Katrina Nessa Abad The Law on Public Officers, Civil Service Laws, Election Laws Prof. Gisella N.

Dizon-Reyes Introduction - Concepts and Principles A. Public Office and Public Officers 1. Definitions a. Mechem, Floyd (A treatise on the Law of Public Officer and Public Offices, 1890) A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. The characteristics of a public office, according to Mechem, include the: o delegation of sovereign functions, o its creation by law and not by contract, o an oath, o salary, o continuance of the position, o scope of duties, and o the designation of the position as an office. b. Administrative Code (Exec. Order No. 292) Sec. 1. Declaration of Policy. - The State shall insure and promote the Constitutional mandate that appointments in the Civil Service shall be made only according to merit and fitness; that the Civil Service Commission, as the central personnel agency of the Government shall establish a career service, adopt measures to promote morale, efficiency, integrity, responsiveness, and courtesy in the civil service, strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability; that public office is a public trust and public officers and employees must at all times be accountable to the people; and that personnel functions shall be decentralized, delegating the corresponding authority to the departments, offices and agencies where such functions can be effectively performed. Sec. 6. Scope of the Civil Service. - (1) The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. Sec. 1. Scope. - This Book shall be applicable to all agencies as defined in the next succeeding section, except the Congress, the Judiciary, the Constitutional Commissions, military establishments in all matters relating exclusively to Armed Forces personnel, the Board of Pardons and Parole, and state universities and colleges. c. Revised Penal Code Art 203. Who are public officers? For the purpose of applying the provisions of this and the preceding titles of this book, any person who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Philippine Government, or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official or any rank or class, shall be deemed to be a public officer. 2. Purpose and Nature - Mechem describes the delegation to the individual of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not. a. Public Office, as a Public Trust (1987 Constitution, Art. XI) Holders are regarded as public servants Holders subject to highest standards of accountability and service. o Public office is public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, lead modest lives. o The only justification for his continuance in such office is his ability to advance public end AND contribute to the public welfare. o Code of Conduct of Ethical Standards for Public Officers: Every Public Officer shall at all times uphold public interest over his/her personal interest. b. Public Office, not Property Holder subject to removal or suspension according to law. o Public office = public trust. Precludes any proprietary claim to public office.

o Public office is not property. There is no denial of due process when: Office is abolished before expiration of term Removal/suspension according to law Passage of statute limiting/reducing his compensation No property rights in the books and papers pertaining to his office Holder without any vested right in any public office. Holders right in nature of privilege entitled to protection. o He may be protected from wrongful interference of others o If right to termination is limited to specified cause, puboff has the right to be heard o Limited conception as property right requiring Due Process: When the controversy relates to the question as to which of two persons is entitled to the position. Holders right personal to him. o Cannot be acquired by heirs upon the puboffs death c. Public Office, not a Contract The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer. Creates no contractual relation between holder and public PubOff exists by virtue of some law. It is not a natural right. It exists where it exists at all. Generally entitles holder to a compensation. Salary is mere incident and forms no part of the office, it is not a necessary criterion for determining the nature of the position (Laurel v Desierto) d. Security of Tenure in Public Office as property for purposes of due process - Public Office exists by virtue of some law. It is not a natural right. It exists where it exists at all. National Land Titles and Deeds Registration Administration v. Civil Service Commission FACTS Violeta Garcia was appointed Deputy Register of Deeds VII under permanent status, and was later reclassified to Deputy Register of Deeds III. EO No. 649 (Reorganizing the Land Registration Commission into the NALTDRA) abolished all existing positions in the LRC. Garcia was issued appointment under temporary status for not being a member of the Philippine Bar. She appealed. She was later on terminated for receiving bribery. Her appeal was dropped by the Merit Systems Protection Board due to the expiration of her temporary status. However, the CSC directed that Garcia be restored to her position under the vested right theory, stating that the new requirement of bar membership applied prospectively, or to lawyer positions on or after February 9, 1981, when EO 649 took effect. Petitioner NALTDRA filed a petition for review on certiorari of the resolution of the CSC. It argued that EO 649 abolished all existing positions in the LRC and created new offices which required the issuance of new appointments to qualified office holders. Thus, EO 649 applies to Garcia. ISSUES 1. W/N EO 649 abolished the LRC? YES 2. W/N the abolition was done in good faith? YES 3. W/N Garcia has a vested right in the position? NO RATIO 1. W/N EO 649 abolished the LRC? YES. The question of whether of not a law abolishes an office is one of legislative intent about which there can be no controversy if there is an explicit declaration in the law itself. EO 649 expressly provided for the abolition of existing positions under Section 8, to wit: Abolition of Existing Positions in the Land Registration Commission. All structural units in the LRC and in the registries of deeds, and all positions therein shall cease to exist from the date specified in the implementing order to be issued by the President pursuant to the preceding paragraph. Their pertinent functions, applicable appropriations, records, equipment and property shall be transferred to the appropriate staff or offices therein created.

