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Hold-Over Officer (De Facto Officer)

one who continues with the discharge of the functions of an office after the expiration of his or her
legal term and no successor having, in the meantime, been appointed or chosen.

Related Reference(s)

 Seneres vs. COMELEC and Robles


G.R. No. 178678 | 2009-04-16

Modes of Termination of Official Relations

1. Expiration of term or tenure


2. Retirement
3. Death or permanent disability
4. Resignation
5. Acceptance of an incompatible or prohibited office
6. Abandonment of office
7. Prescription of right to office
8. Removal
9. Impeachment
10. Abolition of office
11. Conviction of a crime
12. Recall

Expiration of term or tenure

Term – the time during which the officer may claim the right to hold office
Tenure – the period during which the incumbent actually holds office

The term of office is fixed by law. [Nueno v. Angeles, G.R. No. L-89, February 1,
1946]

The tenure of officials holding primarily confidential positions ends upon loss of
confidence because their term of office lasts only as long as confidence in them
endures. [Cadiente v. Santos, G.R. No. L-35592, June 11, 1986]

When the term of office is fixed by the Constitution, Congress cannot abridge or extend
the time so provided. However, when Congress creates a public office, it has to power
to modify the term of such office.

“Hold-over” means that the officer’s term has expired but he should continue holding
his office until his successor is appointed or chosen and qualified.

Retirement

When a public officer reaches the age limit (e.g. for members of the Supreme Court,
the retiring age is 70 years), it results in his/her compulsory and automatic retirement.

Death or permanent disability

Death and permanent disability also terminates official relations. On one hand, all rights
and obligations of the public officer are extinguished upon death. On the other hand,
permanent disability covers both physical and mental disability. A judicial determination
of the fact of disability is necessary to make any determination conclusive.
Resignation

“Resignation” is the formal renunciation or relinquishment of a public office. It implies


an expression by the incumbent in some form, express or implied, of the intention to
surrender, renounce, and relinquish his right to the office and its acceptance by
competent and lawful authority.

Resignation implies an expression of the incumbent in some form, express or implied,


of the intention to surrender, renounce, and relinquish the office and the acceptance by
competent and lawful authority. To constitute a complete and operative resignation
from public office, there must be:
(a) an intention to relinquish a part of the term;
(b) an act of relinquishment; and
(c) an acceptance by the proper authority. [Republic v. Singun, G.R. No. 149356,
March 14, 2008]

A public officer has the right to resign. One who gains an elective or appointive office is
not legally committed to finish the term. The right to resign, however, is not
unqualified. An office cannot be laid down without the consent of the appointing power
where the public policy requires that the right shall be declared in a much more
restricted manner.

Without the acceptance by the proper authority, the tender or offer to resign is
revocable unless otherwise provided. The resignation is not complete and the officer
remains in office. Acceptance may be in the form of a formal declaration, or the
appointment of another to the same office. [Agra/Arriola, sipra]

Acceptance of incompatible or prohibited office

Offices are incompatible with each other when—


a. There is conflict in the duties and functions of the offices;
b. One is subordinate to the other and is subject to its supervisory power; or
c. The Constitution or the law itself declares the incompatibility.

If the office accepts another office incompatible with the first, he ipso facto vacates the
first office. When the law or Constitution prohibits the officer from accepting another
office other than that which he holds, he does not forfeit his original office. the second
appointment is void.

Two essential elements of abandonment:

1. An intention to abandon
2. An overt or “external” act by which the intention is carried into effect. [Canonizado
v. Aguirre, G.R. No. 133132, February 15, 2001]

In order to constitute an abandonment of office, the same must be total and absolute,
and must be under such circumstances as clearly to indicate an absolute relinquishment
thereof. Abandonment cannot be lightly inferred or legally presumed from certain
equivocal acts.

Prescription of right to office

A person who claims the right to hold an office occupied by another may file a quo
warranto action. This prescribed, however, 1 year after his removal or separation from
the office. Petitioner must prove that he is entitled to the position which he alleges the
respondent usurps or unlawfully holds.

Removal

“Removal” entails the ouster of an incumbent before the expiration of his term. It
implies that the office exists after the ouster. The term is synonymous to “dismissal”.
What can constitute removal:

1. Appointment of another officer


2. Transfer to another office
3. Demotion
4. Reassignment
5. Constructive dismissal

The power to remove may be:

1. Absolute—when the appointing officer is vested with unlimited discretion, and


removal may be for reasons the appointing officer may deem sufficient
2. Condition—when the time, manner or reason of removal is beyond the discretion of
the appointing officer

Impeachment

The following are public officers removable by impeachment:

1. President
2. Vice-president
3. Members of the Supreme Court
4. Members of the Constitutional Commissions
5. Ombudsman [1987 Constitution, Art. XI, Sec. 2]

The offenses covered by impeachment are:

1. Culpable violation of the Constitution


2. Treason
3. Bribery
4. Graft and corruption
5. Other high crimes
6. Betrayal of public trust [1987 Constitution, Art. XI, Sec. 2]

Penalties for impeachment:

1. Removal from office


2. Disqualification to hold any office under the Republic of the Philippines
3. Subjection and liability for criminal prosecution, trial and punishment

The House or Representatives has the sole power to initiate all cases of impeachment
while the Senate sits as a court for the trial of impeachment cases. [1987
Constitution, Art. XI, Sec. 3]

Abolition of Office

Who may abolish an office

1. Congress may abolish any office it creates without infringing upon the rights of the
officer or employee concerned
2. The President pursuant to a valid delegation of power
3. Local governments when said power has been delegated to them
4. By the people themselves when they amend the Constitution
To consider an office abolished, there must have been intention to do away with it
wholly and permanently. There is no abolition where the position is the same one but
bearing a different name.

If the abolition is void because it was done in bad faith, the incumbent is deemed never
to have ceased to hold office. Thus, for there to be a valid abolition, it must be done—

1. In good faith
2. Not for personal or political reasons or in order to circumvent the incumbent’s
security of tenure
3. Not implemented in violation of laws

Conviction of a crime

When the conviction of a crime carried with it the penalties of temporary or perpetual
absolute or special disqualification, termination of official relations results because one
of the effects of the imposition of said penalties under Articles 30 and 31 of the Revised
Penal Code is the deprivation of public office or employment which the offender may
have held.

Pardon does not ipso facto restore a convicted felon to public office necessarily
relinquished or forfeited. It merely removes the disqualification from holding public
employment.

Recall

Recall is the procedure by which an elective official may be removed at any time during
his term by the vote of the people at an election called for such purpose or at a general
election.

The power to recall for loss of confidence shall be exercised by the registered voters of
a local government unit to which the local elective official subject to such recall belongs.

Recall may be initiated by a preparatory recall assembly or by 25% of the registered


voters of the local government unit to which the local elective official subject of the
recall belongs.

A written petition for recall must be duly signed before the election registrar or his
representative.

COMELEC shall set the date of the election after the filing of resolution or petition not
later than:

 30 days in the case of barangay, city or municipal officials


 45 days in the case of provincial officials

The recall of an elective local official shall be effective only upon the election and
proclamation of a successor who garners the highest number of votes during the
election on recall. If the official sought to be recalled wins, he shall continue in office.

Any elective local official may be the subject of a recall election only once during his
term of office for loss of confidence. No recall shall be held within 1 year from the date
of the official’s assumption of office or 1 year immediately preceding a regular local
election.

Related Reference(s)

 Nueno vs. Angeles [DECISION]


G.R. No. L-89 | 1946-02-01
 Nueno vs. Angeles [SEPARATE OPINION, CONCURRING, PERFECTO, J.]
G.R. No. L-89 | 1946-02-01
 Cadiente vs. Luis T. Santos, et al., 142 SCRA 280
G.R. No. L-35592 | 1986-06-11
 Canonizado vs. Aguirre
G.R. No. 133132 | 2000-01-25
 Canonizado, Dula Torres & Pureza vs Hon. Aguirre, et al. (EN BANC RESOLUTION)
G.R. No. 133132 | 2001-02-15
 Republic vs. Singun
G.R. No. 149356 | 2008-03-14
 Nueno vs. Angeles [SEPARATE OPINION, DISSENTING, HILADO, J.]
G.R. No. L-89 | 1946-02-01

Political Law; Law On Public Officers; Accountability Of Public Officers; Ombudsman


The Office of the Ombudsman is composed of:

1. The Ombudsman
2. One overall deputy
3. One deputy each for Luzon, Visayas and Mindanao [1987 Constitution, Art. XI,
Sec. 5]

The Ombudsman and his Deputies shall be natural-born citizens of the Philippines, and
at the time of their appointment, at least forty years old, of recognized probity and
independence, and members of the Philippine Bar, and must not have been candidates
for any elective office in the immediately preceding election. The Ombudsman must
have, for ten years or more, been a judge or engaged in the practice of law in the
Philippines.

During their tenure, they shall be subject to the same disqualifications and prohibitions
as provided for in Section 2 of Article IX-A of this Constitution. [1987 Constitution,
Art. XI, Sec. 8]

Section 9. The Ombudsman and his Deputies shall be appointed by the President from a
list of at least six nominees prepared by the Judicial and Bar Council, and from a list of
three nominees for every vacancy thereafter. Such appointments shall require no
confirmation. All vacancies shall be filled within three months after they occur. [1987
Constitution, Art. XI, Sec. 9]

The Ombudsman and his Deputies shall have the rank of Chairman and Members,
respectively, of the Constitutional Commissions, and they shall receive the same salary
which shall not be decreased during their term of office. [1987 Constitution, Art. XI,
Sec. 10]

The Ombudsman and his Deputies shall serve for a term of seven years without
reappointment. They shall not be qualified to run for any office in the election
immediately succeeding their cessation from office. [1987 Constitution, Art. XI, Sec.
11]

The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the
Government, or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations, and shall, in appropriate cases, notify
the complainants of the action taken and the result thereof. [1987 Constitution, Art.
XI, Sec. 12]
The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual
appropriations shall be automatically and regularly released.[1987 Constitution, Art.
XI, Sec. 14]

Powers, functions and duties of the Office of the Ombudsman

The Office of the Ombudsman shall have the following powers, functions, and duties:

1. Investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient.
2. Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any
government-owned or controlled corporation with original charter, to perform and
expedite any act or duty required by law, or to stop, prevent, and correct any abuse
or impropriety in the performance of duties.
3. Direct the officer concerned to take appropriate action against a public official or
employee at fault, and recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance therewith.
4. Direct the officer concerned, in any appropriate case, and subject to such limitations
as may be provided by law, to furnish it with copies of documents relating to
contracts or transactions entered into by his office involving the disbursement or
use of public funds or properties, and report any irregularity to the Commission on
Audit for appropriate action.
5. Request any government agency for assistance and information necessary in the
discharge of its responsibilities, and to examine, if necessary, pertinent records and
documents.
6. Publicize matters covered by its investigation when circumstances so warrant and
with due prudence, provided, that the Ombudsman under its rules and regulations
may determine what cases may not be made public: provided, further, that any
publicity issued by the Ombudsman shall be balanced, fair and true
7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and
corruption in the Government, and make recommendations for their elimination and
the observance of high standards of ethics and efficiency;
8. Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in
any investigation or inquiry, including the power to examine and have access to
bank accounts and records;
9. Punish for contempt in accordance with the Rules of Court and under the same
procedure and with the same penalties provided therein;
10. Delegate to the Deputies, or its investigators or representatives such authority or
duty as shall ensure the effective exercise or performance of the powers, functions,
and duties herein or hereinafter provided;
11. Investigate and initiate the proper action for the recovery of ill-gotten and/or
unexplained wealth amassed after February 25, 1986 and the prosecution of the
parties involved therein.
12. Determine the causes of inefficiency, red tape, mismanagement, fraud, and
corruption in the Government and make recommendations for their elimination and
the observance of high standards of ethics and efficiency.
13. Promulgate its rules of procedure and exercise such other powers or perform such
functions or duties as may be provided by law. [1987 Constitution, Art. XI, Sec.
13; R.A. 6770, Sec. 15]

 Investigatory power—The Office of the Ombudsman shall have the power to


investigate any serious misconduct in office allegedly committed by officials
removable by impeachment, for the purpose of filing a verified complaint for
impeachment, if warranted. In all cases of conspiracy between an officer or
employee of the government and a private person, the Ombudsman and his
Deputies shall have jurisdiction to include such private person in the investigation
and proceed against such private person as the evidence may warrant. The officer
or employee and the private person shall be tried jointly and shall be subject to the
same penalties and liabilities. [R.A. 6770, Sec. 22]
 Preventive suspension—The Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority pending an investigation, if in
his judgment the evidence of guilt is strong, and (a) the charge against such officer
or employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the service; or
(c) the respondent's continued stay in office may prejudice the case filed against
him. [R.A. 6770, Sec. 24]

Qualifications of the Ombudsman and Deputies

1. Natural born citizen of the Philippines


2. At the time of appointment, at least 40 years old
3. Of recognized probity and independence
4. Member of the Philippine Bar
5. Must not have been a candidate for any elective office in the immediately preceding
election
6. (for the Ombudsman) Must have, for ten years or more, been a judge or engaged in
the practice of law in the Philippines. [1987 Constitution, Article XI, Sec. 8]

Appointment

The Ombudsman and his Deputies shall be appointed by the President from a list of at
least six nominees prepared by the Judicial and Bar Council, and from a list of three
nominees for every vacancy thereafter. Such appointments shall require no
confirmation. All vacancies shall be filled within three months after they occur. [1987
Constitution, Article XI, Sec. 9]

Judicial Review

1. Administrative proceedings:
o Appeals from the resolution of the Ombudsman on administrative cases: Court
of Appeals via Rule 43 of the Rules of Court
2. Penal proceedings
o Appeals from the resolution of the Ombudsman [on non-administrative cases]:
Supreme Court via Rule 65 (abuse of discretion)

Political Law; Law On Public Officers; Eligibility And Qualification


Requirements
Definitions

 Eligibility refers to state or quality of being legally fitted or qualified to be chosen.


