government by authority of law.

Object of the For the benefit of the 2. A delegation of some portion of the
Exercise public sovereign power.
3. Powers and functions are defined by
the Constitution, law, or legislative
C. BASIC CONSTITUTIONAL PRINCIPLES authority.
The Philippines is a democratic and
4. Duties pertaining thereto are
republican State. Sovereignty resides in the
people and all government authority performed independently, without
control of a superior power.
emanates from them. [Sec. 1, Art. II,
Constitution] 5. Continuing and permanent in nature.
[DE LEON]
• This is the central or core provision for
the law on public officers.
• The second sentence, in particular, is
the foundation of the law on public
accountability.
• A public officer exercises delegated
powers: A public official exercises
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Notes on the mode of creation (first perform an executive and sovereign


element) function—to coordinate the
celebrations of the Philippine
A public office must be created by the (a)
Centennial. [Laurel v. Desierto (2002)]
Constitution, (b) national legislation, or (c)
municipal or subordinate legislation, via § While salary is a usual
authority conferred by the Legislature criterion for determining the
nature of a position, it is not a
Notes on the characteristics of a public
necessary condition. The
office (second to fifth elements)
material factor was the
The delegation of a portion of the sovereign delegation of sovereign
powers of government necessarily means functions. [Id.]
that the powers are to be exercised for the
§ While the Court has
benefit of the public.
previously held that a town
o This delegation is the most important fiesta was of a proprietary
element of a public office and nature, a town fiesta cannot
distinguishes it from private compare to the National
employment or a contract. [Laurel v. Centennial Celebrations,
Desierto, G.R. No. 145368 (2002)] which are nation-wide. There
is no hard and fast rule for
o The sovereign powers delegated are
determining the nature of an
either legislative, executive or judicial
undertaking or function. [Id.]
in nature. [Id.]
o Moreover, certain public offices exist
Powers conferred and duties imposed upon
only for a limited period, e.g. Election
the office must be defined, directly or
Board of Canvassers.
impliedly (e.g. by necessary implication).
o Hence, there may be certain GOCCs
which, though created by law, are not 2. CHARACTERISTICS OF A PUBLIC
delegated with a portion of the OFFICE
sovereign powers of the government
(i.e. those that are purely proprietary
in nature), and thus may not be A. PUBLIC OFFICE V. PUBLIC
considered as a public office. EMPLOYMENT
Public employment is broader than public
General Rule: Duties must be performed office. All public office is public employment,
independently and without the control of a but not all public employment is a public
superior power other than the law. office. Public employment as a position lacks
o Exception: Duties of an inferior or either one or more of the foregoing elements
subordinate office that was created or of a public office. It is created by contract
authorized by the Legislature and rather than by force of law. [DE LEON]
which inferior or subordinate office is
placed under the general control of a
superior office or body.
On permanence and continuity (or
“unhindered performance”):
o Permanence and continuity are not
indispensable.
o Hence, even if the tenure of the Chair
of the National Centennial
Commission (NCC) is merely
temporary, it is a public office. The
NCC was an ad-hoc body that was
created by an Executive Order to
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B. PUBLIC OFFICE V. CONTRACT contested office and extinguishes his


Public Office Contract counterclaim for damages. His widow
and/or heirs cannot be substituted in
How Created the counterclaim suit. [Abeja v.
Incident of sovereignty. Originates from will Tañada, G.R. No. 112283 (1994)]
Sovereignty is of contracting
omnipresent. parties.
D. NO VESTED RIGHT IN A PUBLIC OFFICE
Object General Rule: Public office is not property
To carry out the Obligations imposed under the due process clause. There is no
sovereign as well as only upon the vested right to a public office.
governmental functions persons who
Exception: Public office is analogous to
affecting even persons entered into the
property in a limited context and due process
not bound by the contract.
may be invoked when the dispute concerns
contract.
one ‘s constitutional right to security of
Subject Matter tenure. [Lumiqued v. Exevea, G.R. No. 117565
A public office Limited duration (1997)]
embraces the idea of and specific in its N.B. Security of tenure means that the public
tenure, duration, object. Its terms officer cannot be removed without cause [see
continuity, and the define and limit the Sec. 2(2), Art. IX-B, 1987 Constitution] and due
duties connected rights and process [as required by jurisprudence].
therewith are generally obligations of the
continuing and parties, and neither
permanent. may depart 3. CREATION, MODIFICATION AND
therefrom without ABOLITION OF PUBLIC OFFICE
the consent of the
other.
A. CREATION OF PUBLIC OFFICE
Scope
Modes of Creation of Public Office:
Duties are generally Duties are very
continuing and specific to the (1) By the Constitution;
permanent. contract. (2) By statute / law; or
Where duties are defined (3) By a tribunal or body to which the
The law. Contract. power to create the office has been
delegated.
C. PUBLIC OFFICE IS NOT PROPERTY How a Public Office is Created
A public office is not the property of the public General Rule: The creation of a public office
officer within the meaning of the due process is primarily a legislative function.
clause of the non-impairment of the obligation
Exception: Where the office is created by the
of contract clause of the Constitution.
Constitution itself.
• It is a public trust/agency: A public The Sandiganbayan is not a constitutional
office is not property within the court (or public office) but a constitutionally-
constitutional guaranties of due mandated court. It was created by statute
process. As public officers are mere and not the Constitution, hence Congress
agents and not rulers of the people, may limit its powers and jurisdiction. [See
no man has a proprietary or Garcia v. Sandiganbayan, G.R. 114135 (1994)]
contractual right to an office. [Cornejo
v. Gabriel, G.R. No. 16887 (1920)] N.B. The power to create a public office may
be delegated by Congress, subject to the
• It is personal: Public office being requirements of a valid delegation of
personal, the death of a public officer legislative powers.
terminates his right to occupy the
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The delegation is limited by the Constitution 4. WHO ARE PUBLIC OFFICERS


and the relevant statute. Hence, the
president cannot deprive courts of jurisdiction
by requiring administrative appeals prior to A. WHO ARE PUBLIC OFFICERS
court action when the statute does not Generally, one who holds a public office. [DE
provide for that limitation. This is because the LEON] “Public official” is ordinarily
power to apportion jurisdiction is exlusively synonymous with “public officer.” [Id.]
within the powers of Congress. [See UST v. “Public officer” has also been defined by
Board of Tax Appeals, G.R. No. 5701 (1953)] statutes. Note that the statutory definitions
below are not all-encompassing, and apply
primarily with respect to the respective
Methods of Organizing Public Offices statutes themselves (e.g. the definition of
“public officers” in the Revised Penal Code is
Method Composition Efficiency most relevant with regard to the provisions of
Single-head There is one Swifter the Revised Penal Code).
head assisted decision and i. Under R.A. No. 3019
by action but
subordinates. decisions (b) "Public officer" includes elective and
might be appointive officials and employees,
hastily made permanent or temporary, whether in the
classified or unclassified or exempt service
Board System There is a Mature receiving compensation, even nominal, from
collegial body studies and the government as defined in the preceding
for deliberations subparagraph. [Sec. 2(b), R.A. No. 3019 (Anti-
formulating but may be Graft and Corrupt Practices Act]
polices and slow in
implementing responding • "Government" includes “the national
programs. to issues and government, the local governments,
problems the government-owned and
government-controlled corporations,
and all other instrumentalities or
B. MODIFICATION AND ABOLITION OF agencies of the Republic of the
PUBLIC OFFICE Philippines and their branches.” [Sec.
General Rule: The power to create an office 2(a), R.A. No. 3019]
includes the power to modify or abolish it. ii. Under the Revised Penal Code
(Hence, the power to modify or abolish an
office is also primarily legislative.) Who are public officers. - For the purpose of
applying the provisions of this and the
Exception: Where the Constitution prohibits preceding titles of this book, any person who,
such modification/abolition. by direct provision of the law, popular
Abolishing an office also abolishes election or appointment by competent
unexpired term: The legislature’s abolition of authority, shall take part in the performance
an office (e.g. a court) also abolishes the of public functions in the Government of the
unexpired term. The legislative power to Philippine Islands, of shall perform in said
create a court carries with it the power to Government or in any of its branches public
abolish it. [Ocampo v. Sec. of Justice, G.R. No. duties as an employee, agent or subordinate
7910 (1955)] official, of any rank or class, shall be deemed
to be a public officer. [Art. 203, Revised Penal
Code]
• The definition includes temporary
employees for as long as they
perform public functions. Hence, a
laborer temporarily in charge of
issuing summons and subpoenas for
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traffic violations in a judge's sala may owned by the Government, its funds were
be convicted for bribery under the private funds because the Court found
Revised Penal Code. [People v. that it was not imbued with
Maniego, G.R. No. 2971, Apr. 20, 1951] governmental powers. [Id.]

iii. Under the Admin. Code of 1987 5. CLASSIFICATION OF PUBLIC


(14) “Officer” as distinguished from “clerk” or OFFICES AND PUBLIC OFFICERS
“employee”, refers to a person whose duties,
not being of a clerical or manual nature, Constitutional
involves the exercise of discretion in the Creation
performance of the functions of the Statutory
government. When used with reference to a National
person having authority to do a particular act Public Body Served
or perform a particular function in the Local
exercise of governmental power, “officer” Legislative
includes any government employee, agent or Department of
body having authority to do the act or government to which Executive
exercise that function. their functions pertain
Judicial
(15) “Employee” when used with reference to
a person in the public service, includes any Civil
person in the service of the government or Nature of functions
Military
any of its agencies, divisions, subdivisions or
instrumentalities. Exercise of Judgment or Discretionary
[Sec. 2, Introductory Provisions, Admin. Discretion Ministerial
Code] De Jure
Legality of Title to office
De Facto
B. WHO ARE NOT PUBLIC OFFICERS
Generally, persons holding offices or Lucrative
employment which are not public offices, i.e. Compensation
Honorary
those missing one of the essential elements,
supra.
Examples: The following are not public
officers:
(1) A concession forest guard, even when
appointed by a government agency, if
such appointment was in compliance
with a requirement imposed by an
administrative regulation on the lumber
company who was also mandated to pay
the guard’s salaries. [Martha Lumber Mill
v. Lagradante, G.R. No. 7599 (1956)]
Rationale: There was no public office in
this case. The Court further noted that
the appointment by the government was
only done to ensure the faithful
performance of the guard’s duties. [Id.]
(2) A company cashier of a private
corporation owned by the government.
[See Tanchoco v. GSIS (1962)] Rationale:
Even if the Manila Railroad Company was

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B. Modes of Acquiring C. Modes and Kinds of


Title to Public Office Appointment
a. Election 1. NATURE AND CHARACTERISTICS OF
b. Appointment APPOINTMENTS
c. Others:
A. APPOINTMENT IS A DISCRETIONARY
i. Succession by operation of law POWER.
ii. Direct provision of law “Appointment is an essentially discretionary
power and must be performed by the officer
in which it is vested according to his best
Generally, the two modes of acquiring title to lights, the only condition being that the
public office are (1) election and (2) appointee should possess the qualifications
appointment. [DE LEON] required by law. If he does, then the
appointment cannot be faulted on the
• Election: The choice or selection of ground that there are others better qualified
candidates to public office by popular who should have been preferred.” [Luego v.
vote through the use of the ballot. CSC, G.R. No. 69137 (1986)]
[Rulloda v. COMELEC, G.R. No. 154198
(2003)] Administrators of public officers, primarily
the department heads should be entrusted
• Appointment: The act of designation with plenary, or at least sufficient, discretion.
by the officer, board, or body to whom Their position most favorably determines who
that power has been delegated of the can best fulfill the functions of a vacated
individual who is to exercise the office. There should always be full recognition
powers and functions of a given office. of the wide scope of a discretionary authority,
[See DE LEON] unless the law speaks in the most mandatory
and peremptory tone, considering all the
• However, a person may also acquire circumstances. [Reyes v. Abeleda, G.R. No.
title to public office through two other 25491 (1968)]
means, namely
Scope of discretion: The discretion of the
(1) succession by operation of law appointing authority is not only in the choice
(when the office to which one of the person who is to be appointed but also
succeeds is legally vacated) or in the nature and characterof the
(2) by direct provision of law (such as appointment intended (i.e., whether the
when the office is validly held in appointment is permanent or temporary).
an ex-officio capacity by a public Generally, a Political Question: Appointment
officer). is generally a political question involving
considerations of wisdom which only the
appointing authority can decide.
Exception: Appointments requiring
confirmation by the Commission on
Appointments. In such cases, the
Commission on Appointments may review the
wisdom of the appointment and has the
power to refuse to concur with it even if the
President's choice possessed all the
qualifications prescribed by law. [Luego v.
CSC (1986)]

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Power of CSC to recall appointments does recommendation by the Governor of a