 Abolition- there is in law no occupant. Thus, there can be no tenure to speak of.
Removal- the post subsists and that one is merely separated therefrom. 2. W/N the abolition was done in good faith? YES The power to reorganize is not absolute. But it is valid if it is pursued in good faith, as when it is for the purpose of economy or to make bureaucracy more efficient. If the newly created office has substantially new, different or additional functions, duties or powers, so that it may be said in fact to create an office different from the one abolished, even though it embraces all or some of the duties of the old office it will be considered as an abolition of one office and the creation or a new or different one. To this end, the requirement of bar membership to qualify for key positions in the NALTDRA was imposed to meet the changing circumstances and new development of the times. 3. W/N Garcia has a vested right in the position? NO Private Garcia did not have such qualification. The additional qualification was not intended to remove her from office. Rather it was a criterion imposed concomitant with a valid reorganization measure There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold it. Except for constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or salary. There is no vested property right to be re-employed in a reorganized office. Petition granted. Secretary of Department of Transportation and Communication v. Mabalot (Buena, J.) FACTS Petitioner DOTC Secretary Jesus B. Garcia issued Memorandum Order No. 96-735 which transferred the regional functions of LTFRB regional office to the DOTC-CAR Regional Office, pending the creation of a regular Regional Franchising and Regulatory Office thereat. Respondent Roberto Mabalot filed a petition for certiorari and prohibition with prayer for preliminary injunction and/or restraining order against petitioner and LTFRB Chairman Lantin before RTC QC. =granted. DOTC Sec Lagdameo issued Department Order No. 97-1025, establishing the DOTC-CAR as the Regional Office of the LTFRB, pursuant to AO No. 36. RTC declared both Orders as null and void for being violative of the Constitutional provisions against encroachment on powers of the legislative department, and enjoining appointive officials from holding any other office or employment in the Government. ISSUES 1. W/N the establishment of DOTC-CAR as the LTFRB Regional Office at the Cordillera Administrative Region is constitutional? YES 2. W/N the Orders are violative of the Sec 7-8, Article IX-B of the Constitution enjoining appointive officials from holding any other office or employment in the Government? NO. RATIO 1. W/N the establishment of DOTC-CAR as the LTFRB Regional Office at the Cordillera Administrative Region is constitutional? YES A public office may be created through any of the following modes: a. by the Constitution b. by law (statute duly enacted by Congress) c. by authority of law. Congress can delegate the power to create positions. Congress has vested power in the President to reorganize executive agencies and redistribute functions. In the instant case, the creation and establishment of the LTFRB-CAR Regional Office was made using the third modeby authority of law. Administrative Order No. 36 Sec. 1 directed the various departments and agencies of government to establish their regional offices in the CAR. GAA for FY 1993, Sec. 62 the President is authorized to effect organizational changes including the creation of offices in the department or agency concerned (Larin v. Executive Secretary). (similar in GAA for FY 1996- Sec. 72, Organizational Changes, GAA for FY 1997 Sec 76, General Provisions) Administrative Code of 1987, EO 292, Book III, Sec 20: Residual Powers- Unless Congress provides otherwise, the

President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above or which are not delegated by the President in accordance with law. PD No. 1416 as amended by PD No. 1772- The President of the Philippines shall have continuing authority to reorganize the National Government. xxx b) abolish departments, offices, agencies or functions which may not be necessary, or create those which are necessary, for the efficient conduct of government functions, services and activities; c) transfer functions, appropriations, equipment, properties, records and personnel from one department, bureau, office, agency or instrumentality to another, xxx f) create, abolish, group, consolidate, merge or integrate entities, agencies, instrumentalities, and units of the National Government, as well as expand, amend, change, or otherwise modify their powers, functions, and authorities, including, with respect to government-owned or controlled corporations, their corporate life, capitalization, and other relevant aspects of their charters. 