Eligibility to a public office is of a continuing nature and must exist both at the
commencement and during the occupancy of an office[Aguila v. Genato, G.R. No.
L-55151, March 17, 1981]
 Qualification refers to either endowment or accomplishment that fits one for office,
or to the act which the person is legally required to do before entering upon the
performance of his duties.

Authority to Prescribe Qualifications

The authority to prescribe qualifications depends on whether the public office was
created by the Constitution or by Congress

1. If created by the Constitution – The criteria imposed by the Constitution


is exclusive and the Congress has no power to require different or additional
qualifications, unless granted to it by the Constitution
2. If created by Congress – The Congress has plenary power to specify the
qualifications and disqualifications, as long as these are (1) germane to the
objectives for which the office was created, and (2) the qualifications are not too
specific as to fit a particular identifiable person that would deprive the appointing
authority of discretion in the selection of the appointee

Authority to Prescribe Disqualifications

Congress may prescribe disqualifications in the same manner as it can prescribe


qualifications, as long as the Constitution is not violated. Congress cannot remove a
disqualification that the Constitution has attached to a position.

The Congress cannot also add to the list of disqualifications in the Constitution without
any Constitutional authority. [Vargas v. Rilloraza, G.R. No. L-1612, February 26,
1984]

The qualifications prescribed for elective office cannot be erased by the electorate
alone. The will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed, as in this case, that the candidate
was qualified. [Frivaldo v. Comelec, G.R. No. 87193, June 23, 1989]

Presumption in Favour of Eligibility

There is a strong public policy that exists in favour of eligibility. Thus, the right to hold
public office is strictly construed against ineligibility.

When to Possess Qualifications

The qualifications must be possessed by the candidate or appointee at the time


specified by the Constitution or by the law. However, eligibility is of a continuing nature
and must exist during the occupancy of the office. [Aguila v. Genato, G.R. No. L-
55151, March 17, 1981]

General Disqualifications under the Constitution

No candidate who has lost in any election shall, within one year after such election, be
appointed to any office in the Government or any Government-owned or controlled
corporations or in any of their subsidiaries. [1987 Constitution, Art. IX-B, Sec. 6]

No elective official shall be eligible for appointment or designation in any capacity to


any public office or position during his tenure. [1987 Constitution, Art. IX-B, Sec. 7]

Unless otherwise allowed by law or by the primary functions of his position, no


appointive official shall hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including Government-owned or
controlled corporations or their subsidiaries. [1987 Constitution, Art. IX-B, Sec. 7]

Specific Disqualifications under the Constitution


 President, Vice President, Cabinet Members and their deputies and assistants
o Shall not hold any other office or employment during their tenure, unless
otherwise provided in the Constitution.
 Senator or Member of the House of Representatives
o May not hold any other office or employment in the Government, including
GOCC, during his term without forfeiting his seat. Neither shall he be appointed
to any office which may have been created or the emoluments increased during
the term for which he was elected.
 Members of the Supreme Court and of other courts established by law
o Shall not be designated to any agency performing quasi-judicial or
administrative functions.
 Member of a Constitutional Commission
o May not, during his tenure, hold any other office or employment and must not
have been candidates for any elective position in the election immediately
preceding their appointments.
 Ombudsman and his deputies
o May not, during his tenure, hold any other office or employment. He shall
likewise not be qualified to run for office in the election immediately succeeding
their cessation, and must not have been candidates for any elective position in
the election immediately preceding their appointments.
 Spouse and relatives by consanguinity or affinity within the 4th civil degree of the
President shall not during his tenure be appointed as:
o members of the Constitutional Commission
o Office of Ombudsman
o Secretaries
o Undersecretaries
o Chairmen/heads

Related Reference(s)

 Vargas vs. Rilloraza 80 Phil 297


G.R. No. L-1612 | 1948-02-26
 Vargas vs. Rilloraza 80 Phil 297 [CONCURRING OPINION]
G.R. No. L-1612 | 1948-02-26
 Vargas vs. Rilloraza 80 Phil 297 [DISSENTING OPINION, FERIA, J.]
G.R. No. L-1612 | 1948-02-26
 David Aguila, et al. vs. Melencio A. Genato
G.R. No. L-55151 | 1981-03-17
 Frivaldo vs. COMELEC 174 SCRA 245
G.R. No. 87193 | 1989-06-22

Political Law; Law On Public Officers; Rights Of Public Officials


Basic Rights of Public Officials

1. Right to Office
2. Right to Salary
3. Right to Preference in Promotion
4. Right to Vacation and Sick Leave
5. Right to Maternity Leave
6. Right to Retirement Pay
7. Right to reimbursement for expenses incurred in due performance of duty
8. Right to be indemnified against any liability
9. Right to Longevity Pay

Right to Office

Public officers have a just and legal claim to exercise the powers and responsibilities of
public office.

Right to Salary

Compensation is paid for doing all that may be required whether it is in the form of a
fixed salary or wages, per diems, fees, commissions, or perquisites of whatever
character.

Salary is the personal compensation to be paid to the public officer for his services. It is
generally a fixed annual or periodical payment. It differs from wage which is paid to
officers lesser in rank and paid per day of the week.

Public officers are also allowed a per diem, which is a daily allowance for miscellaneous
expenses. It is not deemed as a salary.

Emoluments refer to the profits arising from the office, and that which is received as
compensation for services or which is annexed to the office as salary or fees, and
includes those which, by law, the officer is entitled to receive.
However, compensation is not indispensable to public office, but is merely an incident
thereto. It attaches to the office, and not the officer. Thus, where the law does not fix
compensation, it is presumed that the public officer accepted the position
gratuitously. [Acosta v. CA, G.R. No. 132088, June 28, 2000]

The amount of salary to be received by the public officer depends on his “grade.” It is
the law that fixes the salary grade of the public officer.[Binay v. Sandiganbayan,
G.R. No. 120681-83, October 1, 1999]If the position occupied by the public officer
is an ex officio position, then he has no right to receive additional compensation, as his
services are already covered by the compensation attached to the principal
office.[Bitonio v. Commission on Audit, G.R. No. 147392, March 12, 2004]

The salary of a public officer may not be subject of garnishment, attachment, or order
of execution, nor be seized before being paid to him, and appropriated for the payment
of his debts. [Director of Commerce and Industry v. Concepcion, G.R. No. L-
19031, May 22, 1922]

The following agreements concerning a public officer’s compensation are invalid:

1. Agreement to accept, or acceptance of less or other than legal compensation


2. Sale, assignment, or barter of said compensation
3. Dividing compensation with others if it amounts to an anticipatory agreement

Prohibitions against Diminution of Salary

The general rule is that Congress has the power to fix or alter the compensation of a
public officer, except as provided for in the Constitution:

The salaries of the President and Vice-President shall be determined by law and shall
not be decreased during their tenure. No increase in said compensation shall take effect
until after the expiration of the term of the incumbent during which such increase was
approved. They shall not receive during their tenure another emolument from the
Government or any other source. [1987 Constitution, Art. VII, Sec. 6]
The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and
of judges of lower courts shall be fixed by law. During their continuance in office, their
salary shall not be decreased.[1987 Constitution, Art. VIII, Sec. 10]

The salary of the Chairman and the Commissioners shall be fixed by law and shall not
be decreased during their tenure. [1987 Constitution, Art. IX-A, Sec. 3]

The Ombudsman and his Deputies shall have the rank of Chairman and Members,
respectively, of the Constitutional Commissions, and they shall receive the same salary,
which shall not be decreased during their term of office. [1987 Constitution, Art. XI,
Sec. 10]

Right to Preference in Promotion

The “next-in-rank” rule applies only in cases of promotion. No vested right is granted to
the holder of a position but is given only a preferential consideration for promotion to a
vacant position.

There is "no mandatory nor peremptory requirement in the (Civil Service Law) that
persons next-in-rank are entitled to preference in appointment. What it does provide is
that they would be among the first to be considered for the vacancy, if qualified, and if
the vacancy is not filled by promotion, the same shall be filled by transfer or other
modes of appointment." [Santiago v. CSC, G.R. No. 81467, October 27, 1989]

To apply the next-in-rank rule peremptorily would impose a rigid formula on the
appointing power contrary to the policy of the law that among those qualified and
eligible, the appointing authority is granted discretion and prerogative of choice of the
one he deems fit for appointment.[Pineda v. Claudio, G.R. No. L-29661, May 13,
1969]

Automatic reversion rule: All appointments involved in a chain of promotions must be


submitted simultaneously for approval by the Commission. The disapproval of the
appointment of a person proposed to a higher position invalidates the promotion of
those in the lower positions and automatically restores them to their former positions.
Affected persons are entitled to payment of salaries for services rendered at a rate fixed
in their promotional appointments.

Right to Retirement Pay

Government employees covered by the Government Service Insurance Act are entitled
to retirement benefits, provided that the employee is a member of the GSIS who—

 Has at least 15 years of service


 Is at least 60 years of age
 Is not receiving a monthly pension benefit from permanent total disability

Retirement is compulsory at age 65, with at least 15 years of service.[P.D. 1146,


Section 11]

Other Benefits

Other benefits available to a government employee include:

1. Separation benefits
2. Unemployment or involuntary separation benefits
3. Disability benefits
4. Survivorship benefits
5. Funeral benefits
6. Life insurance benefits
7. Pensions

Right to Reimbursement

When a public officer, in the due performance of his duties, has been expressly or
impliedly required by law to incur expenses on the public account, not covered by his
salary or commission and not attributable to his own neglect or default, the reasonable
and proper amount thereof forms a legitimate charge against the public for which he
should be reimbursed.

Related Reference(s)

 Pineda vs. Claudio


G.R. No. L-29661 | 1969-05-13
 Narciso Y. Santiago vs. Civil Service Comm. Etal.
G.R. No. 81467 | 1989-10-27
 Jejomar Binay vs Sandiganbayan and DILG 316 SCRA 65
G.R. Nos. 120681-83 | 1999-10-01
 Jejomar Binay vs Sandiganbayan and DILG [SEPARATE OPINION, PANGANIBAN, J.]
G.R. Nos. 120681-83 | 1999-10-01
 Acosta, Amparado, et al vs CA, CSC, Secretary of DECS
G.R. No. 132088 | 2000-06-28
 Benedicto Bitonio vs COA & Chairman Celso Gangan
G.R. No. 147392 | 2004-03-12
 Benedicto Ernesto Bitonio, Jr. vs COA and Celso Gangan, et al
G.R. No. 147392 | 2004-03-12

Political Law; Law On Public Officers; Rights Of Public Officials

Basic Rights of Public Officials

1. Right to Office
2. Right to Salary
3. Right to Preference in Promotion
4. Right to Vacation and Sick Leave
5. Right to Maternity Leave
6. Right to Retirement Pay
7. Right to reimbursement for expenses incurred in due performance of duty
8. Right to be indemnified against any liability
9. Right to Longevity Pay

Right to Office

Public officers have a just and legal claim to exercise the powers and responsibilities of
public office.

Right to Salary

Compensation is paid for doing all that may be required whether it is in the form of a
fixed salary or wages, per diems, fees, commissions, or perquisites of whatever
character.

Salary is the personal compensation to be paid to the public officer for his services. It is
generally a fixed annual or periodical payment. It differs from wage which is paid to
officers lesser in rank and paid per day of the week.

Public officers are also allowed a per diem, which is a daily allowance for miscellaneous
expenses. It is not deemed as a salary.

