LAW ON PUBLIC OFFICERS

Atty. Noel Ostrea

February 2018
 PARTIAL TOPIC OUTLINE
• General Principles
• Modes and Kinds of Appointment (incl. De Facto Officers)
• Eligibility and Qualification Requirements
• Disabilities and Inhibitions of Public Officers
• Powers and Duties of Public Officers
• Rights of Public Officers
• Liabilities of Public Officers, including preventive suspension, illegal
dismissal, reinstatement and back salaries
 OUTLINE (2)
• Immunity of Public Officers
• Termination of Official Relations
• The Civil Service
• Accountability of Public Officers
– Impeachment
– Ombudsman (OMB)
– Sandiganbayan
• Term Limits
 STRUCTURE OF ART. XI
Art. XI: Accountability of Public Officers
– Section 1: Public office is a public trust.
– How do we enforce this principle of public accountability?
1. Impeachment
• Impeachable Officers and the Procedure for Impeachment (Sec. 2, 3)
2. The Anti-Graft Court/the Sandiganbayan (Sec. 4)
3. The Ombudsman (OMB)
• Qualifications of the OMB and Deputies; the OMB as the protectors of the people;
Powers of OMB (Sec. 8, 12 and 13)
4. Sec. 17: SALN: The Statement of Assets, Liabilities and NW
GENERAL PRINCIPLES:
DEFINITION, ELEMENTS, FIRST PRINCIPLE AND
CHARACTERISTICS
 WHO ARE PUBLIC OFFICERS?

Those who are invested with public offices.

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

• An office created and conferred by law*

(a right, authority and duty)
• Investing an individual with a delegation of a
portion of the sovereign functions of
government1
• To be exercised for public benefit.
NB: Generally, the creation of public offices is a
legislative function.
 1st ELEMENT

An office created and conferred by

law* (a right, authority and duty)
 2nd, 3rd ELEMENTS OF PUBLIC OFFICE

Investing an individual with a

delegation of a portion of the
sovereign functions of government1
To be exercised for public benefit.
 FIRST PRINCIPLE
Public office is a 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
And lead modest lives. (Sec. 1, Art. XI.)
 CHARACTERISTICS
OF PUBLIC OFFICE
• A public office is a public trust.
• The holders thereof are accountable to the
people.
• The holder is a holder, not an owner.
• The holder has no vested right in any public office.
• His office is not property.1
• It cannot be inherited.2
The essential element of a public office is that
a. It cannot be inherited
b. It involves an investiture of part of the sovereign
functions of government
c. It is a public trust

Answer:
The essential element of a public office is that
a. It cannot be inherited
b. It involves an investiture of part of the sovereign
functions of government
c. It is a public trust

Answer: B
Which of the following is characteristic of a public office?

a. The holder has a vested right in a public office

b. A public office is not a property
c. A public office can be inherited
d. The holder of a public office is an owner
THE EXPO FILIPINO
 ?
WHAT IS THE ESSENTIAL ELEMENT
THAT DISTINGUISHES A PUBLIC OFFICER
 EXPO FILIPINO 2
• In June 1991, President Corazon AQUINO issued AO
223 constituting a Committee to prepare for the
1998 National Centennial Celebration.
• Thereafter, President FVR issued EO 128
reconstituting the Committee, renaming it the NCC
and appointing former Vice-President Salvador
LAUREL as the Chair. Presidents Diosdado
MACAPAGAL and Corazon AQUINO were also
named Honorary Chairpersons.
 EXPO FILIPINO 3
• EXPOCORP (the Philippine Centennial Expo’98 Corporation)
was created. And former Vice-President Salvador H. Laurel
was the elected CEO of EXPOCORP.
• In Aug 1998, Senator Ana COSETENG delivered a privilege
speech denouncing alleged anomalies in the construction
and operation of the Centennial Project.
• Referred to the Senate Blue Ribbon Committee for
investigation
 EXPO FILIPINO: ISSUES

• Was the construction of the Expo Filipino in the

CEZA attended by various anomalies?
• Did former Vice-President Salvador LAUREL incur
any liability therefor (as the CEO of EXPOCORP
and the Chairman of the National Centennial
Commission?)
 RULING

The NCC performs executive functions. It

helped execute the policy to promote the
centennial. And it assisted in the economic
development of Central Luzon. It is therefore
a public office.
 RULING

• A salary is a usual but not necessary criterion

to determine the nature of the position. It is
a mere incident. It is not part of the office.