2. W/N the Orders are violative of the Sec 7-8, Article IX-B of the Constitution enjoining appointive officials from holding any other office or employment in the Government? NO. The organic personnel of the DOTC-CAR were merely designated to perform the additional duties and functions of an LTFRB Regional Office subject to the direct supervision and control of the LTFRB Regional Office, pending the creation of a regular LTFRB Regional Office. To designate a public officer to another position may mean to vest him with additional duties while he performs the functions of his permanent office. Or in some cases, a public officer may be designated to a position in an acting capacity. (Triste v. Leyte State College Board of Trustees) An office or employment held in the exercise of the primary functions of ones principal office is an exception to, not within the contemplation, of the prohibition embodied in Sec 7, Article IX-B. No evidence was presented to clearly establish that the appointive officials shall receive any additional, double or indirect compensation. Decision of RTC is reversed. Praeclaro v. Sandiganbayan (Kapunan, J.) FACTS Petitioner Claro Praeclaro was employed by the DOST through the Chemical Mineral Division of the Industrial Technology Development Institute (ITDI) under a written contract of services as Project Manager to supervise the construction of the ITDI-CMD Building. He was charged against the Sandiganbayan with a violation of Sec. 3(b) of RA 3019, or the Anti-Graft and Corrupt Practices Act for allegedly asking for P200,000 from the construction contractor, Jaime Sta. Maria Construction Company. = guilty beyond reasonable doubt. Petitioner filed a petition for review of the decision of the Sandiganbayan, arguing that he was not a public officer because he was employed by DOST on a written employment contract (contractual basis, for a specific project and fixed period); he did not receive appointment aside from the contract; he did not use bundy clock to record hours of work; and he did not take an oath of office. ISSUE: W/N the Sandiganbayan has jurisdiction over petitioner? YES. Petitioner misconstrues the definition of "public officer" in R.A. No. 3019 which, according to Sec. 2(b) thereof defined public officer as includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the government definition is not restrictive. The terms "classified, unclassified or exemption service" were the old categories of positions in the civil service which have been reclassified into Career Service and Non-Career Service by PD 807 providing for the organization of the Civil Service Commission and by the Administrative Code of 1987. Non-career service in particular is characterized by (1) entrance on bases other than those of the usual test of merit and fitness utilized for the career service; (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. - The Non-Career Service shall include: (1) Elective officials and their personal or confidential staff; (2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or

confidential staff(s); (3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; (4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and (5) Emergency and seasonal personnel. From the foregoing classification, petitioner falls under the non-career service category (formerly termed unclassified or exemption service) of the Civil Service. The fact that petitioner is not required to record his working hours by means of a bundy clock or did not take an oath of office became unessential considerations in view of the above-mentioned provision of law. Decision affirmed. Maniego v. People (Bengzon, J.) FACTS Petitioner Feliciano Maniego, although appointed as a laborer, was placed in charge of issuing summons and subpoenas for traffic violations in the Municipal Court of the City of Manila. He was permitted to write motions for dismissal of prescribed traffic cases against offenders without counsel. He allegedly received P10.00 bribe money from complainant Felix Rabia, in exchange for foregoing the fine against the latter. The CA convicted petitioner of violating Article 210 of the RPC (Direct bribery). Pet filed a petition to review on certiorari the decision of the CA, arguing that he was not a public officer: - the doctrine of the temporary performance of public functions by a laborer should not apply in his case; - his appointment as laborer came from one source, while the designation and delimitation of the functions of his appointment came from another source. ISSUE: W/N petitioner is a public officer? YES. HELD: There can be no question that petitioner was a public officer within the meaning of article 203, which includes all persons "who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Philippine Government, or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official or any rank or class." That definition is quite comprehensive, embracing as it does, every public servant from the highest to the lowest. For the purposes of the Penal Code, it obliterates the standard distinction in the law of public officers between "officer" and "employee". On temporary performance of public functions -The law is clear. For the purposes of punishing bribery, the temporary performance of public functions is sufficient