Emoluments refer to the profits arising from the office, and that which is received as
compensation for services or which is annexed to the office as salary or fees, and
includes those which, by law, the officer is entitled to receive.
However, compensation is not indispensable to public office, but is merely an incident
thereto. It attaches to the office, and not the officer. Thus, where the law does not fix
compensation, it is presumed that the public officer accepted the position
gratuitously. [Acosta v. CA, G.R. No. 132088, June 28, 2000]

The amount of salary to be received by the public officer depends on his “grade.” It is
the law that fixes the salary grade of the public officer.[Binay v. Sandiganbayan,
G.R. No. 120681-83, October 1, 1999]If the position occupied by the public officer
is an ex officio position, then he has no right to receive additional compensation, as his
services are already covered by the compensation attached to the principal
office.[Bitonio v. Commission on Audit, G.R. No. 147392, March 12, 2004]

The salary of a public officer may not be subject of garnishment, attachment, or order
of execution, nor be seized before being paid to him, and appropriated for the payment
of his debts. [Director of Commerce and Industry v. Concepcion, G.R. No. L-
19031, May 22, 1922]

The following agreements concerning a public officer’s compensation are invalid:

1. Agreement to accept, or acceptance of less or other than legal compensation


2. Sale, assignment, or barter of said compensation
3. Dividing compensation with others if it amounts to an anticipatory agreement

Prohibitions against Diminution of Salary

The general rule is that Congress has the power to fix or alter the compensation of a
public officer, except as provided for in the Constitution:

The salaries of the President and Vice-President shall be determined by law and shall
not be decreased during their tenure. No increase in said compensation shall take effect
until after the expiration of the term of the incumbent during which such increase was
approved. They shall not receive during their tenure another emolument from the
Government or any other source. [1987 Constitution, Art. VII, Sec. 6]

The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and
of judges of lower courts shall be fixed by law. During their continuance in office, their
salary shall not be decreased.[1987 Constitution, Art. VIII, Sec. 10]

The salary of the Chairman and the Commissioners shall be fixed by law and shall not
be decreased during their tenure. [1987 Constitution, Art. IX-A, Sec. 3]

The Ombudsman and his Deputies shall have the rank of Chairman and Members,
respectively, of the Constitutional Commissions, and they shall receive the same salary,
which shall not be decreased during their term of office. [1987 Constitution, Art. XI,
Sec. 10]

Right to Preference in Promotion

The “next-in-rank” rule applies only in cases of promotion. No vested right is granted to
the holder of a position but is given only a preferential consideration for promotion to a
vacant position.
There is "no mandatory nor peremptory requirement in the (Civil Service Law) that
persons next-in-rank are entitled to preference in appointment. What it does provide is
that they would be among the first to be considered for the vacancy, if qualified, and if
the vacancy is not filled by promotion, the same shall be filled by transfer or other
modes of appointment." [Santiago v. CSC, G.R. No. 81467, October 27, 1989]

To apply the next-in-rank rule peremptorily would impose a rigid formula on the
appointing power contrary to the policy of the law that among those qualified and
eligible, the appointing authority is granted discretion and prerogative of choice of the
one he deems fit for appointment.[Pineda v. Claudio, G.R. No. L-29661, May 13,
1969]

Automatic reversion rule: All appointments involved in a chain of promotions must be


submitted simultaneously for approval by the Commission. The disapproval of the
appointment of a person proposed to a higher position invalidates the promotion of
those in the lower positions and automatically restores them to their former positions.
Affected persons are entitled to payment of salaries for services rendered at a rate fixed
in their promotional appointments.

Right to Retirement Pay

Government employees covered by the Government Service Insurance Act are entitled
to retirement benefits, provided that the employee is a member of the GSIS who—

 Has at least 15 years of service


 Is at least 60 years of age
 Is not receiving a monthly pension benefit from permanent total disability

Retirement is compulsory at age 65, with at least 15 years of service.[P.D. 1146,


Section 11]

Other Benefits

Other benefits available to a government employee include:

1. Separation benefits
2. Unemployment or involuntary separation benefits
3. Disability benefits
4. Survivorship benefits
5. Funeral benefits
6. Life insurance benefits
7. Pensions

Right to Reimbursement

When a public officer, in the due performance of his duties, has been expressly or
impliedly required by law to incur expenses on the public account, not covered by his
salary or commission and not attributable to his own neglect or default, the reasonable
and proper amount thereof forms a legitimate charge against the public for which he
should be reimbursed.

Related Reference(s)

 Pineda vs. Claudio


G.R. No. L-29661 | 1969-05-13
 Narciso Y. Santiago vs. Civil Service Comm. Etal.
G.R. No. 81467 | 1989-10-27
 Jejomar Binay vs Sandiganbayan and DILG 316 SCRA 65
G.R. Nos. 120681-83 | 1999-10-01
 Jejomar Binay vs Sandiganbayan and DILG [SEPARATE OPINION, PANGANIBAN, J.]
G.R. Nos. 120681-83 | 1999-10-01
 Acosta, Amparado, et al vs CA, CSC, Secretary of DECS
G.R. No. 132088 | 2000-06-28
 Benedicto Bitonio vs COA & Chairman Celso Gangan
G.R. No. 147392 | 2004-03-12
 Benedicto Ernesto Bitonio, Jr. vs COA and Celso Gangan, et al
G.R. No. 147392 | 2004-03-12

Political Law; Law On Public Officers; The Civil Service


Scope

The Civil Service covers all branches, subdivisions, instrumentalities and agencies of the
government including GOCCs with original charter. This covers the administrative
personnel of the entire government system, both national and local, including the
military.

Classification of Positions in the Civil Service

1. Career service
o Entrance to the career service is based on merit and fitness which is determined
by competitive examinations or are based on highly technical qualifications.
There is security of tenure and opportunities for career advancement.
o Includes: faculty/academic staff of state colleges; personnel of GOCCs;
commissioned officers of AFP; permanent laborers; foreign service officer
2. Non-career service
o Entrance is based on areas other than those of the usual test of merit and
fitness Tenure is limited to a period specified by law or coterminous with that of
the appointing authority or subject to his pleasure or limited to the duration of a
particular project
o Includes: elective officials; department heads/cabinet members; chairmen of
commissions and boards with fixed terms; contractual personnel; casual
employees

Classes of positions in the Career Service

1. Clerical, trades, crafts, and custodial service positions


2. Professional, technical, and scientific positions
3. Career Executive Service

Constitutional classifications

1. Competitive—based on merit and fitness measured by competitive examinations


2. Non-competitive—includes positions which are:
o Policy-determining—power to formulate policies for the government
o Primarily confidential—insures freedom of intercourse without embarrassment of
freedom from misgiving of betrayal of personal trust on confidential matters of
the State. The termination of a primarily confidential employee is classified as
expiration of term brought about by loss of confidence.
o Highly technical—employee must possess skills or training of a supreme
degree. [1987 Constitution, Art. XI-B, Sec. 2]

Approval of appointments

The general rule is that the Civil Service Commission must approve all appointments,
whether original or promotional, to positions in the civil service and disapprove those
where the appointees do not possess the appropriate eligibility or required
qualifications.

The rule does not apply to:

1. Presidential appointments,
2. members of the Armed Forces of the Philippines,
3. police forces,
4. firemen, and
5. jail guards

An appointment to the civil service must be submitted to the CSC for approval within 30
days from issuance by the appointing authority to determine whether the appointee is
qualified to hold the position and whether the rules in the process of appointment were
followed. If not submitted and absent the favorable certification or approval, the
appointment is ineffective and the appointment can still be recalled or withdrawn by the
appointing authority.

Disapproval by the CSC

Where the CSC disapproves an appointment, the appointee need not be previously
heard since the action does not involve the imposition of an administrative penalty. The
appointee is given the opportunity to be heard by filing a motion for reconsideration of
the disapproval.

Authority of the CSC

CSC has the power to approve or disapprove an appointment set before it. It does not
have the power to make the appointment itself or to direct the appointing authority to
change the employment status of an employee. The CSC can only inquire into the
eligibility of the person chosen to fill a position and if it finds the person qualified it
must so attest. If not, the appointment must be disapproved. The duty of the CSC is to
attest appointments 10 and after that function is discharged, its participation in the
appointment process ceases. [Province of Camarines Sur v. CA, G.R. No. 104639,
July 14, 1995]

The determination of who among several candidates for a position possesses the best
qualifications rests solely on the appointing authority who occupies the ideal vantage
point from which to identify and designate the individual who can best fill the post and
discharge its functions. Once the discretion has been exercised, the CSC cannot replace
the appointee with an employee of its choice whom it believes to be better qualified
because the power of the CSC is merely confined to approving or disapproving
appointments. In other words, it is limited to the determination of whether the
appointee possesses the required qualifications for the post. Thereafter, its participation
in the appointment process ceases. Substituting its judgment for that of the appointing
authority constitutes encroachment on the latter's discretion. [Cabagnot v. CSC, G.R.
No. 93511, June 3, 1993]

Related Reference(s)

 Corazon L. Cabagnot Vs. Civil Service Commission, Et Al.


G.R. No. 93511 | 1993-06-03
 Province Of Camarines Sur, Et Al. Vs. Court Of Appeals, Et Al.
G.R. No. 104639 | 1995-07-14

Congressional Disqualifications
(1) May not hold any other office or employment in the government during his term
without forfeiting his seat. (Sec 13, Art VI of 1987 Constitution) The provision refers to
an Incompatible Office. Forfeiture of the seat in Congress shall be automatic upon
the member's assumption of such office deemed incompatible. [Adaza v. Pacana
(1985) 135 SCRA 431].
(2) May not be appointed to any office created or the emoluments thereof were
increased during the term for which he was elected. (Sec 13, Art VI of 1987
Constitution) The provision refers to a Forbidden Office. He cannot validly take the
office even if he is willing to give up his seat.
(3) Cannot personally appear as counsel before any court, electoral tribunal, quasi-
judicial and administrative bodies during his term of office. (Sec 14, Art VI of 1987
Constitution)
(4) Shall not be financially interested, directly or indirectly, in any contract with, or
franchise or special privilege granted by the government during his term of office. (Sec
14, Art VI of 1987 Constitution)
(5) Shall not intervene in any matter before any office of the government when it is for
his pecuniary benefit or where he may be called upon to act on account of his office.
(Sec 14, Art VI of 1987 Constitution) see also:[Puyat v De Guzman (1982)]

Related Reference(s)

 Puyat, et al. vs. De Guzman, Jr.


G.R. No. L-51122 | 1982-03-25
 Homobono A. Adaza vs. Fernando Pacana, Jr. 135 SCRA 431
G.R. No. L-68159 | 1985-03-18

Political Law; Law On Public Officers; Disabilities And Inhibition Of Public Officials
Disabilities for the President, Vice President, Members of the Cabinet, and
their deputies or assistants

The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office
or employment during their tenure. They shall not, during said tenure, directly or
indirectly, practice any other profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of
the President shall not, during his tenure, be appointed as Members of the
Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices, including government-owned
or controlled corporations and their subsidiaries. [1987 Constitution, Article VII,
Section 13]

Disabilities for Senators and Members of the House of Representatives

No Senator or Member of the House of Representatives may hold any other office or
employment in the Government, or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries, during his
term without forfeiting his seat. Neither shall he be appointed to any office which may
have been created or the emoluments thereof increased during the term for which he
was elected. [1987 Constitution, Article VI, Section 13]

No Senator or Member of the House of Representatives may personally appear as


counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial
and other administrative bodies. Neither shall he, directly or indirectly, be interested
financially in any contract with, or in any franchise or special privilege granted by the
Government, or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation, or its subsidiary, during his term of office.
He shall not intervene in any matter before any office of the Government for his
pecuniary benefit or where he may be called upon to act on account of his
office. [1987 Constitution, Article VI, Section 14]

Senators and Members of the House of Representatives are disqualified to hold two
classes of office, namely:

1. Incompatible office – any other office or employment in the Government, or any


subdivision, agency, or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries
2. Forbidden office – any office which may have been created or the emoluments
thereof increased during the term for which he was elected

Disabilities for Members of Constitutional Commissions

No member of a Constitutional Commission shall, during his tenure, hold any other
office or employment. Neither shall he engage in the practice of any profession or in the
active management or control of any business which, in any way, may be affected by
the functions of his office, nor shall he be financially interested, directly or indirectly, in
any contract with, or in any franchise or privilege granted by the Government, any of
its subdivisions, agencies, or instrumentalities, including government-owned or
controlled corporations or their subsidiaries. [1987 Constitution, Article IX-A,
Section 2]

Prohibition against Members of the Judiciary

The Members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative function. [1987
Constitution, Article VIII, Section 12]

Prohibition against Appointment of Elective Officials

No elective official shall be eligible for appointment or designation in any capacity to


any public office or position during his tenure. [1987 Constitution, Article IX-B,
Section 7]

Prohibition against Appointment of Appointive Officials

Unless otherwise allowed by law or by the primary functions of his position, no


appointive official shall hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including Government-owned or
controlled corporations or their subsidiaries. [1987 Constitution, Article IX-B,
Section 7]
Prohibition against Receipt of Additional, Double or Indirect Compensation

No elective or appointive public officer or employee shall receive additional, double, or


indirect compensation, unless specifically authorized by law, nor accept without the
consent of the Congress, any present, emolument, office, or title of any kind from any
foreign government.

Pensions or gratuities shall not be considered as additional, double, or indirect


compensation. [1987 Constitution, Article IX-B, Section 8]

Prohibition against Appointment of Members of the Armed Forces to Civilian


Positions

No member of the armed forces in the active service shall, at any time, be appointed or
designated in any capacity to a civilian position in the Government including
government-owned or controlled corporations or any of their subsidiaries. [1987
Constitution, Article XVI, Section 5(4)]

Prohibition against grant of loan, guaranty or other form of financial


accommodation
No loan, guaranty, or other form of financial accommodation for any business purpose
may be granted, directly or indirectly, by any government-owned or controlled bank or
financial institution to the President, the Vice-President, the Members of the Cabinet,
the Congress, the Supreme Court, and the Constitutional Commissions, the
Ombudsman, or to any firm or entity in which they have controlling interest, during
their tenure. [1987 Constitution, Article XI, Section 16]

Political Law; Law On Public Officers; Powers And Duties Of Public


Officials
The Philippines is a democratic and republican state. Sovereignty resides in the people
and all government authority emanates from them. [1987 Constitution, Article II,
Section 1]

Scope of Powers

The authority of a public officer is—

1. Expressly conferred upon him by the law under which he has been appointed or
elected;
2. Expressly annexed to the office by the law which created it, or some other law
referring to it; or
3. Attached to the office as incidents of it.