• While the NCC was an “ad hoc” body, the element

of continuance cannot be considered
indispensable if the other elements of a public
office are present.
What appears to be a public office loses its character as a
public office due to
a. The receipt of little or nominal compensation
b. Valid abolition of office
c. Membership in the career or non-career service
d. The temporary character of the office

Answer:
What appears to be a public office loses its character as a
public office due to
a. The receipt of little or nominal compensation
b. Valid abolition of office
c. Membership in the career or non-career service
d. The temporary character of the office

Answer: B
DE FACTO OFFICER
 DE FACTO OFFICER
ELEMENTS AND DOCTRINE
A DE FACTO OFFICE DE FACTO DOCTRINE

• Existence of a de jure Q: What is the effect of

office acts of de facto officers
• Colorable title, and – Considered valid and
binding
• Physical possession of
the office. Q: What is the right of de
facto officers to salaries?
 DE FACTO OFFICE

• Existence of a de jure office

• Colorable title, and
• Physical possession of the office.
 DE FACTO DOCTRINE
Q: Q:
What is the effect of What is the right of de
acts of de facto facto officers to
officers salaries?
–Considered valid and
binding
• Occupant
1. Without a known 3. Under a void
appointment or appointment or
election election, or
2. Under color of a 4. Under an election or
known and valid appointment
appointment or pursuant to an
election, but lacking a unconstitutional law.
condition precedent
 Ong v Topacio: De Facto Officer
Who is a de facto officer?

One who is:

• In possession of the office and discharging its
duties
• Under color of authority.
 Ong v Topacio: De Facto Officer (2)
What is color of authority?

That derived from an election or

appointment, however irregular or informal,
so that the incumbent is not a mere
volunteer.
 Ong v Topacio (2)
What is the status of an appointee
who is subsequently declared ineligible?

His presumably valid [and previous] appointment

will give him color of title that will confer on him
the status of a de facto officer.
 DE FACTO DOCTRINE?

Where there is no de jure officer, a de facto officer, who

in good faith had possession of the office and
discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office and may
recover the salary, fees and other compensations
attached to the office. (Funa v Agra)
 DE FACTO DOCTRINE
Where there is no de jure officer, a de Elements
facto officer, who in good faith had
possession of the office and
discharged the duties pertaining
1. No de jure officer
thereto, is legally entitled to the
emoluments of the office and may
recover the salary, fees and other
2. Good faith
compensations attached to the
office. (Funa v Agra) 3. Possession of office
and discharge of duties
 DE FACTO DOCTRINE II:
Are the acts of a de facto officer invalid?

NO. The acts of the de facto officer are just as

valid for all purposes as those of a de jure officer,
in so far as the public or third persons who are
interested therein are concerned. (Chaguile)
 DE FACTO: COMPENSATION
Is there a de jure officer?
Possession of title, not office, is decisive.
A de facto officer, not having good title, takes the
salaries at his risk. He must therefore account to
the de jure officer for whatever amount of salary he
received during the period of his wrongful retention of
the public office. (Monroy v CA)
B, the winning candidate for municipal mayor, was proclaimed the winner
and entered into his office. However, his opponent, C filed an action to
annul B’s proclamation, claiming that he, C, was the rightful winner of
election. Just before the completion of B’s term of office, C was
adjudged to be the true winner of the election. And the judgment in
favor of C became final. Can B be ordered to return all the monies he
received as compensation during the time he was holding the office of
municipal mayor?
a) Yes, because he has no right to receive salaries. He is a usurper.
b) Yes, because C is the rightful holder of the office.
c) No, because of the de facto doctrine.
d) No, because B had already received the monies. It is a fait accompli.
A criminal charge under RA 3019, or the anti-Graft and corrupt
Practices Act (AGCPA), prescribes in _____ years

a. 10
b.15
c. 20
d.25
The Philippine National Construction Company is a GOCC formed under the
Corporation Code to undertake large-scale public works projects. Its business
enterprise included design, construction, planning and engineering, or any work
upon buildings, roads, highways, and other earthworks, expressway development
and operations.
A, an Assistant Manager, was charged with 2 counts of estafa thru the falsification of
official documents (PNCC checks) before the Sandiganbayan. Can the criminal
cases against A be dismissed?
a. Yes
b. No
ENTERING INTO PUBLIC OFFICE
 APPOINTMENT
• An act of
designation/
selection (by the
executive officer, etc.
OBB to whom the power
has been delegated) of
the individual to
exercise the powers
and functions of a
given office. 1,2
 APPOINTMENT (2)
• Modes of entry: Election or appointment

• Inherent in the people

• Vested/delegated by the people as contained in
the Constitution or law.
• Generally, an executive function.3
 NATURE AND CHARACTERISTICS

1. It is discretionary
2. It is an executive prerogative
3. It is a political and administrative decision.
Which is the essential element concerning the nature of an
appointment?
a. It is an executive power
b. It is discretionary
c. It is a political and administrative decision

Answer:
Which is the essential element concerning the nature of an
appointment?
a. It is an executive power
b. It is discretionary
c. It is a political and administrative decision