not include control of discretion: The CSC Pronvince to the Secretary of the Department
authority to recall an appointment which has of Budget and Management in the
been initially approved when it is shown that appointment of a Provincial Budget Officer. In
the same was issued in disregard of pertinent the said example, the recommendation by
laws, rules and regulations. However, it does the Governor is a condition sine qua non for
not have the power to recall an appointment the validity of the appointment. [See San Juan
on the ground that another person is better v. CSC, G.R. No. 92299 (1991)]
qualified. [See Luego v. CSC (1986)]
Courts will act with restraint: Generally, as
The promotion of the “next-in-rank” is not regards the power of appointment, courts will
mandatory: While there is a preference for act with restraint. Hence, mandamus will not
the next-in-rank in the Civil Service Law [see lie to require the appointment of a particular
Sec. 21(1)-(6), Bk. V, Admin. Code (Civil Service applicant or nominee.
Law)], it does not impose a “rigid or
Exceptions:
mechanistic formula” that requires the
appointing power to select the more senior (1) When there is grave abuse of
officer. Unless the law speaks in the most discretion, prohibition or mandamus
mandatory and peremptory tone, there will lie. [See Aytona v. Castillo, G.R. No.
should be full recognition of the wide scope 19313 (1962), on the midnight
of the discretionary authority to appoint. appointments of President Garcia.]
[Reyes v. Abeleda, G.R. No. 25491 (1968)]
(2) Where the palpable excess of
There is no requirement that “must be filled authority or abuse of discretion in
by promotion, transfer, reinstatement, refusing to issue promotional
reemployment or certification, in that order. appointment would lead to manifest
That would be to construe the provision not injustice, mandamus will lie to
merely as a legislative prescription of compel the appointing authority to
qualifications but as a legislative issue said appointments. [Pineda v.
appointment, repugnant to the Constitution. Claudio, G.R. No. 29661 (1967)]
What [the law] does purport to say is that as
far as practicable the person next in rank
should be promoted, otherwise the vacancy B. APPOINTMENT IS GENERALLY AN
may be filled by transfer, reinstatement, EXECUTIVE FUNCTION.
reemployment or certification, as the General Rule: “Appointment to office is
appointing power sees fit, provided the intrinsically an executive act involving the
appointee is certified to be qualified and exercise of discretion.” [Concepcion v. Paredes,
eligible.” [Pineda v. Claudio, G.R. No. 29661 G.R. 17539 (1921)]
(1967)]
Exceptions:
“Upon recommendation” is merely advisory:
In cases of provincial and city prosecutors and (1) Congress may appoint its own officials
their assistants, they shall be appointed by and staff. [See Spinger v. Government
the President “upon the recommendation of (1928)]
the Secretary” [Sec. 10, P.D. No. 1275]. The (2) When the Constitution vests the powers
phrase “upon recommendation of the in another branch of the State (i.e.
Secretary of Justice” should be interpreted to Judiciary, Sec. 5(6), Art. VIII) or an
be a mere advice. It is persuasive in character, independent office (e.g. Constitutional
but is not binding or obligatory upon the Commissions, Sec. 4, Art. IX-A;
person to whom it is made. [Bermudez v. Ombudsman, Sec. 6, Art. XI; Commission
Torres, G.R. No. 131429 (1999)] on Human Rights, Sec. 18(10), Art. XIII).
N.B. The Secretary of Justice is under the N.B. Mechem believes that when
control of the President. The rule is different appointment is exercised by Congress, the
with respect to recommendations made by courts, and similar non-executive bodies, the
officers over whom the appointing power exercise is still an executive function.
exercises no power of control, e.g. as the
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The power to appoint may be granted by law of the President, upon which no limitations
to officials exercising executive functions. may be imposed by Congress, except those
This is expressly sanctioned by the provision resulting [1] from the need of securing the
which holds that “Congress may, by law, vest concurrence of the Commission on
the appointment of other officers lower in Appointments and [2] from the exercise of
rank […] in the heads of departments, the limited legislative power to prescribe the
agencies, commissions, or boards.” [Sec. 16, qualifications to a given appointive office.”
Art. VII, Constitution] [Manalang v. Quitoriano, G.R. No. 6898
(1954)]
• Congress cannot vest such power in
officials not mentioned in the above Legislative appointments: Legislative
provision, such as heads of bureaus. appointments are repugnant to the
[DE LEON] Constitution. [Pineda v. Claudio, G.R. No.
29661 (1967)]
• The power of local chief executives to
appoint local government employees • Effectively legislative appointments also
under the Local Government Code is prohibited: “When Congress clothes the
separately sanctioned in the power of President with the power to appoint an
Congress to “provide for the officer, it (Congress) cannot at the same
qualifications, election, appointment time limit the choice of the President to
and removal, term, salaries, powers only one candidate. […] when the
and functions and duties of local qualifications prescribed by Congress can
officials, and all other matters only be met by one individual, such
relating to the organization and enactment effectively eliminates the
operation of the local units.” [Sec. 3, discretion of the appointing power to
Art. X, Constitution] choose and constitutes an irregular
restriction on the power of appointment.”
Must be unhindered by Congress: The [Flores v. Drilon (1993)] In this case, the
President’s power to appoint under the law assailed provided that “for the first
Constitution should necessarily have a year of its operations from the effectivity
reasonable measure of freedom, latitude, or of this Act, the mayor of the City of
discretion in choosing appointees. Olongapo shall be appointed [by the
[Cuyegkeng v. Cruz, G.R. No. 16263 (1960)] President] as the chairman and chief
“Congress can not either appoint the executive officer of the Subic Authority.”
Commissioner of the Service, or impose upon
• N.B. This is not to be confused with
the President the duty to appoint any
the power of Congress to appoint its
particular person to said office. The
own staff and officials, supra.
appointing power is the exclusive prerogative

C. APPOINTMENT V. DESIGNATION
Designation Appointment
Definition Imposition of additional duties upon existing Appointing authority selects an individual
office. who will occupy a certain public office.
Extent of Limited Comprehensive
Powers
Security of No. The designation may be revoked at will. Yes
Tenure [Binamira v. Garucho, G.R. No. 92008 (1990)]
Abandonment No. While assuming the designated functions Yes. A public officer who later accepts even a
of “Prior” Office or if the designation is revoked, the public temporary appointment terminates his
officer may perform the functions of the relationship with his former office.
“prior” office. [Romualdez III v. CSC (1991)]

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2. CLASSIFICATION OF APPOINTMENTS

A. PERMANENT AND TEMPORARY


Permanent Temporary

Includes (if (1) Regular appointments (i.e. while Acting appointments.


appointment Congress is in session); and
is by the (2) Ad interim appointments.
President)

Eligibility Permanent appointees must be (1) eligible Generally, required.


Requirements and (2) qualified. However, “in the absence of appropriate
eligibles, [a person otherwise ineligible] may
“A permanent appointment can issue only be appointed to it merely in a temporary
to a person who possesses all the capacity.” [CSC v. Darangina (2007)]
requirements for the position to which he is
being appointed, including the appropriate
eligibility.” [CSC v. Darangina, G.R. No.
167472 (2007)]
Subject to Yes, if confirmation by the CA is required for No, even when confirmation by the CA is
confirmation the office. required for the office. (e.g. Acting
by the Secretaries of Executive Departments)
Commission
on
Appointments

Constitutional “No officer or employee of the civil service “Temporary employees of the Government
protection shall be removed or suspended except for shall be given such protection as may be
cause provided by law.” [Sec. 2(3), Art. IX-B] provided by law.” [Sec. 2(6), Art. IX-B]
Security of Yes. No. [Sevilla v. CA, G.R. No. 88498 (1992)]
Tenure

Duration Until lawful termination. (1) Until a permanent appointment is issued


to the same or different person; or
(2) Until the appointee removed by the
appointing power

Exception: Fixed-Period Temporary


Appointments, which may be revoked prior
to the end of the term only for valid cause

Temporary appointment: “one made in an same pending the selection of a


acting capacity, the essence of which lies in permanent appointee.” [CSC v. Darangina
its temporary character and its terminability (2007)]
at pleasure by the appointing power.” [CSC v.
Darangina, G.R. No. 167472 (2007)] • Is eligibility required for temporary
appointments?
• Rationale for temporary appointments:
o Generally, a temporary appointee
“Such a temporary appointment is not
must be eligible.
made for the benefit of the appointee.
Rather, an acting or temporary o Exception: “in the absence of
appointment seeks to prevent a hiatus in appropriate eligibles, [a person
the discharge of official functions by otherwise ineligible] may be
authorizing a person to discharge the appointed to it merely in a
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temporary capacity.” [CSC v. B. PRESIDENTIAL APPOINTMENTS


Darangina (2007)] Par. 1, Sec. 16, Art. VII, Constitution. The
President shall nominate and, with the
o Hence, the absolutist dictum in
consent of the Commission on Appointments,
Ignacio v. Banate [G.R. No. 74720
appoint the heads of the executive
(1987)], which states that an “an
departments, ambassadors, other public
unqualified person cannot be
ministers and consuls, or officers of the
appointed a member even in an
armed forces from the rank of colonel or
acting capacity,” must be read in
naval captain, and other officers whose
light of the facts of that case.
appointments are vested in him in this
There, the vacant position was
Constitution. He shall also appoint all other
member of the Sangguniang
officers of the Government whose
Panglunsod representing the
appointments are not otherwise provided for
barangays, which the law
by law, and those whom he may be
required to be the president of
authorized by law to appoint. The Congress
the city association of barangay
councils; the petitioner was such may, by law, vest the appointment of other
officers lower in rank in the President alone,
president, and the respondent
in the courts, or in the heads of departments,
was not even a barangay captain.
agencies, commissions, or boards.
• An acting appointee has no entitlement
to the office. Hence, he has no personality
to bring a quo warranto action against Four Groups of Officers the President is
the permanent appointee to the position. Authorized to Appoint [Sarmiento v. Mison,
[Sevilla v. CA, G.R. No. 88498 (1992)] G.R. No. 79974 (1987)]
• When temporary appointments not (1) Specifically enumerated under Sec. 16,
allowed: In no case shall any Member [or Art. VII of the Constitution, i.e.:
Chair] of the (a) Civil Service Commission, (a) Heads of the executive
(b) Commission on Elections, or (c) departments;
Commission on Audit be appointed or
designated in a temporary or acting (b) Ambassadors;
capacity. [Sec. 1(2), Art. IX-B; Sec. 1(2), Art. (c) Other public ministers and
IX-C; Sec. 1(2), Art. IX-D, Constitution] consuls;
(d) Officers of the armed forces from
the rank of colonel or nava
captain;
(e) Other officers whose
appointments are vested in him
by the Constitution;
(2) All other officers of the Government
whose appointments are not
otherwise provided for by law;
(3) Officers whom the President may be
authorized by law to appoint;
(4) Officers lower in rank whose
appointments the Congress may by
law vest in the President alone.

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i. Appointments Requiring and Not Requiring Consent of the Commission on Appointments


(“Confirmation”)

Requiring CA Confirmation Not Requiring CA Confirmation

Appointments (a) Heads of the executive departments; All other presidential appointments.
covered
(b) Ambassadors; Requirements explicitly exempted from the
confirmation requirement under the
(c) Other public ministers and consuls;
Constitution:
(d) Officers of the armed forces from the
(1) Vice-President as a member of the
rank of colonel or nava captain;
cabinet [Sec. 3, Art. VII];
(e) Other officers whose appointments are
(2) Members of the Supreme Court and
vested in him by the Constitution (unless the
judges of lower courts [Sec. 9, Art. VIII];
Constitution provides that “such
appointments require no confirmation”). (3) The Ombudsman and his deputies [Sec.
9, Art. XI].
[Par. 1, Sec. 16, Art. VII, Constitution]

Generally, officers whose appointments are ii. Regular and Ad Interim [Matibag v.
vested in him by the Constitution require Benipayo, G.R. No. 149036 (2002)]
confirmation by the Commission on
The President shall have the power to make
Appointments (CA) (e.g. chairmen and
appointments during the recess of the
members of the Constitutional Commissions,
Congress, whether voluntary or compulsory,
regular members of the Judicial and Bar
but such appointments shall be effective only
Council).
until disapproved by the Commission on
• As a general exception, appointments Appointments or until the next adjournment
subject to nomination by the Judicial and of the Congress. [Par. 2, Sec. 16, Art. VII,
Bar Council (i.e. members of the judiciary, Constitution]
and the Ombudsman and his deputies)
“require no confirmation.” [Sec. 9, Art. • The classification of whether an
appointment is regular or ad interim
VIII; Sec. 9, Art. XI, Constitution]
is relevant for the purposes of the
• The list of appointments requiring requirement of CA confirmation.
confirmation is exclusive. Congress
cannot, by law, require confirmation by
the CA for a public office created by
statute. This would be unconstitutional
as it expands the powers of the CA.
[Calderon v. Carale, G.R. No. 91636 (1992)]
• The President does not have the
prerogative to voluntarily submit an
appointment for confirmation by the CA.
[Bautista v. Salonga, G.R. No. 86439
(1989)]

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Regular Ad Interim

Definition and Appointments made while Congress is in Appointments made “during the recess of
Constitutional session. the Congress, whether voluntary or
Basis compulsory.” [Id.]

Nature of the Permanent Permanent


appointment

Steps in the (1) President nominates. (1) President nominates.


Appointment
(2) CA confirms. (2) Commission is issued.
Process
(3) Commission [i.e. document serving as (3) Appointee accepts, qualifies for office
the written evidence of the appointment] is [i.e. takes the oath], and assumes his
issued. duties.
(4) Appointee accepts, qualifies for office (4) CA confirms.
[i.e. takes the oath], and assumes his
duties.

When the Upon confirmation by the CA. Immediately after appointment, subject to
appointee (a) disapproval by the CA or (b) “bypass” by
may take oath the CA, infra.
and assume
office

• Ad interim appointments to the appointment was not acted upon the


Constitutional Commissions are merits by the CA, may be appointed
permanent and irrevocable again by the President, because
appointments. Such do not violate failure by the CA to confirm an ad
the Constitutional prohibition against interim appointment is not
acting appointments to these disapproval. [See Matibag v. Benipayo
commissions. [See Matibag v. (2002)]
Benipayo (2002)] o Renewal of by-passed
• Termination of ad interim appointment: “A by-passed
appointments: Three cases: appointment is one that has
not been finally acted upon
(1) Disapproval by the CA; on the merits by the
(2) By-Pass by the CA: When the CA Commission on
does not act on the ad interim Appointments at the close of
appointment prior to the next the session of Congress.
adjournment of Congress; There is no final decision by
[Matibag v. Benipayo (2002)] or the Commission on
Appointments to give or
(3) Revocation of the appointment by withhold its consent to the
the President, unless prohibited appointment as required by
by the Constitution [as in the case the Constitution. Absent such
of the chairman and members of decision, the President is free
the Constitutional Commission]. to renew the ad interim
• Disapproval v. Bypass: An ad interim appointment of a by-passed
appointee disapproved by the COA appointee.” [Matibag v.
cannot be reappointed. But a by- Benipayo (2002)]
passed appointee, or one whose

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• Commission: A document serving as Limited application to Presidential


the written evidence of the appointments: The constitutional prohibition
appointment. It is the warrant for the on midnight appointments only applies to the
exercise of the powers and duties of President. [De Rama v. CA, G.R. No. 131136
the office to which the officer is (2001)]
commissioned. [DE LEON]
• Note, however, that the Civil Service
Commission may issue rules and
regulations prohibiting local chief
iii. Special Rules and Doctrines on
executives from making
Presidential Appointments
appointments during the last days of
their tenure. Appointments of local
chief executives must conform to
a. Prohibition on Midnight Appointments
these civil service rules and
Sec. 15, Art. VII, Const. Two months regulations in order to be valid.
immediately before the next presidential [Provincial Gov’t of Aurora v. Marco,
elections and up to the end of his term, a G.R. No. 202331 (2015)]
President or Acting President shall not make
b. The grant to the President of the power to
appointments, except temporary
appoint OICs in ARMM does not violate the
appointments to executive positions when
Constitution: The appointing power is
continued vacancies therein will prejudice
embodied in Sec. 16, Art VII of the Constitution,
public service or endanger public safety.
which pertinently states that the President
shall appoint all other officers of the
government whom the President may be
Midnight appointments ban period: General
authorized by law to appoint. Since the
rule: Two months immediately before the
President’s authority to appoint OICs
next presidential elections up to end of the
emanates from RA No. 10153, it falls under
term of the President
this group of officials that the President can
Exception: All elements must concur: appoint. Thus, the assailed law rests on clear
constitutional basis. [Kida v. Senate, G.R. No.
(1) Temporary appointments;
197271 (2011)]
(2) To executive positions; and
(3) When continued vacancies will (a)
prejudice public service or (b) endanger 3. RULES ON ACCEPTANCE AND
public safety REVOCATION
Policy: The outgoing President is prevented
from continuing to rule the country indirectly A. FOUR ELEMENTS OF A VALID,
after the end of his term. [Velicaria-Garafil v. EFFECTIVE, AND COMPLETED
Office of the President, G.R. No. 203372 APPOINTMENT
(2015)] (1) Authority to appoint and evidence of the
exercise of the authority;
Inapplicability to the Judiciary: The midnight
appointments ban in the constitution does (2) Transmittal of the appointment paper
not apply to the Judiciary. The applicable and evidence of the transmittal;
provisions on the periods to fill up vacancies (3) A vacant position at the time of
in the judiciary in Art. VIII will prevail over the appointment; and
midnight appointments prohibition in Art. VII.
[See De Castro v. JBC, G.R. No. 191002 (2010)] (4) Receipt of the appointment paper and
acceptance of the appointment by the
• De Castro expressly overturned the appointee who possesses all the
long-standing rule in In re Valenzuela qualifications and none of the
(1998) which applied the midnight disqualifications.
appointments ban to judicial
positions. “The [above] elements should always concur
in the making of a valid (which should be
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understood as both complete and effective) B. RULE ON ACCEPTANCE