Doctrine of Necessary Implication

Express grants of power are subjected to a strict interpretation in order to be construed


as conferring only those powers which are expressly imposed or necessarily implied.

Limitations to Authority

Territorial limitation—A public officer’s authority cannot exist in places where the law
has no effect. If a public officer is authorized by law to perform duties at a particular
place, any action in any other place has no effect. This rule is applicable to officers
whose duties are essentially local in nature
Duration of term—The exercise of authority by a public officer is limited to that term
during which he is invested by law with the rights and duties of the office. He cannot
exercise authority granted by law before his term begins or after it has terminated.

Ministerial and Discretionary Duties

A duty is ministerial when it is absolutely certain, and imperative, involving merely


execution of a specific duty arising from fixed and designated facts. There is no element
of discretion in the duty.

A duty is discretionary when such duty requires the exercise of reason in adapting the
means to the end, and discretion in determining how or whether the act shall be done.
It arises when the act can be performed in more than one way, which leads the
performer in which way it should be performed.The exercise of discretion by an officer
is still limited to the evident purposes of the act, and to what is known as a sound and
legal discretion, excluding all arbitrary, capricious, inquisitorial and oppressive
proceedings.

Mandamus to Compel Performance

Mandamus lies to compel a specific action if the duty sought to be performed is


ministerial.

If the duty is discretionary, mandamus lies to require action only. However, the general
rule is that mandamus will not lie to compel the performance of discretionary duties,
except when there is—

1. Grave abuse of discretion


2. Manifest injustice
3. Palpable excess of authority equivalent to a denial of settled rights
4. No other plain, speedy or adequate remedy [Lamb v. Phipps, G.R. No. L-7806,
July 12, 1912]

Constitutional Duties of Public Officers

The following are the Constitutional duties of public officers:

1. To be accountable to the people [1987 Constitution, Art. XI, Sec. 1]


2. To serve the people with utmost responsibility, loyalty and efficiency[1987
Constitution, Art. XI, Sec. 1]
3. To act with patriotism and justice [1987 Constitution, Art. XI, Sec. 1]
4. To lead modest lives [1987 Constitution, Art. XI, Sec. 1]
5. To submit a declaration under oath of his assets, liabilities and net worth upon
assumption of office and as often as may be required [1987 Constitution, Art. XI,
Sec. 17]
6. To owe the State and the Constitution allegiance at all times [1987 Constitution,
Art. XI, Sec. 18]

Related Reference(s)

 Lamb vs. Phipps


G.R. No. 7806 | 1912-07-12
Temporary (Acting) Appointment
appointments can either be permanent or temporary (acting). A basic distinction is that a permanent
appointee can only be removed from office for cause; whereas a temporary appointee can be
removed even without hearing or cause. Generally, the power to appoint vested in the President
includes the power to make temporary appointments, unless he is otherwise specifically prohibited
by the Constitution or by the law, or where an acting appointment is repugnant to the nature of the
office involved. The President's power to issue an acting appointment is particularly authorized by
the Administrative Code of 1987 (Executive Order No. 292). The purpose of an acting or temporary
appointment is to prevent a hiatus in the discharge of official functions by authorizing a person to
discharge those functions pending the selection of a permanent or another appointee. An acting
appointee accepts the position on the condition that he shall surrender the office once he is called to
do so by the appointing authority. Therefore, his term of office is not fixed but endures at the
pleasure of the appointing authority. His separation from the service does not import removal but
merely the expiration of his term -- a mode of termination of official relations that falls outside the
coverage of the constitutional provision on security of tenure since no removal from office is
involved.

Related Reference(s)

 Hon. Luis Mario M. General, Commissioner National Police Commission vs. Hon. Alejandro
S. Urro, et al.
G.R. No. 191560 | 2011-03-29

Political Law; Law On Public Officers; Modes And Kinds Of Appointment


Kinds of Presidential Appointments

Presidential appointments may be classified into four:

1. Regular appointments – those appointed while Congress is in session


2. Ad interim appointments – those made while Congress is not in session, or is in
recess
3. Permanent appointments – those which subsist until lawfully terminated
4. Temorary/acting appointments – those which last until a permanent appointment is
made

Regular or ad interim appointments, which are also permanent, are subject to


confirmation by the Commission on Appointments.

Appointments by the President

The President may appoint the following four groups of officials:

1. Heads of executive departments, ambassadors, other public ministers and consuls,


officers of the armed forces from the rank of colonel or naval captain, regular
members of the JBC, SC and judges, Chairman and Commissioners of the COMELEC
and Commission on Audit, Members of the regional consultative commission
2. All other officers whose appointments are not otherwise provided by law.
3. Those whom the President may be authorized by law to appoint.
4. Other officers lower in rank whose appointments the Congress, by law, vests in the
President alone. [1987 Philippine Constitution, Article VII, Section 16]

Only those in the first group require confirmation from by Commission on Appointments
in order for the appointment to be valid. However, if the Vice President was appointed
by the President as an ex-officio head of an executive department, his appointment
does not require confirmation.
Ad interim Appointments

An ad interim appointment is one made by the President when Congress is not in


session or is in recess, and which requires confirmation by the Commission on
Appointments. It is permanent in nature and not a mere temporary appointment. It
may be revoked or recalled by the President prior to confirmation.

Temporary/acting Appointments

The essence of an acting appointment is its temporary nature. It is a stop gap measure
intended to fill an office for a limited time until a permanent appointment is extended or
a new appointee is chosen[Marohombsar v. Alonto, G.R. No. 93711, February 25,
1991]

A temporary or acting appointment cannot be validly confirmed by the Commission on


Appointments because confirmation presupposes a valid nomination of ad interim
appointment. [Valencia v. Peralta, G.R. No. L-20864, August 23, 1963]

The purpose of an acting or temporary appointment is to prevent a hiatus in the


discharge of official functions by authorizing a person to discharge those functions
pending the selection of a permanent or another appointee. An acting appointee
accepts the position on the condition that he shall surrender the office once he is called
to do so by the appointing authority. Therefore, his term of office is not fixed but
endures at the pleasure of the appointing authority. His separation from the service
does not import removal but merely the expiration of his term — a mode of termination
of official relations that falls outside the coverage of the constitutional provision on
security of tenure since no removal from office is involved. [General v. Urro, G.R. No.
191560, March 29, 2011]

The nature of an acting appointment limits not only the claims of the appointee to a
lengthy tenure but also defines the authority of the appointing power. A public officer
appointed in an acting capacity cannot claim that the appointment shall in time ripen
into a permanent one. However, neither can the appointing power use the principle of
temporary appointments to evade or avoid the security of tenure principle in the
Constitution and the Civil Service Law. Thus, the Court may inquire into the true nature
of an "acting" appointment to determine whether or not it is used as a device to
circumvent the security of tenure principle. [Marohombsar v. Alonto, G.R. No.
93711, February 25, 1991]

A person appointed in a temporary capacity has no personality to bring a quo warranto


action [Sevilla v. CA, G.R. No. 88498, June 9, 1992].

Appointments by Other Officials

The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of departments, agencies, commissions,
or boards. [1987 Philippine Constitution, Article VII, Section 16]

Designation

While an appointment is the selection by the proper authority of an individual who is to


exercise the powers and functions of a given office, designation merely connotes an
imposition of additional duties, usually by law, upon a person already in the public
service by virtue of an earlier appointment. [Dimaandal v. Commission on Audit,
G.R. No. 122197, June 26, 1998]

Designation is simply the mere imposition of new or additional duties on the officer or
employee to be performed by him in a special manner. It does not entail payment of
additional benefits or grant upon the person so designated the right to claim the salary
attached to the position. As such, there being no appointment issued, designation does
not entitle the officer designated to receive the salary of the position. [Dimaandal v.
Commission on Audit, G.R. No. 122197, June 26, 1998]

Related Reference(s)

 Elpidio Valencia Vs. Macario Peralta, Jr. 118 Phil. 691


G.R. No. L-20864 | 1963-08-23
 Emily M. Marohombsar Vs. Ahmad E. Alonto, Jr., Et Al.
G.R. No. 93711 | 1991-02-25
 Generoso R. Sevilla Vs. Court Of Appeals, Et Al.
G.R. No. 88498 | 1992-06-09
 Zosimo M. Dimaandal vs. Commission on Audit
G.R. No. 122197 | 1998-06-26
 Hon. Luis Mario M. General, Commissioner National Police Commission vs. Hon. Alejandro
S. Urro, et al.
G.R. No. 191560 | 2011-03-29

Political Law; Constitutional Law; Legislative Department; Legislative


Privileges, Inhibitions And Disqualifications
Privileges

The privileges of Congress include those regarding salaries, freedom from arrest, and, speech
and debate clause.

The salaries of Senators and Representatives shall be determined by law. No increase in said
compensation shall take effect until after the expiration of the full term of all the Members of the
Senate and the House of Representatives approving such increase. [Art. VI, Sec. 10]

A Senator or Member of the House of Representatives shall, in all offenses punishable by not
more than six years imprisonment, be privileged from arrest while the Congress is in
session. [Sec. 11, Art VI] Preventive suspension is not a penalty. Order of suspension under R.A.
3019 (Anti-Graft and Corrupt Practices Act) is distinct from the power of Congress to discipline
its own members, and did not exclude members of Congress from its operation. [Defensor-
Santiago v. Sandiganbayan, G.R. No. 128055, April 18, 2001]

In People v. Jalosjos, the SC denied the request of Cong. Jalosjos that he be allowed to attend
legislative sessions. He denial was premised on the following: (a) membership in Congress does
not exempt an accused from statutes and rules which apply to validly incarcerated persons; (b)
one rationale behind confinement is public self-defense; (c) it would amount to creation of a
privileged class, without justification in reason; and (d) he was provided with an office in the
New Bilibid Prison. [People v. Jalosjos, G.R. Nos. 132875-76, February 3, 2000]

No Member shall be questioned nor be held liable in any other place for any speech or debate in
the Congress or in any committee thereof.

To come under the guarantee the speech or debate" must be one made "in Congress or in any
committee thereof." Publication of an allegedly libelous letter is not covered by the
privilege. [Jimenez v. Cabangbang, G.R. No. L-15905, August 3, 1966].

Each House of the Congress can discipline its members for disorderly conduct or behavior. What
constitutes disorderly behavior is entirely up to Congress to define.

The immunity, although absolute in its protection of the member of Congress against suits for
libel, does not shield the member against the disciplinary authority of the Congress. [Osmeña v.
Pendatun, G.R. No. L-17144, October 28, 1960]

Disqualifications

Members of Congress may not hold any other office or employment in the government during
his term without forfeiting his seat. [Art. VI, Sec. 13] The provision refers to an Incompatible
Office. Forfeiture of the seat in Congress shall be automatic upon the member’s assumption of
such office deemed incompatible. [Adaza v. Pacana, G.R. No. L-68159, March 18, 1985]

He/She may not be appointed to any office created or the emoluments thereof were increased
during the term for which he was elected. [Art. VI, Sec. 13] The provision refers to a Forbidden
Office. He cannot validly take the office even if he is willing to give up his seat.

Members cannot personally appear as counsel before any court, electoral tribunal, quasi-judicial
and administrative bodies during his term of office. [Art. VI, Sec. 14]However, in Puyat v. De
Guzman, Certain salient circumstances militate against the intervention of Assemblyman
Fernandez in the SEC Case. He had acquired a mere P200.00 worth of stock in IPI, representing
ten shares out of 262,843 outstanding shares. He acquired them after the contested election of
Directors, after the quo warranto suit had been filed before SEC, and one day before the
scheduled hearing of the case before the SEC. Before he moved to intervene, he had signified his
intention to appear as counsel for respondent, which was objected to by petitioners. Realizing,
perhaps, the validity of the objection, he decided, instead, to "intervene" on the ground of legal
interest in the matter under litigation. Under those facts and circumstances that there has been an
indirect "appearance as counsel before ... an administrative body" and that is a circumvention of
the Constitutional prohibition. The "intervention" was an afterthought to enable him to appear
actively in the proceedings in some other capacity. [Puyat v De Guzman, G.R. No. L-51122,
March 25, 1982]

He/She shall not be financially interested, directly or indirectly, in any contract with, or franchise
or special privilege granted by the government during his term of office. [Art. VI, Sec. 14]

He/She shall not intervene in any matter before any office of the government when it is for his
pecuniary benefit or where he may be called upon to act on account of his office. [Art. VI, Sec.
14]

Related Reference(s)

 Sergio Osmena, Jr. vs. Salipada K. Pendatun, et al., 109 Phil 863
G.R. No. L-17144 | 1960-10-28
 Nicanor T. Jimenez vs. Bartolome Cabangbang 17 SCRA 876
G.R. No. L-15905 | 1966-08-03
 Puyat, et al. vs. De Guzman, Jr.
G.R. No. L-51122 | 1982-03-25
 Homobono A. Adaza vs. Fernando Pacana, Jr. 135 SCRA 431
G.R. No. L-68159 | 1985-03-18
 People vs Jalosjos
G.R. Nos. 132875-76 | 2000-02-03
 PEOPLE vs Romeo Jaloslos [CONCURRING OPINION GONZAGA-REYES]
G.R. Nos. 132875-76 | 2000-02-03
 Santiago vs Sandiganbayan 356 SCRA 636
G.R. No. 128055 | 2001-04-18
 People vs Romeo Jalosjos 369 SCRA 179
G.R. Nos. 132875-76 | 2001-11-16
Contractors Tax
Contractors tax on gross receipts imposed on business agents including private
detective watchman agencies, was a tax on the sale of services or labor, imposed on
the exercise of a privilege. [Protector's Services, Inc. vs. Court of Appeals, G.R. No.
118176, April 12, 2000]

Meaning of “Contractor”

The Local Government Code (LGC) , Republic Act No. 7160, as amended, defines a
Contractor, as follows:

SECTION 131. Definition of Terms. -


xxx

(13) "Contractor" includes persons, natural or juridical, not subject to professional tax
under Section 139 of this Code, whose activity consists essentially of the sale of kinds
of services for a fee, regardless of whether or not the performance of the service calls
for the exercise or use of the physical or mental faculties of such contractor or his
employees.