Answer: B
 In an appointment, the choice of the appointing
authority among various candidates can be questioned
based on
a) The next-in-rank rule
b) Grave abuse of discretion
c) A lack of civil service eligibility
 In an appointment, the choice of the appointing
authority among various candidates can be questioned
based on
a) The next-in-rank rule
b) Grave abuse of discretion
c) A lack of civil service eligibility

Answer: B
 CLASSIFICATION OF GOV’T POSITIONS
• Constitutional or statutory • De jure or de facto
• National or local • Competitive or non-
• Executive, legislative or competitive
judicial
• Civil or military
• Lucrative or honorary or
naked
• Discretionary or ministerial
 CONSTITUTIONAL CLASSIFICATION
• Competitive • Non-competitive
–Policy-determining
–Primarily confidential
–Highly technical
THE CIVIL SERVICE
 THE CSC: ITS COMPOSITION
• Administered by a Chairman and two (2)
Commissioners.
• Nominees must be qualified as per the Constitution.
• Not lame ducks.
• Presidential appointees
• Serve a seven (7) year term, w/o reappointment.
• “Rolling” 2 yr. overlap of terms. (Art. IX B 1)
• Covers Chartered GOCCs
• To provide a
professionalized body of
public servants
• To perform the manifold
tasks of government
• Furnish information
required in policy-making.
 APPOINTMENTS IN CS
• The Civil Service embraces all branches,
subdivisions, instrumentalities and agencies
of the government (NG/LG), including
GOCC’s with original charter.
• Widest application of merit system.
• Types: career and non-career service.
 CHARTERED GOCCs
• Covered by civil service law1
• Cannot go on strike
• OMB jurisdiction over offenses committed by their
officers or employees
• Can be directed by OMB to perform or expedite any
act or duty
• Subject to COA audit, pre- and post-
 CAREER SERVICE*
1. Based on merit and fitness determined by
competitive exams1 (open), or based on highly
technical qualifications. (closed)
2. Security of tenure4
3. Opportunity for advancement.
– Cannot engage in any partisan political activity.2
– Includes open and closed career positions.1,3
– Closed career tend to be highly scientific or technical
positions.
 SCOPE; CAREER SERVICE
1. Open Career service • Competitive exams
2. Closed career service • Scientific or highly technical
• USecs, Bureau directors, etc.
3. Career Executive Service
(CES) • Governed by different merit
system
4. AFP
5. Career officers (not #3)
6. Personnel of GOCCs with
original charters, etc.1
 NON-CAREER SERVICE
• Criteria different from open
career service
• Term Limited to:
– Period specified by law
– Coterminous with that of the
appointing authority
– Enduring at his pleasure or
– Limited to duration of project
• Includes:
– Elective officials, personal
and confidential staff
– Department Heads and
officials of Cabinet rank who
serve at the pleasure of the
President
– Chairmen and members of
commissions or boards with
fixed terms, etc.
1. Policy determining • Officer who lays down principal
or fundamental guidelines
2. Primarily • Not only confidence in aptitude
confidential but primarily close intimacy
which insures freedom of
3. Highly technical intercourse
• Requires possession of technical
skill to a superior degree
 WHO CAN DECLARE
(A position primarily confidential, etc.?)
• The CSC, by virtue of the • When this is done
independently by an agency, this
Administrative Code of is an executive or legislative
1987. declaration that is not
• The CSC can supplement the conclusive upon the courts. The
enumeration in the CS true test is the nature of the
position.2
decree.1
 AUTHORITY OF PUBLIC OFFICERS
• Expressly conferred by the • Doctrine of necessary
Act appointing him Implication
• Expressly annexed to the – All powers necessary for the
office by LAW exercise of the express powers are
deemed included in the powers of
• Attached to the office by the office.
common law as incidents
thereof
 TYPES OF POWERS
of PUBLIC OFFICERS
Discretionary Ministerial
• Act involves policy making • Official duty is ministerial
or judgment, when it is left when it is absolute, certain
to the will or judgment of and imperative. It involves
the performer to determine merely the execution of a
how an act shall be
performed. specific duty arising from
fixed and designated facts.
• Excludes whimsical or
arbitrary exercise thereof.
 ROLE OF CSC
The only function of the Civil Service Commission x x x is
to review the appointment in the light of the
requirements of the Civil Service Law, and when it
finds the appointee to be qualified and all other legal
requirements have been otherwise satisfied, it has no
choice but to attest to the appointment. It is a
political question. (Gaspar v. Court of Appeals, October
18, 1990.)
 In an appointment, if the CSC finds that the appointee
lacks the requisite civil service eligibility, this makes the
appointment

a) Void
b) Voidable
c) Temporary
 In an appointment, if the CSC finds that the appointee
lacks the requisite civil service eligibility, this makes the
appointment