appointment […] The concurrence of all these General Rule: A person cannot be compelled
elements should always apply[.] These steps to accept a public office.
in the appointment process should always
Exceptions: When citizens are required,
concur and operate as a single process. There
under conditions provided by law, to render
is no valid appointment if the process lacks
personal military or civil service (see Sec. 4,
even one step.” [Velicaria-Garafil v. Office of
Art. II, Const.)
the President, G.R. No. 203372 (2015)]
• N.B. See Art. 234, Revised Penal Code:
• Appointment not final without
“The penalty of arresto mayor or a fine
transmittal: “It is not enough that the
not exceeding 1,000 pesos, or both,
President signs the appointment
shall be imposed upon any person
paper. There should be evidence that
who, having been elected by popular
the President intended the
election to a public office, shall refuse
appointment paper to be issued. It
without legal motive to be sworn in or
could happen that an appointment
to discharge the duties of said office.”
paper may be dated and signed by
This is not an exception to the
the President months before the
general rule, but it merely punishes
appointment ban, but never left his
the failure to accept the elective
locked drawer for the entirety of his
public office.
term. Release of the appointment
paper through the [Malacañang
Records Office (MRO)] is an
C. IRREVOCABILITY OF A VALID,
unequivocal act that signifies the
EFFECTIVE, AND COMPLETED
President’s intent of its issuance.”
APPOINTMENT
[Velicaria-Garafil v. Office of the
General Rule: An appointment, once made, is
President (2015)]
irrevocable and not subject to reconsideration.
• Hence, even if the appointment letter
• The appointee enjoys security of
was dated prior to the midnight
tenure and may only be removed (1)
appointments ban, supra, cut-off
for cause and (2) with due process.
date, for as long as the transmittal to
Note that while a completed
the MRO was after the cut-off date,
appointment cannot be revoked, the
the appointment is unconstitutional
for violating the midnight Exceptions:
appointments ban. [Id.] (a) The appointment is an absolute nullity.
• N.B. The appointments in Velicaria- [Mitra v. Subido, G.R. No. 21961 (1967)]
Garafil did not require CA • Hence, if the appointment was a
confirmation. It is submitted that the prohibited midnight appointment, it
rule there would also apply to can be revoked by the (next)
appointments requiring CA President en masse through
confirmations, subject to necessary executive order. [See, e.g. Velicaria-
modifications. Garafil, supra; Aytona v. Castillo,
supra]
(b) There is fraud on the part of the appointee.
[Id.]

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D. Eligibility and 2. POWER


QUALIFICATIONS
TO PRESCRIBE

Qualification
Requirements A. WHO MAY PRESCRIBE QUALIFICATIONS
(1) Constitution: When the qualifications are
prescribed by the Constitution, they are
1. DEFINITIONS generally exclusive, except where the
Constitution itself provides otherwise;
Eligibility: The state or quality of being Hence, Congress cannot pass a statute
legally fitted or qualified to be chosen that requires drug testing for candidates
Qualification: Endowment/act which a for the House and Senate, as the
person must do before he can occupy a public qualifications of members of Congress
office. May be understood in two senses: are provided in the Constitution [See
Social Justice Society v. Dangerous Drugs
(1) Endowment: refers to the qualities or Board, G.R. No. 157870 (2008)]
attributes which make an individual
eligible for public office. It must be (2) Congress: In the absence of constitutional
possessed at the time of appointment or inhibition, Congress has the same right to
election and continuously for as long as provide disqualifications that it has to
the official relationship continues provide qualifications for office. [DE LEON]

(2) Act: refers to the act of entering into the


performance of the functions of the office. B. RESTRICTIONS ON THE POWER OF
N.B. Failure to perform an act required by law CONGRESS TO PRESCRIBE
could affect the officer’s title to the given QUALIFICATIONS:
office. (1) Congress cannot exceed its constitutional
powers;
• e.g. The office of any elected official
(2) Congress cannot impose conditions of
who fails or refuses to take his oath of
eligibility inconsistent with constitutional
office within six months from his
provisions;
proclamation shall be considered
vacant unless said failure is for cause (3) The qualification must be germane to the
or causes beyond his control. [Sec. 11, position ("reasonable relation" rule);
Omnibus Election Code]
(4) Where the Constitution establishes
An oath of office is a qualifying requirement specific eligibility requirements for a
for a public office. Only when the public particular constitutional office, the
officer has satisfied this prerequisite can his constitutional criteria are exclusive, and
right to enter into the position be considered Congress cannot add to them except if
plenary and complete. Until then, he has the Constitution expressly or impliedly
none at all, and for as long as he has not gives the power to set qualifications.
qualified, the holdover officer is the rightful
(5) Congress cannot prescribe qualifications
occupant. [Lecaroz v. Sandiganbayan, G.R. No.
so detailed as to practically amount to
130872 (1999)]
making a legislative appointment: it is
Once proclaimed and duly sworn in office, a unconstitutional and therefore void for
public officer is entitled to assume office and being a usurpation of executive power;
to exercise the functions thereof. The
Examples of Prohibited Qualifications in
pendency of an election protest is not
Jurisprudence:
sufficient basis to enjoin him from assuming
office or from discharging his functions. • A proviso which limits the choices of
[Mendoza v. Laxina (2003)] the appointing authority to only one
eligible [Flores v. Drilon (1993)];

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• Designating an unqualified person. elected or appointed to office, but of


The People's Court Act, which holding office, and that, therefore, if
provided that the President could qualified at the time of
designate Judges of First Instance, commencement of the term or
Judges-at-large of First Instance or induction into office, disqualification
Cadastral Judges to sit as substitute of the candidate or appointee at the
Justices of the Supreme Court in time of election or appointment is
treason cases without them immaterial;
necessarily having to possess the (b) Qualification / eligibility during
required constitutional qualifications election or appointment: Conditions
of a regular Supreme Court Justice; of eligibility must exist at the time of
[Vargas v. Rilloraza (1948)] the election or appointment, and that
• Automatic transfer to a new office. A their existence only at the time of the
legislative enactment abolishing a commencement of the term of office
particular office and providing for the or induction of the candidate or
automatic transfer of the incumbent appointee into office is not sufficient
officer to a new office created; to qualify him to office.
[Manalang v. Quitorano (1954)] Reconciliation of the two views: If the
• Requiring inclusion in a list. A provision refers to “holding of office,” rather
provision that impliedly prescribes than to eligibility to office, in defining the
inclusion in a list submitted by the qualifications, the courts are inclined to hold
Executive Council of the Phil. Medical that the qualifications are to be determined
Association as one of the at the time of the commencement of the term.
qualifications for appointment; and [DE LEON]
which confines the selection of the • This is consistent with the rule on
members of the Board of Medical liberal interpretation of eligibility
Examiners to the 12 persons included requirements for public office.
in the list. [Cuyegkeng v. Cruz, G.R. No.
16263 (1960)]
Qualifications are of a continuing nature:
Qualification is of a continuing nature, and
3. TIME OF POSSESSION OF must exist throughout the holding of the
QUALIFICATIONS public office. Once the qualifications are lost,
the public officer forfeits the office.
(1) If law specifies: At the time specified by
the Constitution or law; note examples in No estoppel in ineligibility. Knowledge of
Constitution: ineligibility of a candidate and failure to
question such ineligibility before or during
(a) Sec. 3, Art. VI: “No person shall be a the election is not a bar to questioning such
Senator unless he is […] on the day of eligibility after such ineligible candidate has
the election, is at least […]” won and been proclaimed. Estoppel will not
(b) Sec. 2, Art. VII: “No person may be apply in such a case. [Castaneda v. Yap
elected President unless he is […] at (1952)]
least forty years of age on the day of Citizenship requirement should be
the election […]” possessed on start of term. The Local
(2) If law does not specify: If time is Government Code does not specify any
unspecified, there are two views: particular date or time when the candidate
must possess the required citizenship, unlike
(a) Qualification during commencement for residence and age. The requirement is to
of term or induction into office: The ensure that no alien shall govern our people
word “eligible” as used in and country or a unit of territory thereof. An
constitutions and statutes, has official begins to govern or discharge his
reference to the capacity not of being functions only upon proclamation and on
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start of his term. This liberal interpretation 4. QUALIFICATIONS PRESCRIBED BY


gives spirit, life and meaning to our law on THE CONSTITUTION
qualifications consistent with its purpose.
[Frivaldo v. COMELEC (1996)]
For President and Vice-President [Sec. 2-3 Art.
• Note: Constitutional offices require VII]
natural-born citizenship, hence this is
a non-issue for them. (1) Natural-born citizen

Presumption of eligibility: Doubts as to the (2) Registered voter


eligibility of a candidate are presumed in (3) Able to read and write
favor of one who has been elected or
(4) 40 years old on day of election
appointed to public office.
(5) Resident of the Philippines for at
• “The right to public office should be
least 10 years immediately preceding
strictly construed against ineligibility.
election day
The right of a citizen to hold office is
the general rule, ineligibility the For Senator [Sec. 3, Art. VI]
exception, and therefore, a citizen (1) Natural-born citizen
may not be deprived of this right
without proof of some disqualification (2) 35 years old on election day
specifically declared by law.” [DE (3) Able to read and write
LEON]
(4) Registered voter
(5) Resident of the Philippines for at
least 2 years immediately preceding
election day
For Members of the House of
Representatives [Sec. 6, Art. VI]
(1) Natural-born citizen
(2) 25 years old on election day
(3) Able to read and write
(4) Registered voter in district in which
he shall be elected
(5) Resident thereof for not less than one
year immediately preceding election
day
• N.B. Residency and registration in the
district (i.e. requirements 4 and 5) are
not required for partylist
representatives.
Members of the Supreme Court and lower
collegiate courts [Sec. 7(1), Art. VIII]
(1) Natural born citizen
(2) At least 40 years old
(3) 15 years or more as a judge or
engaged in law practice
(4) Of proven Competence, Integrity,
Probity and Independence

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Members of the Constitutional Commissions


CSC COMELEC COA
Citizenship Natural-born citizen
Age 35 years old at the time of appointment
Disqualifications Not a candidate for any elective position in the election immediately preceding
appointment
Competence With proven capacity for College degree holder (a) CPA with at least 10
public administra-tion years of auditing
experience; OR
(b) Member of the Bar
engaged in practice of law
for at least 10 years
Composition None Chair-man and majority At no time shall all
rules should be mem-bers of the Members of the Com-
bar who have been mission belong to the
engaged in the practice of same profession.
law for at least 10 years.
Legal Basis [Sec. 1(1), Art. IX-B] [Sec. 1(1), Art. IX-C] [Sec. 1(1), Art. IX-D]

Notes:
• “Practice of law” means any activity, 5. PARTICULAR QUALIFICATIONS:
in or out of court, which requires the
application of law, legal procedure,
A. RELIGIOUS TEST OR QUALIFICATION IS
knowledge, training and experience.
NOT REQUIRED
Generally, to practice law is to give
No religious test shall be required for the
notice or render any kind of service
exercise of civil or political rights. [Sec. 5, Art.
which requires the use in any degree
III, Const.]
of legal knowledge or skill. [Cayetano
v. Monsod (1991)]
• “Residency” in election law, refers to B. QUALIFICATION STANDARDS AND
domicile, i.e. the place where a party REQUIREMENTS UNDER THE CIVIL
actually or constructively has his SERVICE LAW
permanent home, where he intends Qualification standards enumerate the
to return. To successfully effect a minimum requirements for a class of
change of domicile, the candidate positions in terms of education, training and
must prove an actual removal or an experience, civil service eligibility, physical
actual change of domicile. [Aquino v. fitness, and other qualities required for
COMELEC] successful performance. [Sec. 22, Book V,
• There is a presumption in favor of Admin. Code
domicile of origin. Domicile requires The Departments and Agencies are
the twin elements of actual habitual responsible for continuously establishing,
residence and animus manendi administering and maintaining the
(intent to permanently remain). qualification standards as an incentive to
Domicile of origin is not easily lost; it career advancement. [Sec. 7, Rule IV,
is deemed to continue absent a clear Omnibus Rules]
and positive proof of a successful
change of domicile. [Romualdez- Such establishment, administration, and
Marcos v. COMELEC (1995)] maintenance shall be assisted and approved
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by the CSC and shall be in consultation with


the Wage and Position Classification Office
E. ALIENS ARE NOT ELIGIBLE FOR PUBLIC
[Id.]
OFFICE
It shall be established for all positions in the
The purpose of the citizenship requirement is
1st and 2nd levels [Sec. 1, Rule IV, Omnibus
to ensure that no alien, i.e., no person owing
Rules]
allegiance to another nation, shall govern our
people and country or a unit of territory
thereof. [Frivaldo v. COMELEC (1996)]
C. POLITICAL QUALIFICATIONS FOR
OFFICE
Political qualifications refer to membership F. EFFECT OF PARDON UPON THE
in political parties, including those registered DISQUALIFICATION TO HOLD PUBLIC
in the party-list system. OFFICE
General Rule: Political qualifications are not Traditional Rule:
required for public office.
General Rule: Pardon will not restore the
Exceptions: right to hold public office. (Art. 36, Revised
Penal Code)
(1) Membership in the electoral tribunals of
either the House of Representatives or Exception: When the pardon’s terms
Senate, which requires proportional expressly restores such (Art. 36, RPC);
representation; [Art. VI, Sec. 17, Const.]
(2) Party-list representation;
Rule under Risos-Vidal v. Estrada (2015):
(3) Commission on Appointments, which
Risos-Vidal v. Estrada has raised questions
requires proportional representation; [Art.
about the organization of the above
VI, Sec. 18, Const.]
traditional rule, particularly as to whether the
(4) Vacancies in local Sanggunians, except terms of the pardon must expressly restore
the Sangguniang Barangay, which political rights. [Risos-Vidal v. COMELEC, G.R.
requires that the appointee come from No. 206666, January 21, 2015]
the same political party as that of the
The Court broadly held there that the
sanggunian member who caused the
“pardoning power of the President cannot be
vacancy [Sec. 45(b), Local Government
limited by legislative action,” and added that
Code]
“Articles 36 and 41 of the Revised Penal Code
cannot, in any way, serve to abridge or
diminish the exclusive power and prerogative
D. NO PROPERTY QUALIFICATIONS
of the President to pardon persons convicted
Since sovereignty resides in the people, it is of violating penal statutes.”
necessarily implied that the right to vote and
Under Risos-Vidal, if the wording of the
to be voted should not be dependent upon a
pardon is “complete, unambiguous, and
candidate’s wealth. Poor people should also
unqualified,” it includes the restoration of
be allowed to be elected to public office
civil and political rights because it is
because social justice presupposes equal
“unfettered by Articles 36 and 41 of the
opportunity for both rich and poor. [Maguera
Revised Penal Code.” [Id.]
v. Borra (1965); Aurea v. COMELEC (1965)]
The requirement that a candidate post a
bond worth a year’s salary is unconstitutional
for effectively imposing a property
qualification. nN person shall, by reason of
poverty, should be denied the chance to be
elected to public office. [Maguera v. Borra
(1965)]

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E. Disabilities and law and as required by the primary


functions of his office. [National
Inhibitions of Public Amnesty Commission v. COA (2004)]
(4) Impeachment: “Judgment in cases of
Officers impeachment shall not extend further
than removal from office and
disqualification to hold any office under
1. DISQUALIFICATIONS TO HOLD the Republic of the Philippines[.]” [Sec.
PUBLIC OFFICE 3(7), Art. XI]