As used in this Section, the term "contractor" shall include general engineering, general
building and specialty contractors as defined under applicable laws; filling, demolition
and salvage works contractors; proprietors or operators of mine drilling apparatus;
proprietors or operators of dockyards; persons engaged in the installation of water
system, and gas or electric light, heat, or power, proprietors or operators of smelting
plants; engraving, plating, and plastic lamination establishments; proprietors or
operators of establishments for repairing, repainting, upholstering, washing or greasing
of vehicles, heavy equipment, vulcanizing, recapping and battery charging; proprietors
or operators of furniture shops and establishment for planning or surfacing and
recutting of lumber, and sawmills under contract and recutting of lumber, and sawmill
under contract to saw or cut logs belongings to others proprietors or operators of dry-
cleaning or dyeing establishments, steam laundries using washing machines;
proprietors or owners of shops for the repair of any kind of mechanical and electrical
devices, instruments, apparatus, or furniture and shoe repairing by machine or any
mechanical contrivance; proprietors or operators of establishments or lots for parking
purposes; proprietors or operators of tailor shops, dress shops, millineres and hatters,
beauty parlors, barbershops, massage clinics, sauna, Turkish and Swedish baths,
slenderizing and building saloons and similar establishments; photographic studios;
funeral parlors; proprietors or operators of hotels, motels, and lodging houses;
proprietors or operators of arrastre and stevedoring, warehousing, or forwarding
establishments; master plumbers, smiths, and house or sign painters; printers,
bookbinders, lithographers; publishers except those engaged in the publication or
printing of any newspaper, magazine, review or bulletin which appears at regular
intervals with fixed prices for subscription and sale and which is not devoted principally
to the publication of advertisements, business agents, private detective or watchman
agencies, commercial and immigration brokers, and cinematographic film owners,
lessors and distributors.

Meaning of “Gross receipts”

The term "gross receipts" means all amounts received by the prime or principal
contractor as the total price, undiminished by the amount paid to the subcontractor
under a subcontract arrangement. Hence, gross receipts could not be diminished by
employer's SSS, SIF and Medicare contributions.

Salaries of security guards form part of the taxable gross receipts of a security agency
for purposes of the [contractors tax]. The reason is that the salaries of the security
guards are actually the liability of the agency and that the guards are considered their
employees; hence, for percentage tax purposes, the salaries of the security guards are
includible in its gross receipts. [Protector's Services, Inc. vs. Court of Appeals, G.R. No.
118176, April 12, 2000]

Payment of Local Business Tax for contractors with branch offices

Under the Local Government Code (LGC), businesses maintaining or operating a branch
or sales office elsewhere shall record the sale in the branch or sales office making the
sale or transaction, and its local business tax (LBT) shall be paid to the city or
municipality where such branch or sales office is located.

Under Section 150 of the LGC:

xxx
(b) The following sales allocation shall apply to manufacturers, assemblers, contractors,
producers, and exporters with factories, project offices, plants, and plantations in the
pursuit of their business:

(1) Thirty percent (30%) of all sales recorded in the principal office shall be taxable by
the city or municipality where the principal office is located; and

(2) Seventy percent (70%) of all sales recorded in the principal office shall be taxable
by the city or municipality where the factory, project office, plant, or plantation is
located.

(d) In cases where a manufacturer, assembler, producer, exporter or contractor has


two (2) or more factories, project offices, plants, or plantations located in different
localities, the seventy percent (70%) sales allocation mentioned in subparagraph (b) of
subsection (2) above shall be prorated among the localities where the factories, project
offices, plants, and plantations are located in proportion to their respective volumes of
production during the period for which the tax is due.

(e) The foregoing sales allocation shall be applied irrespective of whether or not sales
are made in the locality where the factory, project office, plant, or plantation is located.

What constitutes a branch office

In City of Makati vs. Municipality of Bakun and Luzon Hydro Corporation, CTA
En Banc Case No. 1179, January 14, 2016, the Court of Tax Appeals (CTA) En Banc
held that for a branch or sales office to be considered taxable, it must conduct the
operations of the business as an extension of the principal office. The branch or sales
office should likewise record the sale or transaction.

In contrast, the taxpayer’s administrative office in the city does not operate any aspect
of its business or primary purposes (i.e., hydroelectric power generation) nor does it
handle the invoices or records of sales to its customer. Thus, the CTA ruled that the
office in the city cannot be considered a branch or sales office for LBT purposes.

What constitutes a project office

While Section 150 does not specifically define the term project office, it is nonetheless
defined in Section 5(a)(3) of BLGF Local Finance Circular No. 03-95 (Prescribing
Guidelines Governing the Power of Cities and Municipalities to Impose
Business Tax on Construction Contractors).

In the said issuance covering construction contractors, the term project office is
defined as the field office in the construction site and is equivalent to the factory of a
manufacturer. [Sec 5(a)(3)]

According to the CTA in the same above case, since the factory is deemed the heart of
and is indispensable to the operations of the manufacturer, so must the taxpayer’s
office in the city be deemed indispensable to its main purpose of generating
hydroelectric power before it can be classified as a project office. The taxpayer claimed
that the office in question is only an administrative office.. Therefore, the CTA ruled
that the taxpayer’s office in the city is not a project office as contemplated under the
LGC.

Related Reference(s)

 Protector’s Services, Inc. vs Court of Appeals and CIR


G.R. No. 118176 | 2000-04-12
 Local Government Code of 1991
Republic Act No. 7160 | 1991-10-10
 BLGF Local Finance Circular No. 3-95
BLGF Local Finance Circular No. 3-95 | 1995-05-22
 The City Of Makati vs. The Municipality Of Bakun And Luzon Hydro Corporation
CTA EB CASE NO. 1179 | 2016-01-14

Special Election
A special election is an election not regularly held to supply a vacancy in a particular
office before the expiration of the full term for which the incumbent was elected.

(Ramon R. Papa vs. Municipal Board Of The City Of Manila G.R. No. 23892
March 23, 1925)

Related Reference(s)

 Ramon R. Papa vs. Municipal Board Of The City Of Manila 047 Phil 694
G.R. No. 23892 | 1925-03-23

Criminal Law; Penalties; Duration And Effects


Duration of Penalties

1. Reclusion perpetua - 20 years and 1 day to 40 years


2. Reclusion temporal - 12 years and 1 day to 20 years
3. Prision mayor and temporary disqualification - 6 years and 1 day to 12 years, except when
disqualification is accessory penalty, in which case, its duration is that of the principal penalty
4. Prision correccional, suspension and destierro - 6 months and 1 day to 6 years, except when
suspension suspension is an accessory penalty, in which case it's duration is that of the principal
penalty
5. Arresto mayor - 1 month and 1 day to 6 months
6. Arresto menor - 1 day to 30 days
7. Bond to keep the peace - the period during which the bond shall be effective is discretionary on the
court. [Article 27, Revised Penal Code]

Effects of Penalties

The penalties of perpetual or temporary absolute disqualification for public office shall produce
the following effects:

1. The deprivation of the public offices and employments which the offender may have held even if
conferred by popular election.
2. The deprivation of the right to vote in any election for any popular office or to be elected to such
office.
3. The disqualification for the offices or public employments and for the exercise of any of the rights
mentioned.
4. The loss of all rights to retirement pay or other pension for any office formerly held.[Article 30,
Revised Penal Code]

The penalties of perpetual or temporal special disqualification for public office, profession or
calling shall produce the following effects:

1. The deprivation of the office, employment, profession or calling affected;


2. The disqualification for holding similar offices or employments either perpetually or during the term
of the sentence according to the extent of such disqualification. [Article 31, Revised Penal Code]

The penalties of perpetual or temporary special disqualification for the exercise of the right of
suffrage produce the following effects:

1. Deprivation of the right to vote or to be elected to such office.


2. Cannot hold any public office during the period of his disqualification.[Article 32, Revised Penal
Code]

The penalties of suspension from public office, profession or calling, and the exercise of the right
of suffrage produce the following effects:

1. Disqualification from holding such office or exercising such profession or calling or right of suffrage
during the term of the sentence.
2. If suspended from public office, he shall not hold another office having similar functions during the
period of his suspension.[Article 33, Revised Penal Code]

Civil interdiction shall produce the following effects:

1. Deprivation of the rights of parental authority, or guardianship, either as to the person or property
of any ward
2. Deprivation of marital authority
3. Deprivation of the right to manage his property and of the right to dispose of such property by any
act or any conveyance inter vivos.[Article 34, Revised Penal Code]

Effects of bond to keep the peace


1. The offender must present two sufficient sureties who shall undertake that the offender will not
commit the offense sought to be prevented, and that in case such offense be committed they will
pay the amount determined by the court, or
2. The offender must deposit such amount in the office of the clerk of the court to guarantee said
undertaking, or
3. The offender may be detained for a period which shall in no case exceed 6 months, if prosecuted for
a grave or less grave felony, or for a period not to exceed thirty days, if for a light felony. [Article 35,
Revised Penal Code]

Party-List Representatives, Qualifications And Nomination


QUALIFICATIONS OF PARTY LIST REPRESENTATIVES: 1. Natural born citizen of the Philippines;
2. Registered voter; 3. Resident of the Philippines for a period of not less than one (1) year
immediately preceding the day of the election; 4. At least 25 years of age on the day of the election
(Youth sector nominee must be at least 25 years but not more than 30 years old on day of election);
5. Able to read and write; 6. A bona fide member of the party or organization he seeks to represent
for at least ninety (90) days before the day of the election. In case of a nominee of the youth sector,
he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the
election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be
allowed to continue in office until the expiration of his term. [Sec. 9, R.A. No. 7941] A nominee who
changes his sectoral affiliation within the same party will only be eligible for nomination under the
new sectoral affiliation if the change has been effected at least six months before the elections.
[Amores v. HRET, 2010)] MECHANICS OF NOMINATION Each registered party, organization or
coalition shall submit to the COMELEC not later than forty-five (45) days before the election a list of
names, not less than five (5), from which party-list representatives shall be chosen in case it obtains
the required number of votes. A person may be nominated in one (1) list only. Only persons who
have given their consent in writing may be named in the list. The list shall not include any candidate
for any elective office or a person who has lost his bid for an elective office in the immediately
preceding election. No change of names or alteration of the order of nominees shall be allowed after
the same shall have been submitted to the COMELEC except in cases where the nominee dies, or
withdraws in writing his nomination, becomes incapacitated in which case the name of the substitute
nominee shall be placed last in the list. Incumbent sectoral representatives in the House of
Representatives who are nominated in the party-list system shall not be considered resigned. [Sec.
8, R.A. No. 7941]

Related Reference(s)

 Milagros E. Amores vs. House of Representatives Electoral Tribunal (HRET) and


Emmanuel Joel J. Villanueva
G.R. No. 189600 | 2010-06-29
 Party-List System Act
R.A. No. 7941 | 1995-03-03

Effect Of Filing Of Certificate Of Candidacy


(a) Incumbent Elected Official

Pursuant to Section 14 of RA 9006 or the Fair Election Act, which repealed Section 67 of
the Omnibus Election Code, an elected official is not deemed to have resigned from
his office upon the filing of his certificate of candidacy for the same or any other elected
office or position.

This is further expressed under the Implementing Rules and Regulations of the Fair
Election Act (RA 9006), to wit:
Sec. 26. Effect of filing certificate of candidacy by elective officials. -Any elective official,
whether national or local, who has filed a certificate of candidacy for the same or any
other office, shall not be considered resigned from his office.

In effect, the repealing clause of the Fair Election Act allows elected officials to run for
another office without forfeiting the office they currently hold.

[ see Quinto vs COMELEC, G.R. No. 189698, February 22, 2010 (Resolution);
see also Farinas vs Executive Secretary, G.R. No. 147387, December 10, 2003]

NOTE: This has overturned the ruling in Dimaporo vs. Mitra, Jr. , G.R. No. 96859,
October 15, 1991

(b) Incumbent Appointive Official

In Quinto vs Comelec, G.R. No. 189698, December 1, 2009, the Supreme Court
struck down as unconstitutional Section 4(a) of COMELEC Resolution No. 8678 in
relation to Section 13 of Republic Act No. 9369, and Section 66 of the Omnibus Election
Code, on the ground, among others, that the rule therein violates the equal protection
clause of the Constitution because of the differential treatment of persons holding
appointive offices and those holding elective positions.