a) Void
b) Voidable
c) Temporary
 APPOINTMENT (3): ABS v CONDITIONAL
ABSOLUTE CONDITIONAL
• If absolute, the choice • If conditional, then the
of the appointing appointment is complete
authority is conclusive. only when assent or
confirmation is obtained.
This is the “last act”.
 ALINSUGAY v CA, FACTS1
• Four (4) persons were appointed as laborers by the governor
in various offices of the provincial government of Cebu.
• Afterward, upon advice of the provincial auditor and later,
the CSC, the governor was advised that pursuant to the RAC,
appointments to the unclassified or non-competitive
positions in the provincial service must be approved by the
provincial board to be valid and effective.
 SEC. 2081, RAC
SEC. 2081. Employment of subordinates. — The Provincial Board shall fix the
number of assistants, deputies, clerks, and other employees for the various branches of the
provincial government and in accordance with the Salary Law to fix the rates of salary or wage
they shall receive.
After their number and compensation shall have been thus determined, the
Provincial Governor shall, x x x appoint, upon recommendation of the chief
provincial official concerned, all the subordinate officers and employees in the
various branches of the provincial government whose salaries, compensation or
wages are paid, wholly from provincial funds, in conformity with the provisions of
the Civil Service Law, except x x x (As amended by RA 528.)
• Later, their appointments were disapproved
by the Provincial Board
• It was held that the PB incurred no liability
in not approving their appointments
PRESIDENTIAL
APPOINTMENT
POWER
 SPECIAL MENTION
• The Commission
on Appointments
(CONA)
• The Judicial and
Bar Council (JBC)
Generally, the Presidential power of appointment is
a. Absolute
b. Conditional

Answer:
Generally, the Presidential power of appointment is
a. Absolute
b. Conditional

Answer: A
 Sec. 16, Art. VII, Par. 1, 1st sentence
The President shall nominate and, with the consent of
the Commission on Appointments:
–Appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel
or naval captain, and
–Other officers whose appointments are vested in
him in this Constitution.
 Sec. 16, Art. VII, Par. 1, 2nd, 3rd sentences
He shall also appoint all other officers of the
Government whose appointments are not otherwise
provided for by law, and those whom he may be
authorized by law to appoint.
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.
 Sec. 16, Art. VII, Par. 2
(Ad Interim Appointments)
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until disapproved
by the Commission on Appointments or until the next
adjournment of the Congress.
 SUM: PRES’L APPOINTMENT POWER
• Shall nominate, and with C on A
consent, appoint:
– Heads of the executive
departments 1
– Ambassadors
– Other public ministers and
consuls, OR
– AFP Officers (Col., Navy Capt.)
– And Other officers whose
appointments are vested in the
President by the Constitution. 2
• Shall also appoint officers:
– Whose appointments are not
otherwise provided by law. 3
– Those he is authorized by law
to appoint.4
– As Congress may, by law, vest
in the President5 or others
(Section 16, Art. VII)6
 “LAST ACT”
• Where the power of appointment is absolute, and the
appointee has been determined upon, no further consent or
approval is necessary, and the formal evidence of the
appointment, the commission, may issue at once. Where,
however, the assent or confirmation of some other officer or
body is required, the commission can issue or the
appointment may be complete only when such assent or
confirmation is obtained.
 “LAST ACT” (2)
• In either case, the appointment becomes complete
when the last act required of the appointing power is
performed. Until the process is completed, the
appointee can claim no vested right in the office nor
invoke security of tenure.
 “LAST ACT” (3)

Hence, in the case of CORPUZ, since the last act required

for the completion of his appointment, viz., approval
by the MTRCB itself, was not obtained, as a matter of
fact, the MTRCB ultimately disapproved it, his
appointment ceased to have effect, if at all, and his
services were properly terminated. (Corpuz v CA)
 SARMIENTO PRINCIPLE
• The constitutional provision classifies and
identifies four (4) groups of officers of the
Government who can be appointed by the
President.
• Only the first group require CONA
confirmation.
 SARMIENTO PRINCIPLE (2)
–There is a difference in language.
–The first sentence speaks of nomination by the
President and appointment by the President with
the consent of the CA, whereas the second sentence
speaks only of appointment by the President.
• Congress cannot by law expand the power of
confirmation of the CONA and require the
confirmation of other appointees apart from
those stipulated in the Constitution.1
 OLD BAR PROBLEM

1. What are the six categories of officials who are subject to the
appointing power of the President? (2%)
2. Name the category/ies of officials whose appointments need
confirmation by the Commission on Appointments? (2%) (1999 Bar)
Which official does not require the confirmation of the
Commission on Appointments?

a) Ambassadors
b) A Navy Captain
c) Members of the Judicial and Bar Council
d) A qualified party-list representative
President N appointed A as his DENR Secretary but failed to submit A’s
name to the Commission on Appointments for its consent. A’s
appointment is ________. Is he entitled to receive a salary? Y/N
a. Valid
b. Conditional
c. Void

Answer:
Which of the following public officials require confirmation?
a. A Presidential adviser holding cabinet rank
b. The Ombudsman and his deputies
c. The Commissioner of Customs

Answer:
Which of the following public officials require confirmation?
a. A Presidential adviser holding cabinet rank
b. The Ombudsman and his deputies
c. The Commissioner of Customs

Answer: None of them.