Individuals who lack any of the qualifications


prescribed by the Constitution or by law for a On the holding of multiple offices by high-
public office are ineligible (i.e. disqualified ranking executive department officials
from holding such office). [Civil Liberties Union v. Executive Secretary,
Authority to prescribe disqualifications: The G.R. No. 83896 (1991)]
legislature has the right to prescribe Par. 1, Sec. 13, Art. VII, Const. The President,
disqualifications in the same manner that it Vice-President, the Members of the Cabinet,
can prescribe qualifications, provided the and their deputies or assistants shall not,
prescribed disqualifications do not violate the unless otherwise provided in this
Constitution. Constitution, hold any other office or
employment during their tenure.
2. CONSTITUTIONAL DISQUALIFI- The prohibition in Sec. 13, Art. VII is a special
CATIONS rule in relation to Sec. 7, Art. IX of the
Constitution. [Civil Liberties Union v. Executive
Secretary]
A. IN GENERAL
(1) Losing candidates cannot be appointed Covered officials:
to any governmental office within one (a) President
year after such election. [Sec. 6, Art. IX-B] (b) Vice-President
(2) Elective officials during their tenure are (c) Members of the Cabinet, and their
ineligible for appointment or designation deputies or assistants
in any capacity to any public office or N.B. “Members of the Cabinet” here are
position [Sec. 7(1), Art. IX-B] unless they synonymous with “heads of the
forfeit their seat executive departments,” i.e. the
prohibition does not apply to all officers
(3) Appointive officials shall not hold any of cabinet rank. [Civil Liberties Union v.
other governmental position, unless Executive Secretary, Resolution on the
otherwise allowed by law or his position’s Motion for Reconsideration;
primary functions [Sec. 7(2), Art. IX-B]
General Rule: The holding of any other office
• This is the general Constitutional or employment is prohibited for the covered
prohibition on holding multiple officials in Sec. 13, Art. VII.
offices. There is a specific provision
applicable to high-ranking officials of Exceptions:
the executive department as (1) Unless otherwise provided in the
explained in Civil Liberties Union v. Constitution (e.g. Secretary of Justice as
Executive Secretary. ex officio member of the JBC); or
• There is no violation of the (2) Ex Officio positions
constitutional provision when another
office is held by a public officer in an
ex officio capacity (where one can’t
receive compensation or other
honoraria anyway), as provided by
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Requirements for valid ex-officio holding:


(1) The holding of the ex-officio office is
provided by law;
(2) The holding is required by the primary
functions of their position; and
(3) The position is held without additional
compensation.

B. SPECIFIC CONSTITUTIONAL DISQUALIFICATIONS

Public Officer Disqualifications

The President, Vice President, Shall not hold any other office or employment during their tenure, unless
the Members of the Cabinet otherwise provided in the Constitution. (Art. VII, Sec. 13) [See Civil Liberties
and their deputies or assistants Union v. Executive Secretary, infra]

Senator or Member of the (1) [Incompatible Office] May not hold during his term any other office or
House of Representatives employment in the Government, or any subdivision, agency or
instrumentality thereof, including government -owned or -controlled
corporations or their subsidiaries;
(2) [Prohibited Office] Shall also not be appointed to any office when
such was created or its emoluments were increased during his term.
[Sec. 13, Art. VI]

Members of the Supreme Court Shall not be designated to any agency performing quasi-judicial or
and other courts established by administrative functions. [Sec. 12, Art. VIII]
law
Rationale: Anathema to judicial independence, since this would subject
members of the judiciary to the power of control of executive officials.

Members of the Constitutional (1) Shall not hold any other office or employment [during their tenure].
Commission [Art. IX-A, Sec. 2] [Art. XI, Sec. 8]
(2) Must not have been candidates for any elective position in the
elections immediately preceding their appointment. [Sec. 1, Art. IX-B;
Sec. 1, Art. IX-C; Sec. 1, Art. IX-D]

Ombudsman and his Deputies (1) Same disqualifications and prohibitions as members of the
Constitutional Commission, supra [Sec. 8, Art. XI]; plus
(2) Shall not be qualified to run for any office in the election immediately
succeeding their cessation from office. [Sec. 11, Art. XI]

The President’s spouse and Shall not be appointed during President’s tenure as:
relatives by consanguinity or
(1) Members of the Constitutional Commissions, or
affinity within the fourth civil
degree (2) Office of the Ombudsman, or
(3) (a) Secretaries, (b) undersecretaries, (c) chairmen or heads of bureaus
or offices, including government-owned-or -controlled corporations.
[Sec. 13, Art. VII]

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3. OTHER DISQUALIFICATIONS AND • Exception: As an exception, a public


PROHIBITIONS official or employee can engage in the
practice of his or her profession under
the following conditions: (1) the
A. IN GENERAL private practice is authorized by the
(1) Mental or physical incapacity; Constitution or by the law; and (2) the
practice will not conflict, or tend to
(2) Misconduct or crime: Persons convicted
conflict, with his or her official
of crimes involving moral turpitude are
functions.
usually disqualified from holding public
office;
(3) Removal or suspension from office: This C. PROHIBITION ON NEPOTIC
disqualification is not presumed, and APPOINTMENTS; EXCEPTIONS
cannot be imposed when not provided in General Rule on Nepotism: The Civil Service
the constitution or in statutes; Law prohibits all appointments in the
(4) Previous tenure of office: See prohibitions national and local governments or any
on reappointment for specific branch or instrumentality thereof made in
Constitutional offices; favor of the relative of:
(5) Consecutive terms limit: (a) appointing authority;
(a) Vice-President: 2 consecutive terms (b) recommending authority;
(b) Senator: 2 consecutive terms (c) chief of the bureau or office; or
(c) Representative: 3 consecutive terms (d) person exercising immediate
supervision over the appointee
(d) Elective local officials = 3 consecutive
terms [Sec. 8, Art. X, Constitution] In the last two cases, it is immaterial who the
appointing or recommending authority is. To
(6) Holding more than one office: to prevent
constitute a violation of the law, it suffices
offices of public trust from accumulating
that an appointment is extended or issued in
in a single person, and to prevent
favor of a relative of the chief of the bureau or
individuals from deriving, directly or
office, or the person exercising immediate
indirectly, any pecuniary benefit by virtue
supervision over the appointee [CSC v.
of their holding of dual positions.
Dacoycoy (1999)]
Relative: One who is related within the third
B. PROHIBITION ON HOLDING OFFICES IN degree of either consanguinity or of affinity.
THE PRIVATE SECTOR [Sec. 59, Civil Service Law]
Section 7 (b)(1)of RA 6713 considers unlawful Exceptions: The prohibition on nepotic
for public officials and employees during their appointments in the Civil Service Law does
incumbency to own, control, manage, or not apply if the appointee is:
accept employment as officer, employee, (a) person employed in a confidential
consultant, counsel, broker, agent, trustee capacity
or nominee in any private enterprise
regulated, supervised or licensed by their (b) teachers
office unless expressly allowed by law. (c) physicians
Private Practice of the Profession: Section 7 (d) member of the Armed Forces of the
of RA 6713 also generally provides for the Philippines
prohibited acts and transactions of public
officials and employees. Subsection (b)(2)
prohibits them from engaging in the private
practice of their profession during their
incumbency.

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D. DISQUALIFICATIONS IN THE LOCAL


GOVERNMENT CODE [Sec. 40, LGC] F. Powers and Duties of
The following persons are disqualified from Public Officers
running for any elective local position:
(a) Sentenced by final judgment for an
i. Classification of powers and duties
offense involving moral turpitude or for
an offense punishable by 1 year or more ii. Authority of public officers
of imprisonment, within 2 years after
serving sentence; iii. Source of powers and authority

(b) Removed from office as a result of an iv. Duties of public officers


administrative case;
(c) Convicted by final judgment for CLASSIFICATION OF POWERS AND
violating the oath of allegiance to the
Republic;
DUTIES [DE LEON]
(d) Dual citizenship;
1. AS TO NATURE
(e) Fugitive from justice in criminal or non-
political cases here or abroad;
A. MINISTERIAL
(f) Permanent residents in a foreign Official duty is ministerial when it is absolute,
country or those who have acquired the certain and imperative involving merely
right to reside abroad and continue to execution of a specific duty arising from fixed
avail of the same right after the
and designated facts. Where the officer or
effectivity of the Local Government
official body has no judicial power or
Code; or
discretion as to the interpretation of the law,
(g) Insane or feeble-minded. and the course to be pursued is fixed by law,
Dual citizenship is different from dual their acts are ministerial only.
allegiance. General Rule: Performance of duties of this
• Dual citizenship arises when, as a nature may be properly delegated to another.
result of the concurrent application of Exceptions:
the different laws of two or more states,
a person is simultaneously considered (1) Delegation is expressly prohibited by
a national by the said states. law; or
• Dual allegiance, on the other hand, (2) The law expressly that the act be
refers to the situation in which a person performed by the officer in person.
simultaneously owes, by some positive
act, loyalty to two or more states.
B. DISCRETIONARY
• While dual citizenship is involuntary, Acts which necessarily require the exercise of
dual allegiance is the result of an reason in the adaptation of means to an end,
individual’s volition. The Constitutional
and discretion in determining how or whether
Commission was not with dual
the act shall be done or the course pursued.
citizens per se but with naturalized
citizens who maintain their allegiance When the law commits to any officer the duty
to their countries of origin even after of looking into facts and acting upon them,
their naturalization. not in a way which it specifically directs, but
after a discretion in its nature, the function is
• Hence, the phrase “dual citizenship” in discretionary (e.g. quasi-judicial acts).
R.A. No. 7160 [Local Government Code],
sec. 40(d) must be understood as General Rule: A public officer cannot
referring to “dual allegiance.” [Mercado delegate his discretionary duties to another.
v. Manzano (1999)] Rationale: In cases where the execution of the
office requires exercise of judgment or
discretion by the officer, the presumption is
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that he was chosen to because he was AUTHORITY OF PUBLIC OFFICERS


deemed fit and competento exercise such Authority of public officers consists of those
judgment. which are:
Exception: The power to substitute another in (a) expressly conferred by law ;
his place has been expressly granted by law.
(b) incidental to the exercise of the
powers granted; and
2. AS TO THE OBLIGATION OF THE (c) necessarily implied
OFFICER TO PERFORM HIS POWERS Doctrine of necessary implication – all
AND DUTIES powers necessary for the effective exercise of
the express powers are deemed impliedly
A. MANDATORY granted (Nachura, 2015)
Powers conferred on public officers are Authority can be exercised only during the
generally construed as mandatory although term when the public officer is, by law,
the language may be permissive, where they invested with the rights and duties of the
are for the benefit of the public or individuals. office.

B. PERMISSIVE Source of Powers and Authority [DE LEON]


Statutory provisions define the time and
mode in which public officers will discharge Under our political system, the source of
their duties, and those which are obviously governmental authority is found in the People.
designed merely to secure order, uniformity, Directly or indirectly through their chosen
system and dispatch in public business are representatives, they create such offices and
generally deemed directory. agencies as they deem to be desirable for the
administration of the public functions and
If the act does not affect third persons and is declare in what manner and by what persons
not clearly beneficial to the public, permissive they shall be exercised. Their will finds its
words will not be construed as mandatory. expression in the Constitution and the laws.
The right to be a public officer, then, or to
3. AS TO THE RELATIONSHIP OF THE exercise the powers and authority of a public
OFFICER TO HIS SUBORDINATES office, must find its source in some provision
of the public law.

A. POWER OF CONTROL In the absence of a valid grant, public officials


It implies the power of an officer to manage, are devoid of power. A public official
direct or govern, including the power to alter exercises power, not rights. The Government
or modify or set aside what a subordinate had itself is merely an agency through which the
done in the performance of his duties and to will of the State is expressed and enforced. Its
substitute his judgment for that of the latter. officers therefore are likewise agents
entrusted with the responsibility of
discharging its functions. As such there is no
B. POWER OF SUPERVISION presumption that they are empowered to act.
Supervisory power is the power of mere There must be a delegation of such authority,
oversight over an inferior body which does not either express or implied. [Villegas v. Subido,
include any restraining authority over such 1969]
body. But once the power is expressly granted, it
A supervising officer merely sees to it that the will be broadly construed in line with the
rules are followed, but he himself does not doctrine of necessary implication.
lay down such rules, nor does he have the
discretion to modify or replace them.

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DUTIES OF PUBLIC OFFICERS offices, and must, at all times, act


(1) General (Constitutional) duties [NACHURA, promptly and expeditiously.
2015] (e) Make documents accessible to the
(a) To be accountable to the people; to public
serve them with utmost responsibility, All public documents mst be made
integrity, loyalty and efficiency; to act accesibe to, and readily available for
with patriotism an justice; and to lead inspection by, the public within
modest lives [Sec. 1, Art. IX] reasonable working hours.
(b) To submit a declaration under oath of
his assets, liabilities and net worth
upon assumption of office and as
often thereafter as may be required
by law [Sec. 17, Art. XI]
(c) To owe the State and the Constitution
allegiance at all times [Sec. 18, Art. XI]
(2) Obligations under the Code of Conduct
and Ethical Standards for Public Officials
and Employees [DE LEON, 2014, citing Sec.
5, RA 6713]
(a) Act promptly on letters and requests
All public officials shall, within fifteen
(15) working days from receipt,
respond to letters, telegrams or other
means of communication sentb by
the public. The reply must contain the
answer taken on the request.
(b) Submit annual performance reports
All heads or other responsible officers
of agencies of the government or of
GOCCs shall, within forty-five (45)
working days from the end of the year,
render a full and complete report of
performance and accomplishments,
as prescribed by existing rules and
regulations of the agency, office or
corporation concerned.
(c) Process documents and papers
expeditiously
All official papers and documents
must be processed and completed
within a reasonable time from the
preparation thereof and must contain,
as far as practicable, not more than
three (3) signatories therein.
(d) Act immediately on the public’s
personal transactions
All public officials and employees
must attend to anyone who wants to
avail himself of the services of their
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G. Rights of Public RIGHT TO COMPENSATION [DE LEON]


Compensation – in reference to the
Officers remuneration of public officers means pay for
doing all that may be required of the official,
whether it is in the form of a fixed salary or
i. In general wages, per diems, fees, commissions, or
ii. Right to compensation perquisites of whatsoever character.