The assailed Section 4(a) of COMELEC Resolution No. 8678 states that:

SEC. 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a


public appointive office or position including active members of the Armed Forces of the
Philippines, and other officers and employees in government-owned or controlled
corporations, shall be considered ipso facto resigned from his office upon the filing of
his certificate of candidacy.

b) Any person holding an elective office or position shall not be considered


resigned upon the filing of his certificate of candidacy for the same or any other elective
office or position.

However, in an En Banc Resolution dated February 22, 2010, the Supreme Court,
speaking through Chief Justice Puno overturned the 2009 Decision. The Court held that
Section 4(a) of COMELEC Resolution No. 8678 and Section 66 of the Omnibus Election
Code do not violate the equal protection clause, reasoning that substantial distinctions
exist between elective officials and appointive officials. The former occupy their office
by virtue of the mandate of the electorate. They are elected to an office for a definite
term and may be removed therefrom only upon stringent conditions. On the other
hand, appointive officials hold their office by virtue of their designation thereto by an
appointing authority. Moreover, appointive officials, as officers and employees in the
civil service, are strictly prohibited from engaging in any partisan political activity or
take part in any election except to vote. Under the same provision, elective officials, or
officers or employees holding political offices, are obviously expressly allowed to take
part in political and electoral activities. [see Quinto vs COMELEC, G.R. No. 189698
February 22, 2010 (Resolution)]

Thus, as the present rule stands, the limitation on appointive officials continues to be
operative – they aredeemed resigned when they file their certificates of
candidacy.
(c) Barangay Offices

Barangay elections are governed by a separate deemed resignation rule. This is


because elections for barangay offices are the only elections in the country which
involve nonpartisan public offices.

The rule is found in Section 39 of the Omnibus Election Code, which states:

Section 39. Certificate of Candidacy. – xxx

Any elective or appointive municipal, city, provincial or national official or


employee, or those in the civil or military service, including those in government-owned
or-controlled corporations, shall beconsidered automatically resigned upon the filing
of certificate of candidacy for a barangay office.

Related Reference(s)

 Dimaporo vs. Mitra, Jr.


G.R. No. 96859 | 1991-10-15
 Mohammad Ali Dimaporo Vs. Ramon V. Mitra, Jr., Et Al. [ SEPARATE OPINIONS ]
G.R. No. 96859 | 1991-10-15
 Rodolfo C. Farinas, et al vs. The Executive Secretary, COMELEC, et al.
G.R. No. 147387 | 2003-12-10
 Eleazar P. Quinto and Gerino A. Tolentino, Jr. Vs. Commission on Elections
G.R. No. 189698 | 2009-12-01
 Eleazar P. Quinto and Gerino A. Tolentino, Jr. Vs. Commission on Elections [DISSENTING OPINION,
PUNO C.J.]
G.R. No. 189698 | 2009-12-01
 Eleazar P. Quinto and Gerino A. Tolentino, Jr. Vs. Commission on Elections [DISSENTING OPINION,
CARPIO J.]
G.R. No. 189698 | 2009-12-01
 Eleazar P. Quinto and Gerino A. Tolentino, Jr. Vs. Commission on Elections [RETENTION OF OFFICE]
G.R. No. 189698 | 2009-12-01
 Eleazar P. Quinto and Gerino A. Tolentino, Jr. Vs. Commission on [DISSENTING OPINION, CARPIO
MORALES J.]
G.R. No. 189698 | 2009-12-01
 Eleazar P. Quinto and Gerino A. Tolentino, Jr. Vs. Commission on Elections [RESOLUTION]
G.R. No. 189698 (Resolution) | 2010-02-22
 Eleazar P. Quinto and Gerino A. Tolentino, Jr. Vs. Commission on Elections [CONCURRING OPINION,
CARPIO J.]
G.R. No. 189698 | 2010-02-22
 Eleazar P. Quinto and Gerino A. Tolentino, Jr. Vs. Commission on Elections [DISSENTING OPINION,
NACHURA J.]
G.R. No. 189698 | 2010-02-22
 Omnibus Election Code of the Philippines
B.P. 881 | 1985-12-03
Political Law; Constitutional Law; Executive Department; Who Shall
Exercise Executive Power
The Executive Power shall be vested in the President of the Philippines [Sec. 1, Art. VII, 1987
Constitution]. The following are the qualifications that a person must meet to hold the office of
president: (1) natural-born citizen of the Philippines; (2) a registered voter; (3) able to read and
write; (4) at least forty years of age on the day of the election; and (5) a resident of the
Philippines for at least 10 years immediately preceding such election [Sec. 2, Art. VII, 1987
Constitution]. There shall also be a Vice-President with the same qualifications and term of
office as the President [Sec. 3, Art. VII, 1987 Constitution].

The President and the Vice-President shall be elected by direct vote of the people though a
regular election which is held on a second Monday of May. The term of Office is 6 years, which
shall begin at noon on the 30th day of June next following the day of the election and shall end at
noon of the same day 6 years thereafter. The President is not eligible for re-election, while the
Vice President cannot serve for more than two successive terms. No person who has succeeded
as President and has served for more than 4 years shall be qualified for election to the same
office for any length of time. [Sec. 4, Art. VII, 1987 Constitution]

The Congress, acting as the National Board of Canvassers, has the authority to canvass the votes
and proclaim the winner. The returns shall be transmitted to Congress, directed to the Senate
President. In a joint public session, not later than 30 days after election date; returns to be opened
in the presence of the Senate and HOR in joint session Jurisprudence on Canvassing. Congress
may validly delegate the initial determination of the authenticity and due execution of the
certificates of canvass to a Joint Congressional Committee, composed of members of both
houses [Lopez v. Senate, G.R. No. 163556, June 8, 2004]. Even after adjournment of regular
session, Congress may still continue canvassing the presidential and vice-presidential election
results without need of any call for a special session by the President. Only when a board of
canvassers has completed its functions is it rendered functus officio [Pimentel, Jr. v. Joint
Committee of Congress, G.R. No. 163783, June 22, 2004].Thus, there is no constitutional or
statutory basis for COMELEC to undertake a separate and an unofficial tabulation of results,
whether manually or electronically. By conducting such unofficial tabulation, the Commission
descends to the level of a private organization spending public funds for the purpose. [Brillantes
v. COMELEC, G.R. No. 163193, June 15, 2004]

The person having the highest number of votes shall be proclaimed elected, but in case two or
more shall have an equal and highest number of votes, one of them shall be chosen through the
vote of a majority of all the Members of both Houses of the Congress, voting separately. The
Supreme Court, sitting en banc, as the Presidential Electoral Tribunal, shall be the sole judge of
all contests relating to the election, returns and qualifications of the President or Vice-President,
and may promulgate its rules for the purpose. [Art. VII, Sec. 4]

The President shall have an official residence. The salary will be determined by law and shall not
be decreased during tenure. No increase shall take effect until after the expiration of the term of
the incumbent during which such increase was approved [Art. VII, Sec. 6]

Related Reference(s)

 Brillantes, Jr vs COMELEC
G.R. No. 163193 | 2004-06-15
 PIMENTEL vs. CONGRESS
G.R. No. 163783 | 2004-06-22
 Lopez vs. Senate of the Philippines et al. [Minute Resolution]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [Resolution]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [SEPARATE OPINION, DAVIDE, JR., C.J.]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [SEPARATE OPINION, PUNO, J.]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [SEPARATE OPINION, QUISUMBING, J.]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [SEPARATE OPINION, CARPIO MORALES, J.]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [SEPARATE OPINION, TINGA, J.]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [CONCURRING OPINION, CALLEJO, J.]
G.R. No. 163556 | 2004-06-08

Aguinaldo Doctrine (Condonation Doctrine)


The condonation doctrine - which connotes this same sense of complete extinguishment
of liability as will be herein elaborated upon - is not based on statutory law. It is a
jurisprudential creation that originated from the1959 case of Pascual vs. Hon.
Provincial Board of Nueva Ecija [G.R. No. L-11959, October 31, 1959] which was
decided under the 1935 Constitution, wherein the Court rationed that:

“. . . When the people have elected a man to office, it must be assumed that they did
this with knowledge of his life and character, and that they disregarded or forgave his
faults or misconduct, if he had been guilty of any. It is not for the court, by reason of
such faults or misconduct to practically overrule the will of the people.”

The ruling of the Supreme Court in Aguinaldo vs. Santos, G.R. No. 94115, August
21, 1992, better known as the "Aguinaldo doctrine" instructs that the reelection of a
candidate shall render a pendng administrative case filed against him moot and
academic. This is because reelection operates as a condonation by the electorate of the
misconduct committed by an elective official during his previous term.

In the cases of Salalima vs. Guingona, Jr., G.R. Nos. 117589-92, May 22,
1996 and Mayor Garcia vs. Mojica, G.R. No. 139043, September 10, 1999, the
condonation doctrine was applied by the Court although the payments were made after
the official's election, reasoning that the payments were merely effected pursuant to
contracts executed before said re-election.

In Salalima, the court held that the administrative liability condoned by re-election
covered the execution of the contract and the incidents related
therewith. In Garcia, the Court held that the determinative time element in applying
the condonation doctrine should be the time when the contract was perfected; this
meant that as long as the contract was entered into during a prior term, acts which
were done to implement the same, even if done during a succeeding term, do not
negate the application of the condonation doctrine in favor of the elective official.
In Salumbides, Jr. vs. Office of the Ombudsman, G.R. No. 180917, April 23,
2010, it was clarified that the condonation doctrine would not apply to appointive
officials since, as to them, there is no sovereign will to disenfranchise.

Condonation doctrine abandoned

While the condonation doctrine, as espoused in Pascual, has been carried over in
numerous cases after, the doctrine of stare decisis does not preclude this Court from
revisiting existing doctrine when there are powerful countervailing considerations
against its application.

Pascual was a decision promulgated in 1959. Therefore, it was decided within the
context of the 1935 Constitution which was silent with respect to public accountability,
or of the nature of public office being a public trust. In contrast, the 1987 Constitution
commands public officers to be accountable to the people at all times. (see Section 1,
Article XI of the 1987 Constitution)

The concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is
plainly inconsistent with the idea that an elective local official's administrative liability
for a misconduct committed during a prior term can be wiped off by the fact that he
was elected to a second term of office, or even another elective post. Election is not a
mode of condoning an administrative offense, and there is simply no constitutional
or statutory basis in our jurisdiction to support the notion that an official elected for a
different term is fully absolved of any administrative liability arising from an offense
done during a prior term. In this jurisdiction, liability arising from administrative
offenses may be condoned bv the President in light of Section 19, Article VII of the
1987 Constitution which was interpreted in Llamas v. Orbos to apply to administrative
offenses.

For local elective officials, the grounds to discipline, suspend or remove an elective local
official from office are stated in Section 60 of Republic Act No. 7160, otherwise known
as the "Local Government Code of 1991" (LGC). Section 66 (b) of the LGC states that
the penalty of suspension shall not exceed the unexpired term of the elective local
official nor constitute a bar to his candidacy for as long as he meets the qualifications
required for the office. Note, however, that the provision only pertains to the duration
of the penalty and its effect on the official's candidacy. Nothing therein states that
the administrative liability therefor is extinguished by the fact of re-
election. At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of
suspension beyond the unexpired portion of the elective local official's prior term, and
likewise allows said official to still run for re-election.

[see Morales vs. CA and Binay, G.R. Nos. 217126-27, November 10, 2015]

Related Reference(s)

 Arturo B. Pascual Vs. Provincial Board Of Nueva Ecija 106 Phil 466
G.R. No. L-11959 | 1959-10-31
 Rodolfo E. Aguinaldo Vs. Luis Santos, Et Al.
G.R. No. 94115 | 1992-08-21
 Romeo Salalima, et al vs Hon Teofisto Guingona, Jr, et al
G.R. Nos. 117589-92 | 1996-05-22
 Garcia vs. Mojica
G.R. No. 139043 | 1999-09-10
 Atty. Vicente E. Salumbides, Jr., et al. Vs. Office of the Ombudsman, et al.
G.R. No. 180917 | 2010-04-23
 Morales vs. Court of Appeals and Binay
G.R. Nos. 217126-27 | 2015-11-10
 Morales vs. CA and Binay [CONCURRING AND DISSENTING OPINION, BERSAMIN J.]
G.R. Nos. 217126-27 | 2015-11-10

Election Law; Residence And Domicile Are Treated As Synonymous


Residency, as an essential qualification for running for public office, is defined as:

The term "residence" is to be understood not in its common acceptation as referring to


"dwelling" or "habitation," but rather to "domicile" or legal residence, that is, "the
place where a party actually or constructively has his permanent home, where he, no
matter where he may be found at any given time, eventually intends to return and
remain (animus manendi). A domicile of origin is acquired by every person at birth. It is
usually the place where the child's parents reside and continues until the same is
abandoned by acquisition of new domicile (domicile of choice). [Gayo vs
Verceles, G.R. No. 150477, February 28, 2005 citing Coquilla v. Commission on
Elections, G.R. No. 151914, July 31, 2002]

Acquiring permanent residence abroad as a Disqualification for Public Office

Section 68 of the Omnibus Election Code provides in part:

Any person who is a permanent resident of or an immigrant to a foreign country shall


not be qualified to run for any elective office under this Code, unless said person has
waived his status as a permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws.