Which of the following public officials require confirmation?
a. A Presidential adviser holding cabinet rank
b. The Ombudsman and his deputies
c. The Commissioner of Customs
d. Sectoral representatives

Answer: D
When the President appoints a new PNP Chief Superintendent,
his appointment power is
a. Absolute
b. Conditional

Answer:
When the President appoints a new PNP Chief Superintendent,
his appointment power is
a. Absolute
b. Conditional

Answer: A
 APPOINTMENTS BY PRESIDENT
Permanent Temporary
• Last until they are • Last until a permanent
lawfully terminated. appointment is issued.
• NB: Section15, Article VII.1
Regular Ad interim
• Made while Congress • Made while Congress
is in session. is not in session (on
recess).1
 STEPS IN APPOINTMENT PROCESS
Regular Ad interim
• Nomination by President • Nomination by President
• Confirmation by CONA • Issuance of the
• Issuance of the Commission
Commission • Acceptance by the
• Acceptance by the appointee
appointee
• Confirmation by CONA
• Oath and assumption of
office1 • Oath and assumption of
office
CAN THE PRESIDENT ISSUE ACTING
APPOINTMENTS WHILE CONGRESS IS
IN SESSION?
YES.
In this case, she appointed several persons as her
Department Secretaries. By its nature, the persons therein
must have her trust and confidence. EO 292 allows her to
appoint “any competent person”.1
President N appointed A as his DENR Secretary but failed to submit A’s
name to the Commission on Appointments for its consent. A’s
appointment is ________. Is he entitled to receive a salary? Y/N
a. Valid
b. Conditional
c. Void

Answer: B, Yes
 CONSTI LIMITATIONS ON
PRESIDENTIAL APPOINTING POWER
• Nepotism1
• Midnight appointments2
• Those relating to an Acting President3
 Section 13(2), Art. VII
The spouse and relatives of the President by
consanguinity or affinity w/in the 4th civil degree of the
President shall not, during his tenure, be appointed as
members of the Constitutional Commissions, or the
Ombudsman, Secretaries, Undersecretaries, Chairmen
or Heads of Bureaus or Offices, including GOCC’s and
their subsidiaries.
 NEPOTISM, Exemptions
(a)Persons employed in a confidential capacity
(b)Teachers
(c)Physicians, and
(d)Members of the Armed Forces of the Philippines. (AFP)
> But the rules on nepotism shall not be applicable to the case of a member of any
family who, after his or her appointment to any position in an office or bureau,
contracts marriage with someone in the same office or bureau, in which event the
employment or retention therein of both husband and wife may be allowed. (Sec.
59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)
To which position can Kris Aquino validly be appointed by the
President?
a. Ombudsman
b. Board Member, MTRCB2
c. Undersecretary for Tourism
d. President/CEO, PNOC1

Answer:
To which position can Kris Aquino validly be appointed by the
President?
a. Ombudsman
b. Board Member, MTRCB2
c. Undersecretary for Tourism
d. President/CEO, PNOC1

Answer: B
 Section 15, Art. VII
Two months immediately before the next
presidential elections and up to the end of his
term, a president or acting president shall not
make appointments, except temporary
appointments to executive positions when
continued vacancies will prejudice public service
or endanger public safety.
By exception, 2 months before the next presidential elections, a
President can make temporary appointments to executive positions
when continued vacancies will
a. Endanger public safety
b. Prejudice public service or endanger public safety
c. Prevent or suppress lawless violence

Answer:
By exception, 2 months before the next presidential elections, a
President can make temporary appointments to executive positions
when continued vacancies will
a. Endanger public safety
b. Prejudice public service or endanger public safety
c. Prevent or suppress lawless violence