iii. Other rights Distinguished from honorarium which is


something given not as a matter of obligation
but in appreciation for services rendered.
IN GENERAL [DE LEON] Salary –personal compensation to be paid to
(1) Rights incident to public office the public officer for his services, and it is
generally a fixed annual or periodical
The rights of one elected or appointed to payment depending on the time and not on
office are, in general, measured by the the amount of the services he may render
Constitution or the law under which he
was elected or appointed. Distinguished from wages in that salary is
given to officers of higher degree of
Right to office – The just and legal claim employment than those to whom wages are
to exercise the powers and the given.
responsibilities of the public office.
(2) Rights as a citizen
Constitutional Provisions Regarding
(a) Protection from publication Compensation of Public Officers
commenting on his fitness and the
like The salaries of Senators and Members of the
House of Representatives shall be
The mere fact that one occupies a determined by law. No increase in said
public office does not deprive him of compensation shall take effect until after the
the protection accorded to citizens by expiration of the full term of all the Members
the Constitution and the laws. of the Senate and the House of
However, by reason of the public Representatives approving such increase.
character of his employment or office, [Sec.10, Art. VI]
a public officer is, in general, held not The President shall have an official residence.
entitled to the same protection from The salaries of the President and Vice-
publications commenting on his President shall be determined by law and
fitness and the like, as is accorded to shall not be decreased during their tenure.
the ordinary citizen. No increase in said compensation shall take
(b) Engaging in certain political and effect until after the expiration of the term of
business activities the incumbent during which such increase
was approved. They shall not receive during
The governmental interest in their tenure any other emolument from the
maintaining a high level service by Government or any other source. [Sec. 6,
assuring the efficiency of its Art.VII]
employees in the performance of
their tasks may require public The salary of the Chief Justice and of the
employees to suspend or refrain from Associate Justices of the Supreme Court, and
certain political or business activities of judges of lower courts shall be fixed by law.
that are embraced within the During their continuance in office, their salary
constitutional rights of others, when shall not be decreased. [Sec. 10, Art. VIII]
such activities are reasonably No elective or appointive public officer or
deemed inconsistent with their public employee shall receive additional, double, or
status and duties. indirect compensation, unless specifically
authorized by law, nor accept without the
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consent of the Congress, any present, who in good faith has had possession of the
emolument, office, or title of any kind from office and has discharged the duties
any foreign government. [Sec. 8, Art. IX-B] pertaining thereto, is legally entitled to the
emoluments of the office, and may in an
The Congress shall provide for the
appropriate action recover the salary, fees
standardization of compensation of
and other compensations attached to the
government officials and employees,
office.
including those in government-owned or
controlled corporations with original charters,
taking into account the nature of the
responsibilities pertaining to, and the OTHER RIGHTS [De Leon, 2014]
qualifications required for their positions. (1) Rights under the Constitution
[Sec. 5, Art. IX-B]
(a) Right to self-organization
The right to self-organization shall not be
Basis of Right denied to government employees. [Sec.
The relation between an officer and the 2(5), Art. IX-B] Government employees in
public is not the creation of contract, nor is the civil service are granted the right to
the office itself a contract. Hence, his right to form unions enjoyed by workers in the
compensation is not the creation of contract. private sector.
It exists as the creation of law and belongs to However, the constitutional grant to
him not by force of any contract but because government workers of the right to form
the law attaches it to the office. labor organizations or unions does not
The right to compensation grows out of the guarantee them the right to bargain
services rendered. After services have been collectively with the government or to
rendered, the compensation thus earned engage in concerted activities including
cannot be taken away by a subsequent law. the right to strike, which are enjoyed by
private employees. They are prohibited
As a general proposition, a public official is from staging strikes, demonstrations,
not entitled to any compensation if he has mass leaves, walk-outs and other forms
not rendered any service. [Acosta v. CA, of mass actions which will result in
2000] temporary stoppage or disruption of
public services

Salary Not Subject to Garnishment (b) Right to protection of temporary


employees
The salary of a public officer may not, by
garnishment, attachment or order of Employees in the government given
execution, be seized before being paid to him temporary appointments do not enjoy
and, appropriated for the payment of his security of tenure. They shall be given
debts. such protection as may be established by
law to prevent indiscriminate dismissals
The salary check of a government officer or and to see to it that their separation or
employee does not belong to him before it is replacement is made only for justifiable
physically delivered to him. Until that time, reasons
the check belongs to the government as
public fund and may not be garnished. The (c) Freedom of members of Congress from
functions and public services rendered by the arrest and from being questioned
State cannot be allowed to be paralyzed or A Senator or Member of the House of
disrupted by the diversion of public funds Representatives shall, in all offenses
from their legitimate and specific objects, as punishable by not more than six years
appropriated by law. [De la Victoria v. Burgos, imprisonment, be privileged from arrest
(1995)] while Congress is in session. No member
Right of a de facto officer to salary – Where shall be questioned nor be held liable in
there is no de jure officer, a de facto officer, any other place for any speech or debate

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in the Congress or in any committee (d) reinstatement


thereof. [Sec. 11, Art. VI] (e) reemployment
(d) Right not to be removed or suspended (f) detail
except for cause provided by law (g) reassignment
Implicit in the constitutional prohibition (h) demotion and
against removal or suspension except for (i) separation
cause, is the existence of a charge, due
hearing, and the finding of guilt by the
proper authority. (5) Rights under the Revised Government
Service Insurance Act
Covered employees are entitled to retirement
(2) Rights under the Civil Service Decree and
benefits, separation benefits, unemployment
the New Administrative Code
or involuntary separation benefits, disability
(a) Right to preference in promotion benefits, survivorship benefits, funeral
benefits and life insurance benefits.
(b) Right to present complaints and
grievances Right to Retirement Pay – given to
government employees to reward them for
(c) Right not to be suspended or
giving giving the best years of their lives in
dismissed except for cause as
the service of their country. Retirement laws
provided by law and after due process
are liberally construed in favor of the retiree
(d) Right to organize [Profeta v. Drilon (1992)]. It may not be
withheld and applied to his indebtedness to
the government [Tantuico v. Domingo (1994)]
(3) Next-in-Rank Rule
This rule specifically applies only in cases of
(6) Right to Reimbursement and Indemnity
promotion. It neither grants a vested right to
the holder nor imposes a ministerial duty on When a public officer, in the due performance
the appointing authority to promote such of his duties, has been expressly or impliedly
person to the next higher position. required by law to incur expenses on the
public account, not covered by his salary or
The rule means that old employees should
commission and not attributable to his own
considered first on the assumption that they
neglect or default, the reasonable and proper
have gained not only superior skills but also
amount thereof forms a legitimate charge
greater dedication to the public service.
against the public for which he should be
However, the law does not preclude the reimbursed.
infusion of new blood, younger dynamism, or
Within the same limits, the officer is entitled
necessary talents into the government service
to be indemnified by the public against the
provided that the acts of the appointing
consequences of acts which he has been
power are bonafide for the best interest of the
expressly or impliedly required to perform
public service and the person chosen has the
upon the public account, and which are not
needed qualifications. [Corazon Cabagnot v.
manifestly illegal and which he does not
Civil Service Commission, 1993]
know to be wrong.

(4) Personnel Actions


Any action denoting the movement or
progress of personnel in the civil service is
known as personnel action. It includes:
(a) appointment through certification
(b) promotion
(c) transfer
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(7) Right to Reinstatement and Back Salary


H. Liabilities of Public
Reinstatement means the restoration to a
state or condition from which one had been Officers
removed or separated. One who is reinstated
assumes the position he had occupied prior
to the dismissal. Back salary or wages is a i. In general
form of relief that restores the income that ii. Preventive suspension and back salaries
was lost by reason of unlawful dismissal
iii. Illegal dismissal, reinstatement and back
An officer who has been lawfully separated or salaries
suspended from his office is not entitled to
compensation for the period during which he
was so suspended. Where an officer was IN GENERAL
unlawfully removed and was prevented for a
time by no fault of his own from performing The liability of a public officer to an individual
the duties of his office, he may recover or the public is based upon and is co-
backwages, and the amount that he had extensive with his duty to the individual or the
earned in other employment during his public. Public officers in respect of the
unlawful removal should not be deducted persons to whom their duty is owing, are
from his unpaid salary. divdided into 2 classes – those whose duty is
owed solely to the public and those who duty
is owed in some degree to the individuals. An
(8) Rights to Property, Devices and individual has no cause of action against a
Inventions public officer for a breach of duty owed solely
Title to a public office carries with it the right, to the public. [DE LEON]
during the incumbency of the officer, to the A public officer is not liable for the injuries
insignia and property thereof. sustained by another as a consequence of
The question whether records, discoveries, official acts done within the scope of his
inventions, devices, data and the like, made authority, except as otherwise provided by
or prepared by an officer while he is law. [NACHURA]
occupying the office, belong to the public, A public officer shall not be civilly liable for
must be determined with reference to the acts done in the performance of his official
facts of each case. duties, unless there is a clear showing of bad
(a) Where such are indispensable in the faith, malice or negligence. [Sec. 38(1),
proper conduct of the office, the officer Chapter 9, Book I, Admin. Code]
may not take them as his own property. However, under Sec. 24 of the Local
(b) If, not being required by law, they are Government Code, local governments and
prepared by the officer apart from his their officials are expressly not exempt from
official duties and are not indispensable liability for death or injury to persons or
in the proper conduct of the office, the damage to property.
officer may acquire a property right
therein.
THREE-FOLD RESPONSIBILITY OF PUBLIC
OFFICERS

A public officer is under a three-fold


responsibility for violation of duty or for
wrongful act or omission:
(1) Civil Liability: if the individual is
damaged by such violation, the
official shall, in some cases, be held

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liable civilly to reimburse the injured Liability on Contracts – the public officer shall
party be personally liable on contracts he enters
into if he acted without, or exceeded his
(2) Criminal Liability: if the law has
authority
attached a penal sanction, the officer
may be punished criminally. The Liability on Tort – The public officer shall be
mere fact that an officer is acting in personally liable if he goes beyond the scope
an official capacity will not relieve of his authority, or exceeds the powers
him from criminal liability. conferred upon him by law
(3) Administrative Liability: such violation
may also lead to imposition of fine, LIABILITY OF SUPERIOR OFFICERS FOR
reprimand, suspension or removal ACTS OF SUBORDINATE OFFICERS
from office, as the case may be. A head of a department or a superior officer
shall not be civilly liable for the wrongful acts,
omissions of duty, negligence or misfeasance
LIABILITY OF MINISTERIAL OFFICERS of his subordinates, unless he has actually
[NACHURA] authorized by written order the specific act or
misconduct complained of [Sec. 38(3),
(1) Nonfeasance - Neglect or refusal to
Administrative Code]
perform an act which is the officer’s
legal obligation to perform
(2) Misfeasance – Failure to use that LIABILITY OF SUBORDINATE OFFICERS
degree of care, skill, and diligence No subordinate officer or employee shall be
required in the performance of official civilly liable for acts done by him in good faith
duty in the performance of his duties. However, he
shall be liable for wilful or negligent acts
(3) Malfeasance – The doing, through
done by him which are contrary to law,
ignorance, inattention or malice, of
morals, public policy and good customs even
an act which he had no legal right to
if he acted under orders or instructions of his
perform
superiors. [Art. 39, Chapter 9, Book I, Admin.
Code]
STATUTORY LIABILITY
(a) Article 32, Civil Code –
NON-APPLICABILITY OF THE DOCTRINE
liability for failure or neglect
OF COMMAND RESPONSIBILITY AND THE
to perform official duty
PRINCIPLE OF RESPONDEAT SUPERIOR
(b) Article 33, Civil Code – TO PUBLIC OFFICERS
liability for violating rights Neither the principle of command
and liberties of private responsibility (in military or political
individuals structural dynamics) nor the doctrine of
(c) Article 34, Civil Code – respondeat superior (in quasi delicts) applies
liability of peace officers for in the law of public officers. The negligence of
render aid or protection to a the subordinate cannot be ascribed to his
person; subsidiary liability of superior in the absence of evidence of the
municipal corporations in latter’s own negligence [Reyes v. Rural Bank
such case of San Miguel (2004)]

(d) Sec. 38(2), Chapter 9, Book I, Exception: The President, being the
Admin. Code -- liability for commander-in-chief of all armed forces,
neglecting to perform a duty necessarily possesses control over the
without just cause within (i) a military that qualifies him as a superior within
period fixed by law or the purview of the command responsibility
regulation; or (ii)a reasonable doctrine. [In the Matter of the Petition for Writ
period, if no period is fixed. of Amparo and Habeas Data in favor of Noriel

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H. Rodriguez; Rodriguez v. Macapagal-Arroyo having been under preventive suspension


(2011)] during the pendency of the appeal in the
event he wins the appeal. [Sec. 47(4),
Chapter 6, Subtitle A, Title I, Book V,
PREVENTIVE SUSPENSION AND BACK Admin. Code]
SALARIES Employees are entitled to compensation
for the period of their suspension pending
Preventive Suspension is a disciplinary appeal if they are found innocent. Such
measure which is intended to enable the suspension is actually punitive and it is
disciplinary authority to investigate charges precisely because respondent is
against the respondent by preventing the penalized before his sentence is
latter from using his position or office to confirmed that he should be paid his
influence witnesses, to intimidate them, or to salaries in the event he is exonerated. It
tamper with the records which may be vital in would be unjust to deprive him of his pay
the prosecution of the case against him. as a result of immediate execution of the
decision against him and continue to do
so even after it is shown that he is
KINDS OF PREVENTIVE SUSPENSION innocent of the charges for which he was
suspended. (De Leon, 2014)
(a) Preventive suspension pending
investigation
Pending Investigation Pending Appeal
The proper disciplining authority may
preventively suspend any subordinate Not a penalty but only Punitive in character
officer under his authority pending an a means of enabling
investigation, if the charge against such the disciplining
officer involves dishonesty, oppression or authority to conduct
grave misconduct or neglect in the unhampered
performance of duty or if there are investigation
reasons to believe that the respondent is
guilty of the charges which would warrant No backwages due for If exonerated –
his removal from service [Sec. 51, Chapter the period of reinstated with full pay
6, Subtitle A, Title I, Book V, Admin. Code] suspension even if for the period of
No compensation is due for the period of found innocent unless suspension
preventive suspension pending suspension is
investigation. Such preventive suspension unjustified
is authorized by the Civil Service Law and If reprimanded –
cannot, therefore, be considered cannot claim
“unjustified” even if later the charges are backwages. Penalty is
dismissed. It is one of those sacrifices commuted
which holding a public office requires for
the public good. For this reason, it is
limited to 90 days unless the delay in the
conclusion of the investigation is due to
the employee concerned. (De Leon, 2014)

(b) Preventive suspension pending appeal


An appeal [from the decision of the
disciplinary authority] shall not stop the
decision from being executory, and in
case the penalty is suspension or removal,
the respondent shall be considered as

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RULES ON PREVENTIVE SUSPENSION: (b) Evidence of guilt is strong; and