to constitute a person a public official. Indeed, common sense indicates that the receipt of bribe money is just as pernicious when committed by temporary employees as when committed by permanent officials. Judgment affirmed. Laurel v. Desierto (Kapunan, J.) FACTS Anticipating the 100th year of Philippine independence, Presidents Cory Aquino and later Fidel Ramos, through EO 223 and EO 128, created the National Centennial Commission to take charge of the preparations for its celebration. In line with this, the Philippine Centennial Expo 98 Corporation (Expocorp) was created. Petitioner Salvador H. Laurel became the NCC Chair and Expocorp CEO. Alleging anomalies in the public bidding and awarding of contracts to Asia Construction and Development Corp, the Senate Blue Ribbon Committee recommended the prosecution by the Ombudsman of petitioner Laurel. The Fact-finding and Intelliegence Bureau of the Ombudsman also recommended that a formal complaint and preliminary investigation be conducted against petitioner. Petitioner filed an MTD, questioning the Ombudsmans jurisdiction. =denied. Petitioner filed a petition for review of decision of the Ombudsman, arguing: - Expocorp was a private corporation, not a government-owned or controlled corporation. - The NCC was not a public office. - Petitioner, both as Chairman of the NCC and Expocorp, was not a public officer as defined under the AntiGraft & Corrupt Practices Act.

ISSUE: W/N Petitioner is a public officer? YES Mechem: A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office. Petitioner submits that some of these characteristics are not present in the position of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he purportedly did not receive any compensation; and (3) continuance, the tenure of the NCC being temporary. According to Mechem, the delegation to the individual of some of the sovereign functions of government is the most important characteristic in determining whether a position is a public office or not. Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly, the law did not delegate upon the NCC functions that can be described as legislative or judicial. However, the SC concluded that NCC performs executive functions. The executive power "is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance." The executive function, therefore, concerns the implementation of the policies as set forth by law. Sec 15, Art XIV of the Constitution on Education, Science and Technology, Arts, Culture, and Sports- xxx. The State shall conserve, promote. Popularize the nations historical and cultural heritage and resources, as well as artistic creations. NCC performs sovereign functions. It is therefore a public office, and petitioner as its Chair is a public officer. On the fact that petitioner did not receive any compensation: A salary is a usual but not a necessary criterion for determining the nature of the position. It is not conclusive. The salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good. Anyway, under the by-laws of the Expocorp, the CEO is entitled to per diems and compensation. On the fact that the NCC is an ad hoc body: this element of continuance cannot be considered as indispensable, for, if the other elements are present "it can make no difference," says Pearson, C.J., "whether there be but one act or a series of acts to be done, -- whether the office expires as soon as the one act is done, or is to be held for years or during good behavior." Administrative Code of 1987 Sec 2 (14) Officer as distinguished from clerk or employee, refers to a person whose duties not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular function in the exercise of governmental power, officer includes any government employee, agent or body having authority to do the act or exercise that function. The Code of Conduct and Ethical Standards for Public Officials and Employees (RA 6713) Sec 3(b) Public Officials include elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service including military and police personnel, whether they receive compensation, regardless of amount. Petition dismissed, preliminary injunction is lifted. Fernandez v. Sto Tomas (Feliciano, J.) FACTS The Civil Service Commission issued Resolution No. 94-3710, to decentralize the CSC by creating Regional and Field Offices throughout the country, and to streamline its operations. The Resolution re-arranged some of its administrative units, re-allocated certain functions by moving these from one office to another, and transferred personnel from one office to where the functions were transferred. Petitioner Salvador Fernandez, the Director of the Office of Personnel Inspection and Audit was assigned to Region V at Legaspi City, while petitioner de Lima, the Director of the Office of the Personnel Relations was assigned to Region III in San Fernando Pampanga. Petitioners filed a special civil action for certiorari, prohibition and mandamus with temporary restraining order against said Resolution. Argument: the Resolution abolished certain public offices, something