On the other hand, Sec. 40(f) of the LGC provides that "permanent residents in a
foreign country or those who have acquired the right to reside abroad and continue to
avail of the same right after the effectivity of this Code" are disqualified from running
for any elective local position.

Related Reference(s)

 Coquilla vs COMELEC and Mr Neil Alvarez


G.R. No. 151914 | 2002-07-31
 Lazaro Gayo vs. Violeta Verceles
G.R. No. 150477 | 2005-02-28
Political Law; Constitutional Law; Executive Department; Powers; Power
Of Removal
As a general rule, the power of removal may be implied from the power of appointment.
However, the President cannot remove officials appointed by hum where the Constitution
prescribes methods of separation of such officers from public service. Such as, Chairmen and
Commissioners of Constitutional who can be removed by impeachment. [Nachura, supra]

Members of the career service of the Civil Service who are appointed by the President may be
directly disciplined by him, provided that the same is for cause and in accordance with procedure
by law. [Villaluz v. Zaldivar,G.R. No. L-22754, Dec. 31, 1965] Note that officers such as
members of the Cabinet whose continuity in office depends upon the pleasure of the President
may be replaced at any time. However, in the legal sense, their separation is effected not by
removal but by expiration of their term. [Alajar v. Alba, G.R. Nos. L-10360 and L-10433,
January 17, 1957]

Related Reference(s)

 Ruben A. Villaluz vs. Calixto Zaldivar, Et Al.,122 Phil. 1091


G.R. No. L-22754 | 1965-12-31

Political Law; Constitutional Law; Legislative Department; Houses Of


Congress
Congress of the Philippines which is consists of a Senate and a House of Representatives. [Sec.
1, Art. VI, 1987 Constitution]

I. Senate

The Senate shall be composed of twenty-four Senators who shall be elected at large by the
qualified voters of the Philippines, as may be provided by law. [Sec. 2, Art. VI, 1987
Constitution]

The term of office of the Senators shall be six years and shall commence, unless otherwise
provided by law, at noon on the thirtieth day of June next following their election. No Senator
shall serve for more than two consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of his service for the
full term of which he was elected. [Sec. 4, Art. VI, 1987 Constitution]

Qualifications of Senators

1. Natural-born citizen
2. At least 35 years old on the day of the election
3. Able to read and write
4. A registered voter
5. Resident of the Philippines for at least 2 years immediately preceding the day of the election. [Sec.
3, Art. VI, 1987 Constitution]

II. House of Representatives

Every voter shall be entitled to two (2) votes: the first is a vote for candidate for member of the
House of Representatives in his legislative district, and the second, a vote for the party,
organizations, or coalition he wants represented in the house of Representatives. [Sec. 10, R.A.
7941]

The House of Representatives are composed of not more than 250 members, unless otherwise
provided by law. [Sec. 5 (1), Art. VI, 1987 Consitution] The Constitution classifies the members
of the House in the following manner: (a) District Representatives, each representing a
congressional district; (b) Party-List Representative, elected through the party-list system; and
(c) sectoral representatives, but these existed only until 1998. [Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer (2011)]

The Members of the House of Representatives shall be elected for a term of three years which
shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following
their election. No Member of the House of Representatives shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected. [Sec. 7, Art. VI, 1987 Constitution]

Qualifications of Representatives

1. Natural-born citizens;
2. At least 25 years old on the day of the election;
3. Able to read and write;
4. Registered voter in the district he seeks to represent;
5. A resident of the said district for at least 1 year immediately preceding the day of the election. [Sec.
6, Art. VI, 1987 Constitution]

Domicile of origin is lost only when there is actual removal of domicile, a bonafide intention of
abandoning the former residence and establishing a new one, and acts which corresponds with
the purpose; in the absence of clear and positive proof of the concurrence of all these, the
domicile of origin should be deemed to continue. The wife does not automatically gain the
husband’s domicile because the term “residence” in Civil law does not mean the same thing in
Political law. [Imelda Romualdez-Marcos v. COMELEC, G.R. No. 119976, September 18,
1995] However, although Oras, Eastern Samar was his domicile of origin, petitioner lost the
same when he became a US citizen after enlisting in the U.S. Navy. [Coquilla v. COMELEC,
G.R. No. 151914, July 31, 2002]
Related Reference(s)

 Montejo vs. Commission On Elections (COMELEC)


G.R. No. 118702 | 1995-03-16
 Imelda Romualdez-Marcos Vs. Commission On Elections (COMELEC)
G.R. No. 119976 | 1995-09-18
 Imelda Romualdez-Marcos vs. Commission On Elections (COMELEC) [CONCURRING
OPINION, PUNO, J.]
G.R. No. 119976 | 1995-09-18
 Imelda Romualdez-Marcos vs. Commission On Elections (COMELEC) [CONCURRING
OPINION, FRANCISCO, J.]
G.R. No. 119976 | 1995-09-18
 Imelda Romualdez-Marcos vs. Commission On Elections (COMELEC) [SEPARATE
OPINION, ROMERO, J.]
G.R. No. 119976 | 1995-09-18
 Imelda Romualdez-Marcos vs. Commission On Elections (COMELEC) [SEPARATE
OPINION, VITUG, J.]
G.R. No. 119976 | 1995-09-18
 Imelda Romualdez-Marcos vs. Commission On Elections (COMELEC) [SEPARATE
OPINION, MENDOZA, J.]
G.R. No. 119976 | 1995-09-18
 Imelda Romualdez-Marcos vs. Commission On Elections (COMELEC) [DISSENTING
OPINION, PADILLA, J.]
G.R. No. 119976 | 1995-09-18
 Imelda Romualdez-Marcos vs. Commission On Elections (COMELEC) [DISSENTING
OPINION, REGALADO, J.]
G.R. No. 119976 | 1995-09-18
 Imelda Romualdez-Marcos vs. Commission On Elections (COMELEC) [DISSENTING
OPINION, DAVIDE, J.]
G.R. No. 119976 | 1995-09-18
 Veterans Federation Party vs COMELEC
G.R. No. 136781 | 2000-10-06
 Ang Bagong Bayani-OFW Labor Party vs Commission on Elections (COMELEC) 359
SCRA 698
G.R. No. 147589 | 2001-06-26
 Coquilla vs COMELEC and Mr Neil Alvarez
G.R. No. 151914 | 2002-07-31
 Ang Bagong Bayani-OFW Labor Party (acronym OFW) vs COMELEC, et al
G.R. No. 147589 | 2003-06-25
 Rogelio Z. Bagabuyo vs. Commission on Elections (COMELEC)
G.R. No. 176970 | 2008-12-08
 Bayan Muna, et al. Vs. Commission on Elections
G.R. No. 179295 | 2009-04-21
 Rodolfo G. Navarro, et al. Vs. Executive Secretary Eduardo Ermita, et al.
G.R. No. 180050 | 2010-02-10
 Rodolfo G. Navarro, et al. Vs. Executive Secretary Eduardo Ermita, et al. [DISSENTING
OPINION, NACHURA J.]
G.R. No. 180050 | 2010-02-10
 Senator Benigno Simeon C. Aquino III and Mayor Jesse Robredo vs. Commission on
Elections (COMELEC)
G.R. No. 189793 | 2010-04-07
 Senator Benigno Simeon C. Aquino III and Mayor Jesse Robredo vs. Commission on
Elections (COMELEC) [DISSENTING OPINION, CARPIO, J.]
G.R. No. 189793 | 2010-04-07
 Senator Benigno Simeon C. Aquino III and Mayor Jesse Robredo vs. Commission on
Elections (COMELEC) [CONCURRING AND DISSENTING OPINION, CARPIO
MORALES, J.]
G.R. No. 189793 | 2010-04-07
 Rodolfo G. Navarro vs. Executive Secretary Eduardo Ermita [RESOLUTION]
G.R. No. 180050 | 2010-05-12
 Rodolfo G. Navarro vs. Executive Secretary Eduardo Ermita [DISSENTING OPINION,
PEREZ, J.]
G.R. No. 180050 | 2010-05-12
 Rodolfo G. Navarro, et al. vs. Executive Secretary Eduardo Ermita [RESOLUTION]
G.R. No. 180050 | 2011-04-12
 Atong Paglaum, Inc. Vs. Commission on Elections [Concurring and Dissenting Opinion C.J.
Sereno]
G.R. No. 203766 | 2013-04-02
 Atong Paglaum, Inc. Vs. Commission on Elections [Separate Concurring Opinion J. Brion]
G.R. No. 203766 | 2013-04-02
 Atong Paglaum, Inc. Vs. Commission on Elections [Concurring Dissenting Opinion, J.
Reyes]
G.R. No. 203766 | 2013-04-02
 Atong Paglaum, Inc. Vs. Commission on Elections [Concurring Dissenting Opinion,
Leonen, J.]
G.R. No. 203766 | 2013-04-02
 RODOLFO G. NAVARRO, VICTOR F. BERNAL, AND RENE O. MEDINA, PETITIONERS,
VS. EXECUTIVE SECRETARY EDUARDO ERMITA, REPRESENTING THE PRESIDENT
OF THE PHILIPPINES; SENATE OF THE PHILIPPINES, REPRESENTED BY THE
SENATE PRESIDENT; HOUSE OF REPRESENTATIVES, REPRESENTED BY THE
HOUSE SPEAKER; GOVERNOR ROBERT ACE S. BARBERS, REPRESENTING THE
MOTHER PROVINCE OF SURIGAO DEL NORTE; GOVERNOR GERALDINE ECLEO
VILLAROMAN, REPRESENTING THE NEW PROVINCE OF DINAGAT ISLANDS,
RESPONDENTS, CONGRESSMAN FRANCISCO T. MATUGAS, HON. SOL T.
MATUGAS, HON. ARTURO CARLOS A. EGAY, JR., HON. SIMEON VICENTE G.
CASTRENCE, HON. MAMERTO D. GALANIDA, HON. MARGARITO M. LONGOS, AND
HON. CESAR M. BAGUNDOL, INTERVENORS.
G.R. No. 180050 | 2011-04-12

Civil Service Law: Coterminous Employment Or Appointment


Coterminous employment or appointment

A coterminous employment status in the public sector is provided and described


under Rule III of CSC Memorandum Circular No. 40, series of 1998, to wit:

"Section 2. Employment Status in General.


xxx
"d. Coterminous - issued to a person whose entrance and continuity in the service is
based on the trust and confidence of the appointing authority or of the head of the
organizational unit where assigned, or co-existent with the incumbent, or limited by the
duration of the project, or co-existent with the period for which an agency or office was
created. Specifically, the categories of co-terminus appointments are :

‘a. co-terminous with the appointing authority;


‘b. co-terminous with the head of organizational unit where assigned ;
‘c. co-terminous with the incumbent;
‘d. co-terminous with the project; and
‘e. coterminous with the life span of the agency."

Security of tenure of coterminous employee

As a general rule, all officers and employees of the Civil Service whose appointments
are under coterminous status shall serve for the full term of the appointing authority,
head of the organizational unit, incumbent, or the duration of the project and life span
of the agency.

However, the security of tenure and the effectivity of appointments of those belonging
to item (a) and (b) are based on the trust and confidence of the appointing authority or
the head of organizational unit where they are assigned. This means that they may be
separated from the service, earlier than the term of office of the appointing
authority once this trust and confidence is lost or upon the separation of the appointing
authority or head of organizational unit, as the case may be.
On the other hand, the security of tenure and the effectivity of the appointment of the
second group of coterminous appointments (c, d, and e) are dependent on the
duration of the service of the incumbent of the position or the duration of the project or
the period for which an agency or office was created. Therefore, these co-terminus
employees may not be removed from the service during the said periods except for
cause. [see CSC Resolution No. 001266, May 24, 2000]

Political Law; Constitutional Law; Executive Department; Privileges,


Inhibitions, Disqualifications
Privileges

The President shall have an official residence. The salaries of the President and Vice-President
shall be determined by law and shall not be decreased during their tenure. No increase in said
compensation shall take effect until after the expiration of the term of the incumbent during
which such increase was approved. They shall not receive during their tenure any other
emolument from the Government or any other source. [Sec. 6, Art. VII, 1987 Constitution]

Case law uses the term presidential privilege to refer to either (1) immunity from suit (i.e.
immunity from judicial processes, or (2) executive privilege.