(c) Given the gravity of the offense, there
(A) Appointive Officials. – is great probability that the
continuance in office of of the
(1) Not a Presidential Appointee
respondent could:
(a) By – the proper disciplining authority
(i) influence the witnesses; or
(b) Against – any subordinate officer or
(ii) pose a threat to the safety and
employee under such authority
integrity of the records and other
(c) When – pending an investigation evidence.
(d) Grounds – (4) Duration
(i) Charge involves dishonesty, (a) Single administrative case – not to
oppression or grave misconduct, exceed 60 days
neglect in the performance of
(b) Several administrative cases – not
duty; or
more than 90 days within a single
(ii) There are reasons to believe that year on the same ground or grounds
respondent is guilty of the existing and known at the time of the
charges which would warrant his first suspension
removal from the service
(5) Preventive suspension of an elective local
(e) Period – administrative investigation official is not an interruption of the 3-
must be terminated within 90 days, term limit rule [Aldovino v. COMELEC
otherwise the respondent shall be (2009)]
automatically reinstated unless the
delay in the disposition of the case is
due to the fault, negligence or Note: The authority to preventively suspend is
petition of the respondent, in which exercised concurrently by the Ombudsman,
case the period of delay shall not be pursuant to RA 6770, which authorizes
counted preventive suspension of 6 months. [Hagad v.
Gozo-Dadole, 1995]
(2) Presidential Appointee
Preventive suspension in the case of
presidential appointees which may initially be ILLEGAL DISMISSAL, REINSTATEMENT
justified under the circumstances may raise a AND BACK SALARIES
due process question if continued for an
unreasonable period of time. (De Leon, 2014)
DEFINITIONS
Reinstatement means the restoration to a
(B) Elective Officials [Sec. 63, RA 7160]. – state or condition from which one had been
removed or separated. One who is reinstated
(1) By – against assumes the position he had occupied prior
(a) President – elective official of a to the dismissal. Back salary or wages is a
province, HUC or ICC form of relief that restores the income that
was lost by reason of unlawful dismissal
(b) Governor – elective official of CC or
municipality
(c) Mayor – elective official of a brgy DUTY OF PLAINTIFF TO PROVE HIS RIGHT
TO OFFICE
(2) When – at any time after the issues are For a plaintiff to succeed in seeking
joined reinstatement to an office, he must prove his
(3) Requisites: right to the office. In a quo warranto
proceeding, the person suing must show that
(a) After the issues are joined; he has a clear right to the office allegedly

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held unlawfully by another. Absent that right,


the lack of qualification or eligibility of the I. Immunity of Public
supposed usurper is immaterial.
Officers
Where remocal or suspension lawful – An
officer who has been lawfully separated or
suspended from his office is not entitled to General Rule: The doctrine of official
compensation for the period during which he immunity applies to complaints filed against
was so suspended, even if it be subsequently public officials for acts done in the
determined that the cause for which he was performance of their duties.
suspended was unjustified (so long as the Exceptions:
preventive suspension was within the periods
provided by law). (1) Where the public official is charged in
his official capacity for acts that are
unlawful and injurious to the rights of
Where removal or suspension unlawful – others.
Where an officer was unlawfully removed and (2) Where the public official is clearly
was prevented for a time by no fault of his being sued not in his official capacity
own from performing the duties of his office, but in his personal capacity, although
he may recover backwages, and the amount the acts complained of may have
that he had earned in other employment been committed while he occupied a
during his unlawful removal should not be public position [Lansang v. CA
deducted from his unpaid salary. (2000)].
(3) Suit to compel performance of official
OTHER RULES duty or restrain performance of an act
The award for backwages is limited to a (i.e. mandamus, prohibition).
maximum period of 5 years and not to full
back salaries from illegal dismissal up to
reinstatement. A. RATIONALE

A petition for quo warranto and mandamus


affecting title to public office must be filed The doctrine of official immunity promotes
within 1 year from the date the petitioner is fearless, vigorous and effective
ousted from his position. The claim for back administration of policies of government. It is
salaries and damages is also subject to the 1- generally recognized that public officers and
year prescriptive period. (De Leon, 2014) employees would be unduly hampered,
deterred and intimidated in the discharge of
their duties, if those who act improperly, or
even exceed the authority given them, were
not protected to some reasonable degree by
being relieved from private liability. The
threat of suit could also deter competent
people from accepting public office.
Acts of a public officer are protected by the
presumption of good faith. Even mistakes
concededly committed by such a public
officer in the discharge of his official duties
are not actionable as long as it is not shown
that they were motivated by malice or gross
negligence amounting to bad faith.

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OTHER PUBLIC POLICY CONSIDERATIONS:


(1) Loss of valuable time caused by such J. De Facto Officers
actions
(2) Unfairness of subjecting officials to i. De facto doctrine
personal liability for the acts of their
ii. De facto officer defined
subordinates
iii. Elements of a de facto officership
(3) A feeling that the ballot and removal
procedures are more appropriate iv. Distinguished from other officers
methods of dealing with the
v. Office created under an unconstitutional
misconduct in public office.
statute
vi. Legal effect of acts of de facto officers
B. OFFICIAL IMMUNITY DISTINGUISHED
vii. Liability of de facto officers
FROM STATE IMMUNITY
ix. Right to compensation of de facto officer
The immunity of public officials is a more
limited principle than state immunity since its
DE FACTO DOCTRINE
purpose is not directly to protect the
It is the doctrine that a person who is
sovereign, but rather to do so only collaterally, admitted and sworn into office by the proper
by protecting the public official in the
authority is deemed to be rightfully in such
performance of his government function.
office until:
The doctrine of sovereign immunity is
(1) he is ousted by judicial declaration in
principally rested upon the tenuous ground
a proper proceeding; or
that the king could do no wrong. It served to
protect the impersonal body politic or (2) his admission thereto is declared void.
government itself from tort liability. Purpose: to ensure the orderly functioning of
Official immunity serves as a protective aegis government. The public cannot afford to
for public officials from tort liability for check the validity of the officer's title each
damages arising from discretionary acts or time they transact with him.
functions in the performance of their official
duties.
DE FACTO OFFICER DEFINED
One who has the reputation of being the
C. PRESIDENTIAL IMMUNITY FROM SUIT officer that he assumes to be, and yet is not a
good officer in point of law. [Torres v. Ribo
(1948)]
General Rule: The President shall be immune
from suit during his tenure.
Exception: Impeachment complaint [Sec. 2 ELEMENTS OF A DE FACTO OFFICERSHIP
Art. XI, Constitution] (1) A validly existing public office (i.e. a
de jure office)
While the President is immune from suit, she
may not be prevented from instituting a suit. (2) Actual physical possession of the
office in good faith.
A non-sitting President does not enjoy
immunity from suit, even for acts committed (3) Color of title to the office or general
during the latter’s tenure [In the Matter of the acquiescence by the public
Petition for the Writ of Amparo and Habeas There is color of title to the office in ANY of
Data in favor of Noriel H. Rodriguez; Rodriguez the following circumstances:
v. Macapagal-Arroyo (2011)].
(a) There is no known appointment or
election, but people are induced by
circumstances of reputation or
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acquiescence to suppose that he is (j) He is ineligible;


the officer he assumes to be.
(ii) The electing or appointing body is
Consequently, people do not to
not empowered to do such;
inquire into his authority, and they
submit to him or invoke his action; (iii) His exercise of his function was
defective or irregular; and
(b) He possessed public office under
color of a known and valid (iv) The public DOES NOT KNOW of
appointment or election, but he such ineligibility, want of authority, or
failed to conform to some precedent irregularity.
requirement or condition (e.g., taking
(d) He possessed public office under
an oath or giving a bond);
color of an election or an
(c) He possessed public office under appointment by or pursuant to a
color of a known election or public, unconstitutional law, before
appointment, but such is VOID the same is adjudged to be such.
because:
DISTINGUISHED FROM OTHER OFFICERS
Officer De Jure v. Officer De Facto (Asked in 2000, 2004)
De Jure De Facto
Requisites A de jure office exists; De jure office;
He is legally qualified for the office; He assumed office under color of right or
He is lawfully chosen to such office; general acquiescence by the public;
He undertakes to perform the duties of such He actually and physically possessed the
office according to law’s prescribed mode. office in good faith.

Basis of Right: Reputation: He possesses office and


Authority He has the lawful right / title to the office performs its duties under color of right, but
he is not technically qualified to act in all
points of law
How Ousted Cannot be ousted even in a direct In a direct proceeding (quo warranto);
proceeding Cannot be ousted collaterally
Validity of official Valid, subject to exceptions (e.g., acting Valid as to the public until his title to the
acts beyond his scope of authority, etc.) office is adjudged insufficient.
Rule on Rightfully entitled to compensation; Conditionally entitled to receive
Compensation The principle "No work, no pay" is compensation: only when no de jure officer is
inapplicable to him. declared;
He is paid only for actual services rendered.
Officer De Facto v. Intruder
De Facto Intruder

Nature He becomes officer with color of title under He possesses office and performs official
the circumstances discussed above acts without actual or apparent authority.
Basis of Authority Color of right or title to office None. Neither lawful title nor color of
right to office.
Validity of Valid as to the public until his title to the Absolutely void; His acts can be
“official” acts office is adjudged insufficient impeached at any time in any proceeding

Rule on Entitled to receive compensation only when Not entitled to compensation at all.
Compensation no de jure officer is declared and only for
actual services rendered.

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An intruder/usurper may grow into a de facto LIABILITY OF DE FACTO OFFICERS


officer if his assumption of office is
[DE LEON]
acquiesced in, as when he continues to act for
so long a time as to afford a strong A de facto officer generally has the same
presumption that he has been duly appointed degree of liability and accountability for
or elected. [DE LEON] official acts as a de jure officer.
The de facto officer may be liable for all
imposable penalties for ANY of the following
OFFICE CREATED UNDER AN
acts:
UNCONSTITUTIONAL STATUTE
(1) usurping or unlawfully holding office;
The prevalent view is that a person appointed
or elected in accordance with a law later (2) exercising the functions of public
declared to be unconstitutional may be office without lawful right;
considered de facto at least before the
(3) ineligibility for the public office as
declaration of unconstitutionality.
required by law
The officer cannot excuse responsibility for
LEGAL EFFECT OF ACTS OF DE FACTO crimes committed in his official capacity by
OFFICERS asserting his de facto status.
[Monroy v. CA (1967)]
(1) As regards the officers themselves: A party RIGHT TO COMPENSATION OF DE FACTO
suing or defending in his own right as a OFFICER
public officer must show that he is an
General Rule: A de facto officer cannot sue
officer de jure. It is not sufficient that he
for the recovery of salary, fees or other
be merely a de facto officer.
emoluments attached to the office, for the
(2) As regards the public and third persons: duties he has performed. His acts, as far as he
The acts of a de facto officer are valid as himself is concerned, are void.
to third persons and the public until his
Moreover, the rightful incumbent may recover
title to office is adjudged insufficient.
from the de facto officer the salary received by
Rationale: The doctrine is intended not for the the latter during his wrongful tenure. A de
protection of the public officer, but for the facto officer, not having good title, takes the
protection of the public and individuals who salaries at his risk and must account to the de
get involved in the official acts of persons jure officer for whatever salary he received
discharging the duties of a public office. during the period of his wrongful tenure, even
if he occupied the office in good faith.
[Monroy v CA, 1967]
DE FACTO OFFICER’S OFFICIAL ACTS ARE
Exception: Where there is no de jure officer, a
NOT SUBJECT TO COLLATERAL ATTACK
de facto officer, who in good faith has had
A de facto officer’s and his acts’ validity possession of the office and has discharged
cannot be collaterally questioned in the duties pertaining thereto, is legally
proceedings where he is not a party, or which entitled to the emoluments of the office, and
were not instituted to determine the very may in an appropriate action recover the
question. salary, fees and other compensations
attached to the office. [Civil Liberties Union v.
Remedy: Quo warranto proceedings filed by:
Executive Secretary, 1991]
(a) The person claiming entitlement to the
Moreover, in the case of Gen. Manager,
office;
Philippine Ports Authority v. Monserate [G.R.
(b) The Republic of the Philippines No . 129616, 2002], the Court held that while
(represented by the Solicitor-General or a the assumption of the de jure officer of
public prosecutor). another position under protest and
acceptance of corresponding emoluments do
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not constitute abandonment of her rightful


office, she cannot recover full back wages for K. Termination of
such rightful office. She is only entitled to
back pay differentials between the salary
Official Relation
rates for the lower position she assumed and
the position she is rightfully entitled to, which A. EXPIRATION OF THE TERM OR
amounts are to be paid by the de facto officer. TENURE OF OFFICE

General rule: Upon the expiration of the


officer’s term, his rights, duties and authority
as a public officer must ipso facto cease.
Exception: Unless he is authorized by law to
hold over.
Where an office is created, or an officer is
appointed, for the purpose of performing a
single act or the accomplishment of a given
result, the office terminates and the officer’s
authority ceases with the accomplishment of
the purposes which called it into being.

Term of office – the time during which the


officer may claim to hold the office as of right
and fixes the interval after which the several
incumbents shall succeed one another. It is a
fixed and definite period of time to hold office,
perform its functions and enjoy its privileges
and emoluments until the expiration of said
period.
Tenure of office – the period during which
the incumbent actually holds office.

B. REACHING THE AGE LIMIT


(RETIREMENT)

This mode of termination results in the


compulsory and automatic retirement of a
public officer.
Compulsory Retirement Age
(1) Members of the Judiciary – 70 yrs old
(2) Other government officers and
employees – 65 yrs old [new GSIS
Charter]
(3) Optional retirement age – after
rendition of the minimum number of
years of service [RA 1616]

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C. DEATH OR PERMANENT DISABILITY position. Rather, it manifests his submission


to the will of the political authority and the
appointing power [Ortiz v. COMELEC (1988)]
The death of the incumbent of an office,
which is by law to be filled by one person only,
necessarily renders the office vacant. The When resignation is effective
public official cease to hold office upon his
death and all his rights, duties and (1) Date specified in the tender
obligations pertinent to the office are (2) If no such date is specified,
extinguished. resignation shall be effective when
Permanent disability covers both physical or the public officer receives notice of
mental disability. the acceptance of his resignation,
NOT the date of the letter or notice of
acceptance [Gamboa v. CA (1981)]
D. RESIGNATION
Revocation of Resignation
Resignation – the act of giving up or the act
of a public officer by which he declines his A resignation can be validly withdrawn before
office and renounces the further right to use it. the public official is notified of its acceptance
It is an expression of the incumbent in some [Republic v. Singun (2008)].
form, express or implied, of the intention to Art. 238 of the RPC makes it an offense for
surrender, renounce and relinquish the office any public officer who, before acceptance of
and the acceptance thereof by competent his resignation, abandons his office to the
lawful authority [Ortiz v. COMELEC (1988)]. detriment of the public service
Requisites
(1) Intention to relinquish a part of the Acceptance of resignation
term
(a) As provided by law
(2) Act of relinquishment
(b) If the law is silent on who shall accept
(3) Acceptance by the proper authority, and the public officer is an appointive
either expressly or implied officer, tender to the appointing
Forms of resignation authority. If elective, tender to those
authorized by law
(1) Where a law requires that resignation
is to be made in any particular form, Resigning Public Officer Accepting Authority
that form must be substantially
complied with. President and VP Congress

(2) Where no such form is prescribed, no Members of Congress Respective Houses


particular mode is required, but the Governor, Vice Gov, President
resignation may be made by any Mayor, Vice Mayor, of
method indicative of the purpose. It HUC and ICC
need not be in writing, unless so City Mayors and Vice Governor
required by law. A written resignation, Mayors of CCs,
delivered to the board or officer Municipal Mayors and
authorized to receive it and fill the Vice Mayors
vacancy thereby created, is prima
facie, but not conclusive evidence of Sanggunian Members Sanggunian concerned
the intention to relinquish the office. Elective Barangay Municipal or City
N.B. Courtesy resignation cannot properly Officials Mayors
be interpreted as a resignation in the legal Appointive Public Appointing Authority
sense for it is not necessarily a reflection of a Officers
public official’s intention to surrender his
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E. ACCEPTANCE OF AN INCOMPATIBLE F. ABANDONMENT OF OFFICE