which may be done only by the same legislative authority which had created those public offices in the first place. ISSUE: W/N the Resolution violated petitioners right to security of tenure? NO. The Resolution has not abolished nay public office as that term is used in the law of public officers. It is essential to note that none of the changes in organization introduced by the Resolution involved the termination of the relationship of public employment between the Commission and any of its officers and employees. Legislative authority was validly delegated to the Commission by virtue of Sec 17 of the Revised Administrative Code, which expressly authorized the Commission to carry out the changes in the organization as the need arises. The appointments to the staff of the CSC are not appointments to a specified public office but rather appointments to

particular positions or ranks. Such reassignment did not involve any violation of the constitutional right to tenure considering that they retained their positions of Direction IV and would continue to enjoy the same rank, status and salary at their new assigned stations. That security of tenure is an essential and constitutionally guaranteed feature of our Civil Service System, is not open to debate. The mantle of its protection extends not only against removals without cause but also against unconsented transfer which are tantamount to removals which are within the ambit of the fundamental guarantee. However, the availability of that security of tenure necessarily depends, in the first instance, upon the nature of the appointment. Such that the rule which proscribes transfers without consent as anathema to the security of tenure is predicated upon the theory that the officer involves is appointednot merely assignedto a particular station. (Brillantes v. Guevarra). On nature of appointment: Where the appointment does not indicate a specific station, an employee may be transferred or reassigned provided the transfer affects no substantial change in title, rank or salary. Petition dismissed, RTO lifted. Segovia v. Noel (Malcom, J.) FACTS Petitioner Vicent Segovia was justice of peace and was ordered to vacate upon reaching the age 65 by virtue of Act No. 3107. He instituted friendly quo warranto proceeding questioning the right of acting judge Pedro Noel. ISSUE: Whether that portion of Act No. 3107 which provides, that justices of the peace and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty- five years, should be given retroactive or prospective effect? RETROACTIVE RATIO: - Court reviewed the existing laws related to the matter: a. Act No. 136 at the pleasure of the Commission b. Act No. 1450 two years c. Act No. 1627 during good behavior d. Sec 203 and 206 (on Tenure of Office was left unchanged by Act No. 3107) of the Admin Code Though there is no vested right in an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear in which the purpose is stated. A statute operates prospectively only and never retroactively, unless the legislative intent ot the contrary is made manifest either by express terms or by necessary implication. The same rule is followed with reference to public offices. The language of Act No. 3107 amendatory of section 203 of the Administrative Code, gives no indication of retroactive effect. The law signifies no purpose of operating upon existing rights. A proviso was merely tacked on to section 203 of the Administrative Code, while leaving intact section 206 of the same Code which permits justices of the peace to hold office during good behavior. In the absence of provisions expressly making the law applicable to justices of the peace then in office, and in the absence of provisions impliedly indicative of such legislative intent, the courts would not be justified in giving the law an interpretation which would legislate faithful public servants out of office. Judgment affirmed. Dario v. Mison (Sarmiento, J.) FACTS On March 25, 1986, President Corazon Aquino promulgated Proclamation No. 3, "DECLARING A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE..., the mandate of the people to Completely reorganize the government: On May 28, 1986, the President enacted Executive Order No. 17, "PRESCRIBING RULES AND REGULATIONS FOR THE IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM CONSTITUTION." Executive Order No. 17 recognized the "unnecessary anxiety and demoralization among the deserving officials and employees" the ongoing government reorganization had generated.. January 30, 1987, the President promulgated Executive Order No. 127, "REORGANIZING THE MINISTRY OF FINANCE". Among other offices, Executive Order No. 127 provided for the reorganization of the Bureau of Customs and prescribed a new staffing pattern therefor. February 2, 1987, 11 the Filipino people adopted the new Constitution January 6, 1988, incumbent Commissioner of Customs Salvador Mison issued a Memorandum, in the nature of "Guidelines on the Implementation of Reorganization Executive Orders," prescribing the procedure in personnel placement. It also provided that by February 28, 1988, all employees covered by Executive Order 127 and the grace period extended to the