Answer: B
DOES THE BAN ON MIDNIGHT
APPOINTMENTS APPLY TO THE
JUDICIARY?
De Castro v. Judicial and Bar Council,
G.R. Nos. 191002 and other cases (en banc)
March 17,2010.1,2
 NO!
1. Based on the structure and styling of the 1987 Constitution
and the language thereof, the prohibition under Sec. 15, Art.
VII does not apply to appointments in the Judiciary. And this
was confirmed by Justice Regalado.
2. The limitations on the Presidential appointing power
contained in Sec. 13-15 of Art. VII, 1987 Constitution refer to
appointments in the executive and not the judicial branch of
government.
 DE CASTRO (2)
3. To hold otherwise would be to undermine the independence
of the Judiciary.
4. There is a Constitutional command to fill the vacancy within
90d under Sec. 4(1), Art. VIII.
• This imperative cannot be excused by relying on the provisions of
the Judiciary Act which provide for the appointment of an Acting
Chief Justice.
 Sec. 14, Art. VII
Appointments extended by an Acting President
shall remain effective, unless revoked by the
elected President w/in 90 days from his
assumption or re-assumption of office.
• Original • When an office is created and is
yet unfilled
• Constructive • The incumbent has “no” legal
right and may be legally
replaced (e.g. De facto)
• Accidental • The incumbent is separated
from the office by any mode
other than expiration of term
(e.g. Death).
• Absolute • Term of office has expired
without a legally qualified
successor.
When the term of office of the Chief Justice expires, this
creates a _____________ vacancy
a. Constructive
b. Absolute
c. Accidental

Answer:
When the term of office of the Chief Justice expires, this
creates a _____________ vacancy
a. Constructive
b. Absolute
c. Accidental

Answer: B
 COMPOSITION OF JBC1
A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a
representative of the Integrated Bar, a professor of law, a
retired Member of the Supreme Court, and a representative
of the private sector.
 When the Constitution says
“a representative of the Congress”,
is it an oversight considering that
Congress is in fact bicameral in nature?
• Ex-oficio Members
– Chief Justice, SC
– SOJ
– Representative of Congress
• SC Clerk (as JBC Secretary)
• Regular Members
– IBP Representative
– Law professor
– Retired member of the SC
– Private sector representative1
 JBC (2)

• Appointment • By President with ConA

approval1
• Tenure
• Four (4) years with
staggered terms
• Salary • As determined by Supreme
• Appropriations Court
• To be taken from SC annual
budget
 JBC FUNCTIONS
• Recommend appointees to the Judiciary1
• Recommend appointees to the OMB and his five (5)
deputies2
• Perform other functions and duties as the Supreme Court
may assign
How many regular members of the Judicial and Bar Council are
there?
a. 3
b. 4
c. 5

Answer:
How many regular members of the Judicial and Bar Council are
there?
a. 3
b. 4
c. 5

Answer: B
Which members of the Judicial and Bar Council require
confirmation by the Commission on Appointments after
appointment by the President?
a. All of them
b. Ex-oficio members
c. Regular

Answer:
Which members of the Judicial and Bar Council require
confirmation by the Commission on Appointments after
appointment by the President?
a. All of them
b. Ex-oficio members
c. Regular

Answer: C
• On the military:
• No member of the AFP in the active
service can be appointed or
designated in any capacity to a civilian
position in gov’t., including GOCC’s.1
• No member of the military shall
engage directly or indirectly in
any partisan political activity,
except to vote. (Art. XVI, Sec.
5(3).)2
• Congress is generally
empowered to prescribe
qualifications or
disqualifications for public
office.
– Reasonable
– In accord with law
• Exception: Offices created by
the Constitution
• In such cases, the constitutional
criteria are exclusive.
• Generally, holders of public
office are presumed to be
eligible and qualified.
• Thus, the right to public office
should be liberally construed in
favor of eligibility.
• Time may be a factor regarding the time when a
qualification must be possessed: upon election or
appointment, upon proclamation or assumption.1
• Refers to qualifications for
elective office
• Aside from materiality, there
must be a deliberate attempt to
mislead, misinform, or hide a
fact which would otherwise
render a candidate ineligible.
(Salcedo II v. COMELEC (en
banc), 16 August 1999.)
Prohibiting political dynasties is

a. A utopic dream
b. A statutory mandate
c. A declared national policy
d. A difficult undertaking
18. C was designated the Officer-In-Charge of the Mines and
Geosciences Bureau. His previous boss, the Bureau Head, had
gone on terminal leave. After 1 year, D was appointed as the
Bureau Head of the MGSB. C contends that he has a better
right to the office, not D. Is C correct?