OFFICE
Abandonment – voluntary relinquishment of
General Rule: One who, while occupying one an office by the holder of all right, title, or
office, accepts another office incompatible claim thereto with the intention of not
with the first ipso facto vacates the first office. reclaiming it or terminating his possession
and control thereof.
Exceptions:
Requisites
(1) Where the public officer is authorized
by law to accept the other office (ex (1) Intention to abandon
officio capacity). (2) Overt act by which the intention is
(2) If the public officer accepts a carried into effect
forbidden office, the holding of the
second office is absolutely void.
Distinguished from Resignation
Rationale: It is contrary to the policy of the
law that the same individual should While resignation in general is a formal
undertake to perform inconsistent and relinquishment, abandonment is a voluntary
incompatible duties. relinquishment through non-user. Non-user
refers to a neglect to use a privilege or a right
or to exercise an easement or an ofice
When Incompatible [Municipality of San Andres, Catanduanes v.
CA (1998)]
Incompatibility is to be found in the character
of the offices and their relation to each other,
in the subordination of one to the other and What may Constitute as Abandonment
in the nature of the functions and duties
which attach to them (1) Abandonment may result from
acquiescence by the officer in his
It exists where: wrongful removal [Canonizado v.
(1) There is conflict in such duties and Aguirre (2001)].
functions, so that the performance of (2) An officer or employee shall be
the duties of one interferes with the automatically separated from the
performance of the duties of the other service if he fails to return to the
as to render it improper from service after the expiration of one-
consideration of public policy for one year leave of absence without pay.
person to retain both. Also, officers and employeees who
(2) One is subordinate to the other and is are absent for at least 30 days
subject in some degree to its without approved leave (AWOL)
supervisory power for obviously in shall be dropped from the service
such a situation, the design that one after due notice [Civil Service Rules].
acts as a check on the other would be
frustrated.
G. PRESCRIPTION OF RIGHT TO OFFICE
(3) The Constitution or the law itself
declares the incompatibility even
though there is no inconsistency in Under the Rules of Court, quo warranto is the
the nature and functions of the offices. proper remedy against a public officer for his
ouster from office. The petition should be
filed within one (1) year after the cause of
such ouster or the right of the plaintiff to hold
such office or position arose; otherwise, the
action will be barred. The filing of an
administrative action does not suspend the

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period for filing the appropriate judicial (3) Removal not for a just cause, or non-
proceeding. compliance with the prescribed
procedure constitutes a reversible
Rationale for the one year period: Title to
error and entitles the officer or
public office should not be subjected to
employee to reinstatement with back
uncertainties but should be determined as
salaries and without loss of seniority
speedily as possible.
rights.

H. REMOVAL Elements of Removal for Cause


(1) The cause is a legal cause, i.e.
Removal – ouster of an incumbent public determined by law and not the
officer before the expiration of his term. It appointing power
implies that the office exists after the ouster.
Another term used is dismissal [De Leon]. (2) As a general rule, the cause must be
connected to the functions and duties
It is the forcible and permanent separation of of the office
the incumbent from office before the
expiration of his term [Ingles v. Mutuc (1968)]. (3) The cause must be of a substantial
nature as to directly affect the
interest of the public
Modes of Removal (4) The removal must be after due
Removal from office may be express or process
implied.
(1) Appointment of another officer in the Extent of President’s Removal Power
place of the incumbent operates as a
removal if the latter was notified [De (1) With respect to non-career officers
Leon]. exercising purely executive functions
whose tenure is not fixed by law (i.e.
(2) The transfer of an officer or employee members of the Cabinet), the
without his consent from one office to President may remove them with or
another, whether it results in without cause and Congress may not
promotion or demotion, restrict such power.
advancement or reduction in salary, is
equivalent to his illegal removal or (2) With respect to officers exercising
separation from the first office. [Gloria quasi-legislative or quasi-judicial
v. Court of Appeals (2000)] functions (e.g. members of the SEC),
they may be removed only on
(3) Demotion to a lower position with a grounds provided by law to protect
lower rate of compensation is also their independence.
equivalent to removal if no cause is
shown for it. [De Guzman v. CSC (3) With respect to constitutional officers
(1994)] removable only by means of
impeachment, and judges of lower
Limitations courts, they are not subject to the
(1) Constitutional guarantee of security removal of the President.
of tenure. No officer or employee of
the civil service shall be removed or
suspended except for cause provided I. IMPEACHMENT
by law [Sec. 2(3), Art IX-B,
Constitution]. See Accountability of Public Officers, infra
(2) Removal or resignation from office is
not a bar to a finding of
administrative liability [Office of the
President v. Cataquiz (2011)].
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J. ABOLITION K. CONVICTION OF A CRIME

Requisites [Mendoza v. Quisumbing (1990)]: When the penalties of perpetual or temporary


absolute disqualification or penalties of
(1) Abolition must be done in good faith
perpetual or temporary special
(2) Clear intent to do away with the office
disqualification are imposed upon conviction
(3) Not for personal or political reasons
of a crime, termination of official relation
(4) Cannot be implemented in a manner
results, for one of the effects of the imposition
contrary to law
of said penalties is the deprivation of the
public office which the offender may have
Limitations held.
(1) Except when restrained by the Conviction means conviction in a trial court. It
Constitution, the Congress has the contemplates a court finding guilt beyond
right to abolish an office, even during reasonable doubt followed by a judgment
the term for which an existing upholding and implementing such finding.
incumbent may have been elected.
Valid abolition of office does not
constitute removal of the incumbent. L. NON-USER
(2) No law shall be passed reorganizing
the Judiciary when it undermines the The office of any official elected who fails or
security of tenure of its members [Sec. refuses to take his oath of office within six
2, Art. VIII, Constitution]. months from his proclamation shall be
(3) The fundamental principle afforded considered vacant, unless said failure is for a
to civil service employees against cause or causes beyond his control [Sec. 11,
removal “except for cause as BP 881]
provided by law” does not protect
them against abolition of the
positions held by them in the absence M. RECALL
of any other provision expressly or
impliedly prohibiting abolition It is a method of removal prior to the
thereof. [Castillo v. Pajo (1958)] expiration of the term of a public officer on
account of loss of confidence exercised
directly by the registered voters of a local
Reorganization – reduction of personnel, government unit.
consolidation of offices, or abolition thereof
by reason of economy or redundancy of
functions. It could result in the loss of one’s N. FILING OF A CERTIFICATE OF
position through removal or abolition of an CANDIDACY BY AN APPOINTIVE
office. However, for a reorganization for the OFFICIAL
purpose of economy or to make the
bureaucracy more efficient to be valid, it must
pass the test of good faith; otherwise, it is In Quinto v. COMELEC (2010), the Supreme
void ab initio [United Claimant Association of Court upheld the constitutionality of Sec. 13
NEA v. NEA (2012)] (3) of RA 9369 and Sec. 66 of BP 881 which
states that an appointive officials is ipso facto
Reorganization is valid provided they are resigned from his office upon the filing of a
pursued in good faith certificate of candidacy. An elective official
Attrition – reduction of personnel as a result who files a certificate of candidacy is not
of resignation, retirement, dismissal in deemed resigned from his position.
accordance with existing laws, death or Rationale: Substantial distinctions exist
transfer to another office [Sec. 2(a), RA 7430 between elective officials and appointive
Attrition Law] officials. The former occupy their office by
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virtue of the mandate of the electorate. On


the other hand, appointive officials hold their L. The Civil Service
office by virtue of their designation thereto by
an appointing authority. Also, under the A. SCOPE
Administrative Code of 1987, appointive
officials, as officers and employees in the civil
service, are strictly prohibited from engaging Embraces all branches, subdivisions,
in any partisan political activity or take part in instrumentalities and agencies of the
any election except to vote. Elective officials, Government, including government-owned
by the very nature of their positions, may and controlled corporations with original
engage in partisan political activities. charters [Sec. 2(1), Art. IX-B, Constitution]

B. JURISDICTION OF THE CIVIL


SERVICE COMMISSION (CSC)

EXCLUSIVE JURISDICTION

(1) Disciplinary cases


(2) Cases involving “personnel action”
affecting the Civil Service employees:
(a) Appointment through
certification
(b) Promotion
(c) Transfer
(d) Reinstatement
(e) Reemployment
(f) Detail, reassignment
(g) Demotion
(h) Separation
(3) Employment status
(4) Qualification standards

N.B. As to the power of the CSC to review an


appointee’s qualifications. 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.
[Lapinid v. CSC (1991)]

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Limitations relationship [Civil Service Comm’n v. Javier


(2008)].
(1) It cannot order the replacement of
the appointee simply because it (iii) Highly Technical – requires possession of
considers another employee to be technical skill or training in a superior
better qualified. [Lapinid v. CSC degree. (e.g. City Legal Officer)
(1991)]
N.B. It is the nature of the position which
(2) The CSC cannot co-manage or be a determines whether a position is policy
surrogate administrator of determining, primarily confidential or highly
government offices and agencies. technical
(3) It cannot change the nature of the
appointment extended by the
(b) Non-career Service – Entrance on
appointing officer. [Luego v. CSC
bases other than those of the usual tests.
(1986)]
Tenure limited to a period specified by law or
which is coterminous with the appointing
authority or the duration of a particular
C. APPOINTMENTS TO THE CIVIL project. (i.e. elective officials, Department
SERVICE Heads and Members of Cabinet)

1. CLASSIFICATION OF POSITIONS IN THE


CIVIL SERVICE 2. RECALL OF APPOINTMENTS
Grounds [Admin. Code IRR, Rule VI, § 20; De
Rama v. CA (2001)]
(a) Career Service – characterized by (a)
entrance based on merit and fitness to be (1) Non-compliance with the
determined as far as practicable by procedures/criteria provided by the
competitive examinations, or based on highly agency’s Merit Promotion Plan
technical qualifications, (b) opportunity for (2) Failure to pass through the agency’s
advancement to higher career positions, and Selection/Promotion Board
(c) security of tenure.
(3) Violation of existing collective agreement
General Rule: Appointments to the Career between management and employees
Service is to be determined as far as relative to promotion
practicable by competitive examination.
(4) Violation of other existing civil service
Exceptions: Appointments to the following laws, rules and regulations
positions are exempt from the competitive
examination requirement N.B. The above grounds are available
despite initial approval by the CSC of the
(i) Policy determining - where the officer is appointment.
vested with the power of formulating
policies for the government or any of its
agencies, subdivisions, or DISTINGUISHED FROM RECALL UNDER
instrumentalities. THE LOCAL GOVERNMENT CODE
(ii) Primarily Confidential – the officer enjoys The CSC has the power to recall an
primarily such close intimacy with the appointment which has been initially
appointing authority which insures approved when it is shown that the same was
freedom intercourse without issued in disregard of pertinent CSC laws,
embarrassment or freedom of misgiving of rules and regulations. In contrast, recall
betrayal of personal trust on confidential under Sec 69-75 of the Local Government
matters of the state [De Los Santos v. Code is a mode of removal of a public official
Mallare (1950)]. The position characterized by the people before the end of his term of
by the close proximity of positions of the office. [Garcia v. COMELEC, (1993)]
appointee as well as the high degree of
trust and confidence inherent in their
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3. APPOINTMENTS NOT REQUIRING CSC D. PERSONNEL ACTIONS


APPROVAL
(1) Presidential appointments
1. PROMOTION
(a) Members of the AFP
(2) Police forces Promotion – movement from one position to
another with increase in duties and
(3) Firemen responsibilities as authorized by law and is
(4) Jail guards usually accompanied by an increase in pay.
(a) Next-in-rank Rule
4. LIMITATIONS ON POWER TO APPOINT The person next in rank shall be given
(1) Constitutional limitations preference in promotion when the position
(a) Prohibition on nepotic immediately above his is vacated.
appointments by the President
BUT the appointing authority still
(b) Midnight appointments ban exercises discretion and is not bound by
(c) Grant of power of appointment to this rule, although he is required to specify
officers and bodies other than the the “special reason or reasons” for not
President appointing the officer next-in-rank.
(d) Grant of exclusive power to (b) Automatic Reversion Rule
appoint officials and employees
of the judiciary to the SC All appointments involved in a chain of
(e) Recommendation of the JBC for promotions must be submitted
appointments to the SC and simultaneously for approval by the
lower courts Commission.
(f) Grant of exclusive power to The disapproval of the appointment of a
appoint officials and employees person proposed to a higher position
of the Constitutional invalidates the promotion of those in the
Commissions to the same lower positions and automatically restores
(g) One-year appointments ban for them to their former positions.
losing candidates However, the affected persons are entitled
(h) Non-appointment or designation to payment of salaries for services actually
of elective officials rendered at a rate fixed in their
(i) Prohibition on holding multiple promotional appointments. [Sec. 13 of the
offices for appointive officials Omnibus Rules Implementing
Administrative Code]
(j) Grant of exclusive power to
appoint officials and employees Requisites:
of the Ombudsman to the same (a) Series of promotions
(k) Recommendation of the JBC for
(b) All promotional appointments are
appointments of the Ombudsman
simultaneously submitted to the
and his deputies
Commission for approval
(2) Limitations found in statutes
(c) The Commission disapproves the
(3) Restrictions as developed under
appointment of a person to a higher
jurisprudence; e.g.
position.
(a) Appointing authority cannot
preempt appointing power of
successor [Aytona v. Castillo]
(b) Appointing authority cannot
appoint himself to a vacancy
(c) No appointment to a post which
is not vacant

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2. TRANSFER 4. DETAIL
Transfer – movement from one position to Detail – movement of an employee from one
another which is of equivalent rank, level or agency to another without the issuance of an
salary without break in service. appointment.
This may be imposed as an administrative Requisites for validity
remedy.
(1) Only for a limited period.
General Rule: If transfer is without consent, it
(2) Only for employees occupying
violates security of tenure.
professional, technical and scientific
Exceptions positions.
(1) Temporary Appointee (3) Temporary in nature.
(2) Career Executive Service Personnel whose
status and salaries are based on ranks, not on
5. REASSIGNMENT
position.
An employee may be reassigned from one
organizational unit to another in the SAME
3. REINSTATEMENT agency.
Reinstatement – technically the issuance of a It is a management prerogative of the CSC
new appointment and is discretionary on the and any department or agency embraced in
part of the appointing power. the Civil Service and does not constitute
removal without cause.
It cannot be the subject of an application for
a writ of mandamus. Requisites for validity
Requisites for validity (1) No reduction in rank, status or salary.
(1) Any permanent appointee of a career (2) The reassignment is from one
service position organizational unit to another in the
same agency.
(2) No commission of delinquency or
misconduct, and is not separated. (3) Should have a definite date or
duration (c.f. Detail). Otherwise, a
(3) The reinstatement is to a position in
floating assignment would be
the same level for which the officer is
tantamount to a diminution in status
qualified.
or rank.
Reinstatement has the same effect as
executive clemency, which completely
obliterates the adverse effects of the 6. REEMPLOYMENT
administrative decision which found him
Names of persons who have been appointed
guilty of dishonesty. He is restored ipso facto
permanently to positions in the career service
upon grant of such. Application for
and who have been separated as a result of
reinstatement = unnecessary.
reduction in force and/or reorganization,
shall be entered in a list from which selection
for reemployment shall be made.