Bureau of Customs by the President of the Philippines on reorganization shall be: a) informed of their re-appointment, or b) offered another position in the same department or agency, or c) informed of their termination. On January 26, 1988, Commissioner Mison addressed several notices to various Customs officials stating that they shall continue to perform their respective duties and responsibilities in a hold-over capacity, and that those incumbents whose positions are not carried in the new reorganization pattern, or who are not re-appointed, shall be deemed separated from the service. A total of 394 officials and employees of the Bureau of Customs were given individual notices of separation. On June 30, 1988, the Civil Service Commission promulgated its ruling ordering the reinstatement of the 279 employees, the 279 private respondents in G.R. No. 85310 Commissioner Mison, represented by the Solicitor General, filed a motion for reconsideration which was denied. Commissioner Mison instituted certiorari proceedings. On November 16, 1988, the Civil Service Commission further disposed the appeal (from the resolution of the Reorganization Appeals Board) of five more employees. Commissioner Mison challenged the Civil Service Commission's Resolution. On June 10, 1988, Republic Act No. 6656, "AN ACT TO PROTECT THE SECURITY OF TENURE OF CIVIL SERVICE OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT REORGANIZATION," was signed into law: Sec. 9. All officers and employees who are found by the Civil Service Commission to have been separated in violation of the provisions of this Act, shall be ordered reinstated or reappointed as the case may be without loss of seniority and shall be entitled to full pay for the period of separation. Unless also separated for cause, all officers and employees, including casuals and temporary employees, who have been separated pursuant to reorganization shall, if entitled thereto, be paid the appropriate separation pay and retirement and other benefits... On June 23, 1988, Benedicto Amasa and William Dionisio, customs examiners appointed by Commissioner Mison pursuant to the ostensible reorganization subject of this controversy, petitioned the Court to contest the validity of the statute. On October 21, 1988, thirty-five more Customs officials whom the Civil Service Commission had ordered reinstated by its June 30, 1988 Resolution filed their own petition to compel the Commissioner of Customs to comply with the said Resolution. Case for the Employees: Cesar Dario, was one of the Deputy Commissioners of the Bureau of Customs until his relief on orders of Commissioner Mison on January 26, 1988. In essence, he questions the legality of his dismissal, which he alleges was upon the authority of Section 59 of Executive Order No. 127 (SEC. 59. New Structure and Pattern. Upon approval of this Executive Order, the officers and employees of the Ministry shall, in a holdover capacity, continue to perform their respective duties and responsibilities and receive the corresponding salaries and benefits unless in the meantime they are separated from government service pursuant to Executive Order No. 17 (1986) or Article III of the Freedom Constitution. incumbents whose positions are not included therein or who are not reappointed shall be deemed separated from the service. Those separated from the service shall receive the retirement benefits to which they may be entitled) a provision he claims the Commissioner could not have legally invoked. He avers that he could not have been legally deemed to be an "incumbent whose position is not included therein or who is not reappointed" to justify his separation from the service. He contends that neither the Executive Order (under the second paragraph of the section) nor the staffing pattern proposed by the Secretary of Finance abolished the office of Deputy Commissioner of Customs, but, rather, increased it to three. Nor can it be said, so he further maintains, that he had not been "reappointed" (under the second paragraph of the section) because "reappointment therein presupposes that the position to which it refers is a new one in lieu of that which has been abolished or although an existing one, has absorbed that which has been abolished." He claims, finally, that under the Provisional Constitution, the power to dismiss public officials without cause ended on February 25, 1987, and that thereafter, public officials enjoyed security of tenure under the provisions of the 1987 Constitution Like Dario, Vicente Feria asserts his security of tenure and that he cannot be said to be covered by Section 59 of Executive Order No. 127, having been appointed on April 22, 1986 - during the effectivity of the Provisional Constitution. He adds that under Executive Order No. 39, "ENLARGING THE POWERS AND FUNCTIONS OF THE COMMISSIONER OF CUSTOMS," the Commissioner of Customs has the power "to appoint