a) Yes, because C’s appointment was permanent

b) Yes, because C’s removal was without basis
c) No, because C’s appointment was temporary
d) No, because there was no vacancy in the position at the time of
D’s appointment
20. When the choice of the appointing authority is
conclusive, the power of the appointing power is

a) Absolute
b) Conditional
c) Temporary
d) Permanent
21. In an appointment, the authority of the Civil Service
Commission is

a) To annul an appointment for lack of a requisite

qualification/eligibility
b) To determine if an appointee possesses the requisite
qualification/eligibility
c) To revoke an appointment because another is better
qualified
d) To determine the person next-in-rank for purposes of the
appointment
22. A permanent appointment is:

a) One made while Congress is in session

b) One made while Congress is not in session
c) One which lasts until a permanent appointment is
issued
d) One which lasts until the appointee is lawfully
terminated
23. A group of Presidential appointees which requires
confirmation is

a) Those whose appointments are vested in the President

by the Constitution
b) Those whose appointments are not otherwise provided
by law
c) Those whom Congress may, by law, vest in the
President
d) Those whom the President is authorized by law to
appoint
24. The second step in an ad interim appointment
process after nomination is

a) Confirmation by the Commission on

Appointments
b) Acceptance by the appointee
c) Oath and assumption of office
d) Issuance of the Commission
25. Which office is not covered by the constitutional
prohibition against the appointment of relatives within
the 4th civil degree?

a) Assistant Secretaries
b) Members of the Constitutional Commissions
c) The Office of the Ombudsman
d) GOCCs or their subsidiaries
26. Who are ineligible for appointment to any public office
during their tenure?

a) Elective officials
b) Appointive officials
c) Both elective and appointive officials
Who cannot receive additional, double or indirect
compensation unless specifically authorized by law?

a) Elective officials
b) Appointive officials
c) Both elective and appointive officials
28. What is not true of the power of the Ombudsman to
place a person under preventive suspension?

a) The evidence of guilt must be strong

b) It is based on dishonesty or some grave offense which
would warrant the dismissal of the public official or
employee
c) The maximum period for suspension is 90 days
d) It can issue even before the charges against an official
have been heard
29. When a person who occupies a position of trust and
confidence is suddenly removed from office, the valid
mode of termination is via

a) The Presidential power of control

b) Forfeiture of office
c) Resignation
d) Expiration of term
30. Several government personnel, all regular, were
all notified that, as a result of a reorganization of
the President, their office had been abolished and
that they had lost their jobs. Does this violate
their security of tenure?
a)Yes
b)No
DISQUALIFICATIONS AND CONSTITUTIONAL
PROHIBITIONS
• Elective Officials
– Ineligible for appointment or designation
to any public office during his tenure
(unless he ends tenure).1
• Appointive Officials
– Cannot hold any other office or
employment in government including
GOCC’s and subsidiaries. (Sec. 7, Art. IX-
B)2
• Elective/Appointive
– Cannot receive additional, double or
indirect compensation, unless specifically
authorized by law.3
– Cannot accept gifts, any present,
emolument from any foreign
government, without the consent of
Congress. (Sec. 8, Art. IX-B)4
FORBIDDEN OFFICE
An office created or an office
whose emoluments were
increased during his term (Sec.
13, Art. VI)
INCOMPATIBLE OFFICE
Any kind of office or employment
in the government, including
GOCCs. (Id.)
When an incumbent Congressman is appointed to another government
office, the effect of this is
a. He is ipso facto considered resigned
b. His appointment is considered invalid unless he resigns
c. He cannot keep the salaries for the time that he held appointive
office before his holding was declared void

Answer:
When an incumbent Congressman is appointed to another government
office, the effect of this is
a. He is ipso facto considered resigned
b. His appointment is considered invalid unless he resigns
c. He cannot keep the salaries for the time that he held appointive
office before his holding was declared void