The privilege of immunity may be invoked only by the President. While the President is immune
from suit, she may not be prevented from instituting it [Soliven v. Makasiar, G.R. No. 82585,
November 14, 1988], but even if the DECS secretary is an alter ego of the President, he cannot
invoke the President’s immunity from suit in a case filed against him because the questioned acts
are not the act of the President but merely those of a department secretary. [Gloria v. Court of
Appeals, G.R. No. 119903, August 15, 2000]. The immunity is co-extensive with tenure and
covers only official duties. After tenure, the Chief Executive cannot invoke immunity from suit
for civil damages arising out of acts done by him while he was President which were not
performed in the exercise of official duties. [Estrada v. Desierto, G.R. Nos. 146710-15, March
2, 2001] This immunity cannot be invoked by a non-sitting president even for acts committed
during his or her tenure. Courts look with disfavor upon the presidential privilege of immunity,
especially when it impedes the search for truth or impairs the vindication of a right. [Saez vs.
Macapagal-Arroyo, G.R. No. 183533, September 25, 2012]

There are, on the other hand, two kinds of Executive Privilege, these are the Presidential
Communications Privilege (President) wherein communications are presumptively privileged;
and the Deliberative Process Privilege (Executive Officials), which refers to materials that
comprise part of a process by which governmental decisions and policies are formulated. [Neri v.
Senate, G.R. No. 180843, March 25, 2008] Executive privilege is basically the power of the
President to withhold certain types of information from the courts, the congress, and ultimately
the public.

The court had the chance to enumerate the matters covered by the privilege, these are: (1)
Conversations and correspondence between the President and the public official covered by an
executive order; (2) Military, diplomatic and other national security matters which in the interest
of national security should not be divulged; (3) Information between inter-government agencies
prior to the conclusion of treaties and executive agreements; (4) Discussion in close-door
Cabinet meetings; (5) Matters affecting national security and public order. [Senate v. Ermita,
G.R. No. 169777, April 20, 2006]In a subsequent case, the Court handed out another decision
regarding the matter, it held, that Presidential communication is presumptively privileged; but
the presumption is subject to rebuttal. Thus, whoever challenges it, must show good cause and
valid reasons related to the public welfare. In that case, the court ruled against the senate for
failing to overcome this presumption. It reasoned that the communications between the president
and operationally proximate advisers are presumed to be privileged. [Neri v. Senate, supra]

Prohibitions/Inhibitions

Aside from those mentioned in Sec. 6 of Art. VII, “[T]he President, Vice-President, the Members
of the Cabinet, and their deputies or assistants shall not unless otherwise provided in this
Constitution, hold any other office or employment during said tenure. They shall not, during
their tenure, directly or indirectly practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or special privilege granted by the
government or any subdivision, agency, or instrumentality thereof, including any government-
owned or controlled corporation or their subsidiaries. They shall strictly avoid conflict of interest
in the conduct of their office

The spouse and relatives by consanguinity or affinity within the forth civil degree of the
President shall not during his tenure be appointed as members of the Constitutional Commission,
or the Office of the Ombudsman, or as Secretaries, Under Secretaries, Chairmen or Heads of
bureaus or offices, including government-owned and controlled corporations and their
subsidiaries. [Sec. 13, Art. VII, 1987 Constitution]

Based on the preceding provision, the Supreme Court declared as unconstitutional E.O. No 284,
which allowed Cabinet members to hold two other offices in government. The prohibition on the
President and his official family is all-embracing and covers both public and private office
employment, not being qualified by the phrase “in the Government”. This is proof of the intent
of the Constitution to treat them as a class by itself and to impose upon said class stricter
prohibitions. [Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22,
1991] The said prohibition does not, however, apply to posts occupied by Executive officials
without additional compensation. Precisely because, these do not comprise as “any other office”
within the contemplation of the prohibition. The ex-officio position being actually and in legal
contemplation part of the principal office, it follows that the official concerned has no right to
receive additional compensation for his services in said position. [National Amnesty
Commission v. Commission on Audit, G.R. No. 156982, September 8, 2004]

Related Reference(s)

 Civil Liberties Union (CLU) vs. Executive Secretary 194 SCRA 317
G.R. No. 83896 | 1991-02-22
 Gloria vs Court of Appeals
G.R. No. 119903 | 2000-08-15
 Estrada vs. Desierto, et al.
G.R. Nos. 146710-15 | 2001-03-08
 Estrada vs. Desierto (Resolution on MR)
G.R. Nos. 146710-15 | 2001-04-03
 Brillantes, Jr vs COMELEC
G.R. No. 163193 | 2004-06-15
 Senate of the Philippines vs. Ermita 488 SCRA 1
G.R. No. 169777 | 2006-04-20
 [2/3] Senate of the Philippines, et al. vs. Eduardo R. Ermita etc.
G.R. No. 169777 | 2006-04-20
 In the Matter of the Petition for the Writ of Amparo and the Writ of Habeas Data in favor of
Francis Saez, Francis Saez, petitioner versus Gloria Macapagal Arroyo, et al., respondents
G.R. No. 183533 | 2012-09-25
 National Amnesty Commission vs. Commission on Audit (COA)
G.R. No. 156982 | 2004-09-08
 PIMENTEL vs. CONGRESS
G.R. No. 163783 | 2004-06-22
 Lopez vs. Senate of the Philippines et al. [Minute Resolution]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [Resolution]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [SEPARATE OPINION, DAVIDE, JR., C.J.]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [SEPARATE OPINION, PUNO, J.]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [SEPARATE OPINION, QUISUMBING, J.]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [SEPARATE OPINION, CARPIO MORALES, J.]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [SEPARATE OPINION, TINGA, J.]
G.R. No. 163556 | 2004-06-08
 Lopez vs. Senate of the Philippines et al. [CONCURRING OPINION, CALLEJO, J.]
G.R. No. 163556 | 2004-06-08

Prohibition On Double Compensation


The prohibition on double compensation under the present 1987 Constitution covers
two concepts:

(1) the blanket prohibition of paragraph 2, Section 7, Article IX-B on all government
employees , whether elected or appointed, against holding multiple government
offices, unless otherwise allowed by law or the primary functions of their positions

(2) the stricter prohibition under Section 13, Article VII on the President and his official
family from holding any other office, profession, business or financial interest, whether
government or private, unless allowed by the Constitution.

Section 56 of the Administrative Code of 1987 reiterate the constitutional prohibition


against multiple positions in the government and receiving additional or double
compensation:

SEC. 56. Additional or Double Compensation. -- No elective or appointive public officer


or employee shall receive additional or double compensation unless specifically
authorized by law nor accept without the consent of the President, any present,
emolument, office, or title of any kind form any foreign state.

Pensions and gratuities shall not be considered as additional, double or indirect


compensation.

Ex-officio positions

In Civil Liberties Union vs. Executive Secretary, G.R. No. 83896, February 22,
1991, the court held that the prohibition under Section 13, Article VII is not to be
interpreted as covering positions held without additional compensation in ex-officio
capacities as provided by law and as required by the primary functions of the concerned
official's office. The term ex-officio means "from office; by virtue of office." xxx The ex-
officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and
covered by the compensation attached to his principal office

Accordingly, cabinet secretaries, including their deputies and assistants, who hold
positions in ex officio capacities, are proscribed from receiving additional compensation
because their services are already paid for and covered by the compensation attached to
their principal offices. Thus, in the attendance of the NAC meetings, the ex
officio members were not entitled to, and were in fact prohibited from, collecting extra
compensation, whether it was called per diem, honorarium, allowance or some other
euphemism. Such additional compensation is prohibited by the Constitution.

Appointment vs. Designation

There is a considerable difference between an appointment and designation. An


appointment is the selection by the proper authority of an individual who is to exercise
the powers and functions of a given office; a designation merely connotes an imposition
of additional duties, usually by law, upon a person already in the public service by virtue
of an earlier appointment.

Designation does not entail payment of additional benefits or grant upon the person so
designated the right to claim the salary attached to the position. Without an appointment,
a designation does not entitle the officer to receive the salary of the position. The legal
basis of an employee's right to claim the salary attached thereto is a duly issued and
approved appointment to the position,and not a mere designation. [ see National
Amnesty Commission vs. Commission on Audit, G.R. No. 156982 September 8,
2004]

Refund of disallowed amounts

With regard to the disallowance of salaries, emoluments, benefits, and allowances of


government employees, prevailing jurisprudence provides that recipients or payees need
not refund these disallowed amounts when they received these in good faith. Government
officials and employees who received benefits or allowances, which were disallowed, may
keep the amounts received if there is no finding of bad faith and the disbursement was
made in good faith. [Maritime Industry Authority vs. COA, G.R. No. 185812,
January 13, 2015]

Related Reference(s)

 Civil Liberties Union (CLU) vs. Executive Secretary 194 SCRA 317
G.R. No. 83896 | 1991-02-22
 National Amnesty Commission vs. Commission on Audit (COA)
G.R. No. 156982 | 2004-09-08
 MARITIME INDUSTRY AUTHORITY, PETITIONER, VS. COMMISSION ON AUDIT,
RESPONDENT.
G.R. No. 185812 | 2015-01-13
 MARITIME INDUSTRY AUTHORITY, PETITIONER, VS. COMMISSION ON AUDIT,
RESPONDENT. [CONCURRING OPINION BRION, J.]
G.R. No. 185812 | 2015-01-13

Practice Of Law (Law Practice)


The Supreme Court has the exclusive and constitutional power with respect to admission to the practice
of law in the Philippines and any member of the Philippine Bar in good standing may practice law
anywhere and before any entity, whether judicial or quasi-judicial or administrative, in the Philippines.

What constitutes "practice of law"

Practice of law means any activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. "To engage in the practice of law is to perform those
acts which are characteristics of the profession. Generally, to practice law is to give notice or render any
kind of service, which device or service requires the use in any degree of legal knowledge or skill."
[see Cayetano vs Monsod,G.R. No. 100113, September 3, 1991]

"The practice of law is not limited to the conduct of cases or litigation in court; it embraces the
preparation of pleadings and other papers incident to actions and special proceedings, the management
of such actions and proceedings on behalf of clients before judges and courts, and in addition,
conveying. In general, all advice to clients, and all action taken for them in matters connected with the
law incorporation services, assessment and condemnation services contemplating an appearance before
a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in bankruptcy and
insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice, as do the preparation and drafting of legal
instruments, where the work done involves the determination by the trained legal mind of the legal
effect of facts and conditions."

"Practice of law under modern conditions consists in no small part of work performed outside of any
court and having no immediate relation to proceedings in court. It embraces conveyancing, the giving of
legal advice on a large variety of subjects, and the preparation and execution of legal instruments
covering an extensive field of business and trust relations and other affairs. Although these transactions
may have no direct connection with court proceedings, they are always subject to become involved in
litigation. They require in many aspects a high degree of legal skill, a wide experience with men and
affairs, and great capacity for adaptation to difficult and complex situations. These customary functions
of an attorney or counselor at law bear an intimate relation to the administration of justice by the
courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between
that part of the work of the lawyer which involves appearance in court and that part which involves
advice and drafting of instruments in his office. It is of importance to the welfare of the public that these
manifold customary functions be performed by persons possessed of adequate learning and skill, of
sound moral character, and acting at all times under the heavy trust obligations to clients which rests
upon all attorneys."

The practice of law includes such appearance before the Patent Office, the representation of applicants,
oppositors, and other persons, and the prosecution of their applications for patent, their oppositions
thereto, or the enforcement of their rights in patent cases.
[see Philippine Lawyer's Association vs. Celedonio Agrava, G.R. No. L-12426, February 16, 1959]
(citations omitted)

Elements of "practice of law"

There are several factors determinative of whether a particular activity constitutes "practice of law":

1. Habituality. The term 'practice of law' implies customarily or habitually holding one's self out to the
public as a lawyer such as when one sends a circular announcing the establishment of a law office for
the general practice of law , or when one takes the oath of office as a lawyer before a notary public, and
files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in
the country

Practice is more than an isolated appearance for it consists in frequent or customary action, a succession
of acts of the same kind. In other words, it is a habitual exercise.

2. Compensation. Practice of law implies that one must have presented himself to be in the active and
continued practice of the legal profession and that his professional services are available to the public
for compensation, as a service of his livelihood or in consideration of his said services. Hence, charging
for services such as preparation of documents involving the use of legal knowledge and skill is within the
term 'practice of law' and, one who renders an opinion as to the proper interpretation of a statute, and
receives pay for it, is to that extent, practicing law. If compensation is expected, `all advice to clients and
all action taken for them in matters connected with the law; are practicing law.

3. Application of law, legal principle, practice, or procedure which calls for legal knowledge, training
and experience is within the term `practice of law'.

4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-
client relationship. Hence, where a lawyer undertakes an activity which requires knowledge of law but
involves no attorney-client relationship, such as teaching law or writing law books or articles, he cannot
be said to be engaged in the practice of his profession or a lawyer

[see Dissenting Opinion of Justice Padilla in Cayetano vs Monsod,G.R. No. 100113, September 3, 1991]
(citations omitted)

Related Reference(s)

 Philippine Lawyer's Association vs. Celedonio Agrava 105 Phil 173


G.R. No. L-12426 | 1959-02-16
 Renato L. Cayetano vs. Christian Monsod 201 SCRA 210
G.R. No. 100113 | 1991-09-03
 Renato L. Cayetano vs. Christian Monsod, et al. [CONCURRING OPINION, NARVASA, J.]
G.R. No. 100113 | 1991-09-03
 Renato L. Cayetano vs. Christian Monsod, et al. [DISSENTING OPINION, PADILLA, J.]
G.R. No. 100113 | 1991-09-03
 Renato L. Cayetano vs. Christian Monsod, et al. [DISSENTING OPINION, CRUZ, J.]
G.R. No. 100113 | 1991-09-03
 Renato L. Cayetano vs. Christian Monsod, et al. [DISSENTING OPINION, GUTIERREZ, J.]
G.R. No. 100113 | 1991-09-03