all Bureau personnel, except those appointed by the President," and that his position, which is that of a Presidential appointee, is beyond the control of Commissioner Mison for purposes of reorganization. Case for Commissioner Mison: Provisions of Section 16, Article XVIII (Transitory Provisions) explicitly authorize the removal of career civil service employees "not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution. For this reason, Mison posits, claims of violation of security of tenure are allegedly no defense. That contrary to the employees' argument, Section 59 of Executive Order No. 127 is applicable (in particular, to Dario and Feria), in the sense that retention in the Bureau, under the Executive Order, depends on either retention of the position in the new staffing pattern or reappointment of the incumbent, and since the dismissed employees had not been reappointed, they had been considered legally separated. Moreover, Mison proffers that under Section 59 incumbents are considered on holdover status, "which means that all those positions were considered vacant." The Commissioner's twin petitions are direct challenges to three rulings of the Civil Service Commission: (1) the Resolution,

dated June 30, 1988, reinstating the 265 customs employees above-stated; (2) the Resolution, dated September 20, 1988, denying reconsideration; and (3) the Resolution, dated November 16, 1988, reinstating five employees. ISSUE: W/N Section 16 of Article XVIII of the 1987 Constitution allows the Government to remove career public officials under an "automatic"-vacancy-authority? NO RATIO: Section 16 Article XVIII, of the 1987 Consti Sec. 16. Career civil service employees separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy The above provision comes as a mere recognition of the right of the Government to reorganize its offices, bureaus, and instrumentalities. Under Section 4, Article XVI, of the 1935 Constitution: Invariably, transition periods are characterized by provisions for "automatic" vacancies. They are dictated by the need to hasten the passage from the old to the new Constitution free from the "fetters" of due process and security of tenure. As we have seen, since 1935, transition periods have been characterized by provisions for "automatic" vacancies. We take the silence of the 1987 Constitution on this matter as a restraint upon the Government to dismiss public servants at a moment's notice. If the present Charter envisioned an "automatic" vacancy, it should have said so in clearer terms. Plainly the concern of Section 16 is to ensure compensation for "victims" of constitutional revamps - whether under the Freedom or existing Constitution - and only secondarily and impliedly, to allow reorganization. In order to be entitled to the benefits granted under Section 16 of Article XVIII of the Constitution of 1987, two requisites, one negative and the other positive, must concur, to wit: 1. the separation must not be for cause, and 2. the separation must be due to any of the three situations mentioned. By its terms, the authority to remove public officials under the Provisional Constitution ended on February 25, 1987, advanced by jurisprudence to February 2, 1987. It can only mean, then, that whatever reorganization is taking place is upon the authority of the present Charter, and necessarily, upon the mantle of its provisions and safeguards. Hence, it cannot be legitimately stated that we are merely continuing what the revolutionary Constitution of the Revolutionary Government had started. We are through with reorganization under the Freedom Constitution - the first stage. We are on the second stage - that inferred from the provisions of Section 16 of Article XVIII of the permanent basic document. After February 2, 1987, incumbent officials and employees have acquired security of tenure. The present organic act requires that removals "not for cause" must be as a result of reorganization. As we observed, the Constitution does not provide for "automatic" vacancies. It must also pass the test of good faith. As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of a dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever "abolition" is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds. The Court finds that Commissioner Mison did not act in good faith since after February 2, 1987 no perceptible restructuring of the Customs hierarchy - except for the change of personnel - has occurred, which would have justified (all things being equal) the contested dismissals. There is also no showing that legitimate structural changes have been made - or a reorganization actually undertaken, for that matter - at the Bureau since Commissioner Mison assumed office, which would have validly prompted him to hire and fire employees. With respect to Executive Order No. 127, Commissioner Mison submits that under Section 59 thereof, "Those incumbents whose positions are not included therein or who are not reappointed shall be deemed separated from the service." He submits that because the 394 removed personnel have not been "reappointed," they are considered terminated. To begin with, the Commissioner's appointing power is subject to the provisions of Executive Order No. 39. Under Executive Order No. 39, the Commissioner of Customs may "appoint all Bureau personnels except those appointed by the President." Thus,with respect to Deputy Commissioners Cesar Dario and Vicente Feria, Jr., Commissioner Mison could not have validly terminated them, they being Presidential appointees. That Customs employees, under Section 59 of Executive Order No. 127 had been on a mere holdover status cannot mean that the positions held by them had become vacant. The occupancy of a position in a hold-over capacity was

conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to February 2, 1987 when the 1987 Constitution became effective. After the said date the provisions of the latter on security of tenure govern. NOTES: The President could have validly removed government employees, elected or appointed, without cause but only before the effectivity of the 1987 Constitution on February 2, 1987. Section 59 (on non-reappointment of incumbents) of Executive Order No. 127 cannot be a basis for termination. In such a case, dismissed employees shall be paid separation and retirement benefits or upon their option be given reemployment opportunities From February 2, 1987, the State does not lose the right to reorganize the Government resulting in the separation of career civil service employees provided, that such a reorganization is made in good faith. Mathay, Jr. v. Court of Appeals (Ynares-Santiago, J.) FACTS Civil Service Units were created pursuant to PD No. 51. However, PD 51 was never published in the Official Gazette therefore it was never deemed in force or effect following the Tanada v. Tuvera. A Quezon City Ordinance No. NC-140 was enacted to absorb the personnel of the CSU into the Department of Public Order and Safety. However, due to lack of funds and positions, the regular positions were not filled. Mayor Simon renewed the contracts of the private respondents, but later Mayor Mathay did not renew them. The CSC ordered the reappointment of respondents, pursuant to the provision on absorption in the QC Ordinance. Mayor Mathay filed a petition for certiorari, which was dismissed by the CA. ISSUE: WON CSC has the authority to direct Mathay to reinstate private respondents to DPOS? NO RATIO The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of 1992 which became effective only on January 1, 1992, when the material events in this case transpired. Applying the said law, we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140 and in so doing ordered petitioner to "reinstate" private respondents to positions in the DPOS. Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council or sanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be usurped by the city council or sanggunian through the simple expedient of enacting ordinances that provide for the "absorption" of specific persons to certain positions. In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU into the DPOS without allowance for the exercise of discretion on the part of the City Mayor, the Court of Appeals makes the sweeping statement that "the doctrine of separation of powers is not applicable to local governments." We are unable to agree. The powers of the city council and the city mayor are expressly enumerated separately and delineated by B.P. 337. The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief executive. The power of the city council or sanggunian, on the other hand, is limited to creating,consolidating and reorganizing city officers and positions supported by local funds. The city council has no power to appoint. This is clear from Section 177 of B.P. 337 which lists the powers of the sanggunian. The power to appoint is not one of them. Expressio inius est exclusio alterius. Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it would have said so in no uncertain terms. By ordering petitioner to "reinstate" private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for that of the appointing power. This cannot be done. In a long line of cases, we have consistently ruled that the Civil Service Commission's power is limited to approving or disapproving an appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority. Even assuming the validity of the Ordinance, the absorption contemplated therein is not possible. Since the CSU never legally came into existence, the private respondents never held permanent positions. The appointments were invalid ab initio. It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a law expressly or impliedly creating and conferring it. Since PD 51 never became law, it could not be a source or rights. Neither could it impose duties. It could not afford protection. It did not create an office. It is as inoperative as though it was never passed. A void appointment cannot give rise to security of tenure on the part of the holder of the appointment (Debulgado v. CSC).