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M. Accountability of No impeachment proceedings shall be


initiated against the same official more than
Public Officers once within a period of one year. [Sec. 3, Art.
XI, Constitution]
The term “to initate” refers to:
A. IMPEACHMENT (1) The filing of the impeachment
complaint, coupled with
Impeachment – method of national inquest (2) Congress’ taking initial action of said
into the conduct of public men. complaint (i.e. referral to the House
Committee on Justice) [Francisco v.
It is the power of Congress to remove a public House of Representatives (2003)].
official for serious crimes or misconduct as
provided in the Constitution [Corona v. Senate
(2012)]. 4. JUDGMENT
Purpose: To protect the people from official Judgment in cases of impeachment shall not
delinquencies or malfeasances. It is primarily extend further than removal from office and
intended for the protection of the State, not disqualification to hold any office under the
for the punishment of the offender. Republic of the Philippines, but the party
convicted shall nevertheless be liable and
subject to prosecution, trial, and punishment,
1. IMPEACHABLE OFFICERS according to law. [Sec. 3, Art. XI,
(1) President Constitution]
(2) Vice-President
(3) Members of the Supreme Court B. OMBUDSMAN
(4) Members of the Constitutional [AGPALO, 2005]
Commissions
(5) Ombudsman 1. FUNCTIONS
All other public officers and employees may Powers and Functions under RA 6770
be removed from office as provided by law,
but not by impeachment. (Sec. 2, Art. XI, (1) Investigate any act or omission of any
Constitution). public official, employee, office or
agency which appears to be illegal,
unjust, improper, or inefficient. This
2. GROUNDS FOR IMPEACHMENT may be done by the Ombudsman on
its own or upon complaint.
(1) Culpable violation of the Constitution
(2) Direct any public official or employee,
(2) Treason or any government subdivision,
(3) Bribery agency or instrumentality, as well as
of any government-owned or
(4) Graft and corruption
controlled corporation with original
(5) Other high crimes, or charter:
(6) Betrayal of public trust. (a) To perform and expedite any
act or duty required by law, or
(b) To stop, prevent, and correct
3. PROCEDURE
any abuse or impropriety in
The House of Representatives has the sole the performance of duties
power to initiate all cases of impeachment
(3) Direct the officer concerned:
while the Senate sits as a court for the trial of
impeachment cases.
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(a) To take appropriate action (11) Delegate to the Deputies, or its


against a public official or investigators or representatives such
employee at fault, and authority or duty as shall ensure the
effective exercise or performance of
(b) To recommend the latter’s
the powers, functions, and duties
removal, suspension,
herein or hereinafter provided;
demotion, fine, censure, or
prosecution, and (12) Investigate and initiate the proper
action for the recovery of ill-gotten
(c) To ensure compliance
and/or unexplained wealth amassed
therewith.
after February 25, 1986 and the
(4) Direct the officer concerned, in any prosecution of the parties involved
appropriate case, and subject to such therein (For Nos. 9-12, Sec. 15, RA
limitations as may be provided by law, 6770)
to furnish it with copies of documents
relating to contracts or transactions
entered into by his office involving the Administrative Jurisdiction
disbursement or use of public funds
General Rule: The Office of the Ombudsman
or properties. The Ombudsman can
has disciplinary authority over all elective and
also report any irregularity to the
appointive officials of the government and its
Commission on Audit for appropriate
subdivisions, instrumentalities and agencies,
action.
including Members of the Cabinet, local
(5) Request any government agency for government, government-owned or
assistance and information necessary controlled corporations and their subsidiaries.
in the discharge of its responsibilities, (Sec. 21, RA 6770)
and to examine, if necessary,
Exceptions: The Ombudsman has no
pertinent records and documents.
disciplinary power over the following (Sec. 21,
(6) Publicize matters covered by its RA 6770)
investigation when circumstances so
(1) Officials who may be removed only by
warrant and with due prudence.
impeachment
(7) Determine the causes of inefficiency,
(2) Members of Congress
red tape, mismanagement, fraud,
and corruption in the Government (3) Members of the Judiciary
and make recommendations for their
However, the Office of the Ombudsman has
elimination and the observance of
the power to investigate any serious
high standards of ethics and
misconduct in office committed by officials
efficiency.
removable by impeachment, for the purpose
(8) Promulgate its rules of procedure and of filing a verified complaint for impeachment,
exercise such other powers or if warranted. (Sec. 22, RA 6770)
perform such functions or duties as
N.B. The disciplinary power of the
may be provided by law (Sec. 13, Art.
Ombudsman is not exclusive but is shared
XI, Const.)
with other disciplinary authorities of the
(9) Administer oaths, issue subpoena government.
and subpoena duces tecum, and take
The disciplinary power of the Ombudsman
testimony in any investigation or
over elective officials is concurrent with the
inquiry, including the power to
power vested in the officials specified in the
examine and have access to bank
Local Government Code of 1991. [Hagad v.
accounts and records;
Dozo-Dadole, (1995)]
(10) Punish for contempt in accordance
with the Rules of Court and under the
same procedure and with the same
penalties provided therein;
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Preventive Suspension
The Ombudsman or his Deputy may 2. JUDICIAL REVIEW IN
preventively suspend any officer or employee ADMINISTRATIVE PROCEEDINGS
under his authority pending an investigation:
(1) If in his judgment the evidence of guilt is
strong, and Remedy: Petition for review under Rule 43 of
the Rules of Court with the Court of Appeals.
(2) Either of the following are present:
N.B. The second paragraph of Sec. 14, RA
(a) The charge against such officer or 6770, which states that “[n]o court shall hear
employee involves dishonesty, any appeal or application for remedy against
oppression or grave misconduct or the decision or findings of the Ombudsman,
neglect in the performance of duty; except the Supreme Court, on pure question of
(b) The charges would warrant removal law,” is unconstitutional. Effectively, Congress
from the service; or increased the appellate jurisdiction of the
Supreme Court without its advice and
(c) The respondent's continued stay in concurrence. By confining the remedy to a
office may prejudice the case filed Rule 45 appeal, the provision takes away the
against him. [Sec. 24, RA 6770] remedy of certiorari, grounded on errors of
The preventive suspension shall continue jurisdiction, in denigration of the judicial
until the case is terminated by the Office of power constitutionally vested in courts
the Ombudsman but not more than six (6) [Carpio-Morales v. Court of Appeals, G.R. No.
months, without pay, except when the delay 217126-27 (2015)].
in the disposition of the case by the Office of Decisions or resolutions of the Ombudsman
the Ombudsman is due to the fault, in administrative cases absolving the
negligence or petition of the respondent, in respondent of the charge or imposing upon
which case the period of such delay shall not him the penalty of public censure or
be counted in computing the period of reprimand, suspension of not more than one
suspension herein provided. (Sec. 24, RA month, or a fine equivalent to one month
6770) salary, is final and unappealable. (Agpalo,
Prior notice and hearing is not required 2005)
before suspension may be meted out.
Suspension is not a punishment or penalty
but only a preventive measure to prevent the 3. JUDICIAL REVIEW IN PENAL
respondent from using his position or office PROCEEDINGS
to influence or intimidate prospective
witnesses or tamper with the records which
may be vital in the prosecution of the case General Rule: Courts cannot review the
against them. exercise of discretion of the Ombudsman in
prosecuting or dismissing a criminal
complaint filed before it [Loquias v.
Criminal Jurisdiction Ombudsman, G.R. No. 139396 (2000)].
The Ombudsman exerises primary jurisdiction Exception: When the Ombudsman’s findings
to investigate any act or omission of the are tainted with grave abuse of discretion.
public officer in criminal cases cognizable by In all other cases, the decision shall become
the Sandiganbayan final after the expiration of 10 days from
It has concurrent jurisdiction owith other receipt thereof by the respondent, unless a
investigative agencies with respect to motion for reconsideration or a petition for
criminal cases involving public officers review is filed with the CA pursuant to Rule
cognizable by regular courts [Office of the 43 of the Rules of Court. (Agpalo, 2005)
Ombudsman v. Rodriguez, G.R. No. 172700 See Carpio-Morales v. Court of Appeals
(2010)]. (2015), supra.
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C. SANDIGANBAYAN commission of the offense charged in


order to qualify the crime as having
been committed in relation to public
1. NATURE AND COMPOSITION office. The relation between the crime
and the office must be direct and not
The Sandiganbayan is created under PD 1606
accidental, that is, the relation has to
as amended by RA 8249. It is a special court,
be such that, in the legal sense, the
of the same level as the Court of Appeals and
offense cannot exist without the office.
possessing all the inherent powers of a court
of justice.
It is composed of a presiding justice and 3. OFFICIALS AND PRIVATE INDIVIDUALS
fourteen associate justices who shall be SUBJECT TO ITS JURISDICTION
appointed by the President. Under Section 4(a, b) of PD No. 1606, as
amended, the Sandiganbayan shall exercise
exclusive original jurisdiction over the cases
2. EXCLUSIVE ORIGINAL JURISDICTION
mentioned in (1) above where one or more of
(1) Over the following crimes, when the accused are officials occupying the
committed by public officials and following positions in the government,
employees classified as Salary whether in a permanent, acting or interim
Grade 27 or higher: capacity at the time of the commission of the
offense:
(a) Violations of R.A. No. 3019 and
No. 1379; (1) Officials of the executive branch
occupying the positions of regional
(b) Crimes committed by public
director and higher, otherwise
officers and employees embraced
classified as Grade '27' and higher, of
in Chapter II, Sec. 2, Title VII,
the Compensation and Position
Book II of the Revised Penal
Classification Act of 1989 (R.A. No.
Code;
6758), specifically including:
(c) Other offenses or felonies,
(a) Provincial governors, vice-
whether simple or complexed
governors, members of the
with other crimes, committed in
sangguniang panlalawigan,
relation to their office.
and provincial treasurers,
(2) Civil and criminal cases filed assessors, engineers, and other
pursuant to and in connection with provincial department heads;
Executive Orders No. 1,2, 14, and 14-
(b) City mayors, vice-mayors,
a issued in 1986
members of the sangguniang
In the absence of any allegation that panlungsod, city treasurers,
the offense charged was necessarily assessors, engineers, and other
connected with the discharge of the city department heads;
duties or functions of a public officer,
(c) Officials of the diplomatic
the ordinary court, not the
service occupying the position
Sandiganbayan, has jurisdiction to
of consul and higher;
hear and decide the case.
(d) Philippine army and air force
What is controlling is not whether the
colonels, naval captains, and
phrase "committed in relation to
all officers of higher rank;
public office" appears in the
Information. What determines the (e) Officers of the Philippine
jurisdiction of the Sandiganbayan is National Police while occupying
the specific factual allegation in the the position of provincial
Information that would indicate close director and those holding the
intimacy between the discharge of rank of senior superintendent or
the accused's official duties and the higher;
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(f) City and provincial prosecutors D. ILL-GOTTEN WEALTH


and their assistants, and
officials and prosecutors in the
Office of the Ombudsman and Ill-gotten wealth – any asset, property,
special prosecutor; business enterprise or material possession of
(2) Presidents, directors or trustees, or any person acquired by himself directly or
managers of government-owned or indirectly through dummies, nominees,
controlled corporations, state agents, subordinates and/or business
universities or educational associates by any combination or series of the
institutions or foundations; following means or similar schemes:

(3) Members of Congress and officials (1) Through misappropriation,


thereof classified as Grade "27" and conversion, misuse, or malversation
up under the Compensation and of public funds or raids on the public
Position Classification Act of 1989; treasury;

(4) Members of the judiciary without (2) By receiving, directly or indirectly, any
prejudice to the provisions of the commission, gift, share, percentage,
Constitution; kickbacks or any other form of
pecuniary benefit from any person
(5) Chairpersons and members of and/or entity in connection with any
Constitutional Commissions, without government contract or project or by
prejudice to the provisions of the reason of the office or position of the
Constitution; and public officer concerned;
(6) All other national and local officials (3) By the illegal or fraudulent
classified as Grade "27" and higher conveyance or disposition of assets
under the Compensation and Position belonging to the National
Classificafion Act of 1989. Government or any of its subdivisions,
In case private individuals are charged as co- agencies or instrumentalities or
principals, accomplices or accessories with government-owned or controlled
the public officers or employees, including corporations and their subsidiaries,
those employed in government-owned or - (4) By obtaining, receiving or accepting
controlled corporations, they shall be tried directly or indirectly any shares of
jointly with said public officers and stock, equity or any other form of
employees in the proper courts which shall interest or participation including the
exercise exclusive jurisdiction over them. promise of future employment in any
business enterprise or undertaking;

4. EXCLUSIVE APPELLATE JURISDICTION (5) By establishing agricultural,


industrial or commercial monopolies
The Sandiganbayan shall exercise exclusive or other combinations and/or
appellate jurisdiction over final judgments, implementation of decrees and
resolutions or orders of regional trial courts orders intended to benefit particular
whether in the exercise of their own original persons or special interests, or
jurisdiction or of their appellate jurisdiction.
(6) By taking undue advantage of official
position, authority, relationship,
5. APPELLATE JURISDICTION OF THE connection or influence to unjustly
SUPREME COURT enrich himself or themselves at the
expense and to the damage and
The appellate juridisction of the Supreme prejudice of the Filipino people and
Court is limited to questions of law over the Republic of the Philippines. (Sec. 1,
decisions and final orders of the RA 7080).
Sandiganbayan [Republic v. Sandiganbayan
(2002)].

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Recovery of Ill-gotten Wealth


N. Term Limits
The right of the State to recover properties
unlawfully acquired by public officials or
employees, from them or from their nominees See Local Government reviewer, supra, for the
or transferees, shall not be barred by rules on term limits summarized in Abundo v.
prescription, laches or estoppel [Sec. 15, Art. COMELEC.
XI, Constitution]
N.B. This provision applies only to civil
actions for recovery of ill-gotten wealth and A. ALL ELECTIVE LOCAL OFFICIALS,
not to criminal cases. Thus, prosecution of EXCEPT BARANGAY OFFICIALS [Sec. 8, Art.
offenses arising from, relating or incident to, X, Constitution; Sec. 43 LGC]
or involving ill-gotten wealth in the said Term of office: 3 years from noon of June 30,
provision may be barred by prescription 1992 or the date provided by law
[Presidential Ad-hoc Fact Finding Committee
on Behest Loans v. Desierto (1999)] All local officials first elected during the local
elections immediately following the
ratification of the 1987 Constitution shall
Plunder [Sec. 2, RA 7080] serve until noon of June 30, 1992;
Punishable Acts (1) No official shall serve for more than 3
consecutive terms for the same
(1) Any public officer who, by himself or position;
in connivance with members of his
family, relatives by affinity or (2) Voluntary renunciation of the office
consanguinity, business associates, for any length of time is not an
subordinates or other person, interruption in the continuity of his
amasses, accumulates or acquires ill- service for the full term for which he
gotten wealth through a combination was elected
or series of overt or criminal acts in
the aggregate amount or total value
of at least P75,000,000.00 B. BARANGAY AND SANGGUNIANG
KABATAAN OFFICIALS [Sec. 2, RA 9164]
(2) Any person who participated with the
said officer in the commission of Term of office: 3 years
plunder shall likewise be punished. No barangay elective official shall serve for
more than 3 consecutive terms in the same
position
Penalty
(1) Reckoned from the 1994 barangay
Life imprisonment with perpetual absolute elections
disqualification from holding any public office.
The court shall declare any and all ill-gotten (2) Voluntary renunciation of office for
wealth and their interests and other incomes any length of time shall not be
and assets including the properties and considered as an interruption
shares of stocks derived from the deposit or
investment thereof forfeited in favor of the
State. [AGPALO]

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