Answer: B
• What is additional • For an office, compensation or extra
compensation? reward has been added, such as a
COLA or bonus.
• Two sets of compensation for two
• What is double compensation? different offices held concurrently by
one officer.
• Even assuming holding dual offices is
authorized, a separate and specific
authority to receive the
compensation of the second office is
required.
ARE OFFICERS PERFORMING FUNCTIONS EX
OFICIO ENTITLED TO PER DIEMS?
PEZA v COA,
GR No. 189767, July 3, 2012 (en banc)
(reiterates Civil Liberties Union v Exec Secretary)
 COMPOSITION OF PEZA
The PEZA Board of Directors is composed of 13 members ; the
Undersecretaries of the DOF, DOLE, DILG, DENR, DA, DPWH, DOST and
DOE (the Departments of Finance, Labor and Employment, Interior and Local
Government, Environment and Natural Resources, Agriculture, Public Works and
Highways, Science and Technology and Energy).
Said Undersecretaries serve in an ex officio capacity and were granted per diems by
the PEZA each time they attended a board meeting.
Said per diems were later disallowed by the COA.
 RULING
PEZA’s insistence that there is legal basis in its grant of per
diems to the ex officio members of its Board does not hold
water. The constitutional prohibition explained in [the] Civil
Liberties Union case still stands and this Court finds no reason
to revisit the doctrine laid down therein as said
interpretation, to this Court’s mind, is in consonance with
what our Constitution provides.
 Sec. 13 of Art. VII
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. (1st par. Thereof.)
 RULING (2)
It bears repeating though that in order that such additional duties or
functions may not transgress the prohibition embodied in Section 13,
Article VII of the 1987 Constitution, such additional duties or
functions must be required by the primary functions of the official
concerned, who is to perform the same in an ex-officio capacity as
provided by law, without receiving any additional compensation
therefor. (Underscoring mine.)
 RULING (3)
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.
 Q
An ex-oficio officer is not entitled to per diems for attending
meetings in an ex oficio capacity because:
a. Only Cabinet Secretaries are entitled to per diems
b. Payment is considered to be already part of the compensation for his
principal office
c. This would constitute additional compensation which is prohibited
by the Constitution
Can the per diems be retained based on the
principle of payment (and receipt) in good
faith?
 WHAT IS “GOOD FAITH”?
In common usage, the term “good faith” is ordinarily used to describe
that state of mind denoting “honesty of intention, and freedom from
knowledge of circumstances which ought to put the holder upon
inquiry; an honest intention to abstain from taking any
unconscientious advantage of another, even through technicalities of
law, together with absence of all information, notice, or benefit or
belief of facts which render transaction unconscientious.
 RULING (4)
It bears stressing that the Civil Liberties Union case was promulgated in 1991, or a
decade before the subject disallowed payments of per diems for the period
starting 2001 were made by PEZA. Thus, even if the Bitonio case was only
promulgated in 2004 when part of the disallowed payments have already been
made, PEZA should have been guided by the Civil Liberties Union case and acted
with caution. It would have been more prudent for PEZA, if it honestly believed
that there is a clear legal basis for the per diems and there was a chance that this
Court might rule in their favor while the Bitonio case was pending, to withhold
payment of the per diem instead of paying them.
 RULING (5)
PEZA’s actual knowledge that the disbursements are being
questioned by virtue of the notices of disallowance issued to
them by the COA and knowledge of the pronouncements of
the Court in the Civil Liberties Union case and in other
cases[21] where ex officio members in several government
agencies were prohibited from receiving additional
compensation, militate against its claim of good faith.
 Q
An ex-oficio officer is not entitled to per diems for attending
meetings in an ex oficio capacity because:

c. This would constitute additional compensation which is prohibited by

the Constitution
CAN REPRESENTATIVES OF EX-OFICIO
MEMBERS/OFFICERS RECEIVE PER DIEM
AND ALLOWANCES?

NO. This is against the law and jurisprudence.

There is no legal basis therefor.1
 NAC v. COA
• In the case of Civil Liberties
Union v. Executive Secretary
(which became final on 19
August 1991), the Supreme
Court ruled that Cabinet
Secretaries, their deputies and
assistants may not hold any
other office or employment.
And it declared EO 284 which
had previously authorized this,
unconstitutional.
• Thus, the COA issued COA
Memo No. 97-038
implementing said decision and
commanding all in government
to issue the corresponding
Notices of disallowance.
• Pursuant to the COA Memo, the
NAC Auditor disallowed on audit
the claims for honoraria.
 NAC v. COA (2)
• Despite the blanket prohibition
against the holding of multiple
offices in government by both
elective and appointive public
officials (contained in Sec. 7, Art.
IX-B), the ConCom saw fit to
specifically prohibit the
President, members of the
Cabinet from holding any other
office during their
tenure, unless otherwise
provided by the Constitution
itself. (Sec. 13, Art . VII)
• Moreover, those holding ex-
oficio positions have no right to
receive additional compensation
for said position. These services
are already paid for by the
compensation for his principal
office.
• Natural-born
• 35 yoa
• Not a lame duck1
• COA
– CPAs with at least 10 yrs
of auditing experience
– Not all at the same time
members of the same
profession
• COMELEC
– College degree holders
– Majority are members of
Phil2 Bar for at least 10
yrs
• CSC
– Must have proven
capacity for public
administration
A month before a forthcoming election, A, one of the
incumbent COMELEC Commissioners, suffers a severe stroke.
In view of the proximity of the election and to avoid paralysis
in the COMELEC, the President, who was not running for any
office, designated Associate CA Justice D as an Acting
Commissioner during the absence of A.
D’s appointment is void because:
1. As an appointive official, he cannot hold any other office or
employment in the government
2. D cannot receive additional or double compensation
3. By specific constitutional provision, D cannot be designated to any
agency performing quasi-judicial or administrative functions.
4. A CA justice is not qualified to be designated as a COMELEC
Commissioner
 Answer: C
A’s appointment is void because:
1. As an appointive official, he cannot hold any other office or
employment in the government
2. D cannot receive additional or double compensation
3. By specific constitutional provision, D cannot be designated to any
agency performing quasi-judicial or administrative functions.
4. A CA justice is not qualified to be designated as a COMELEC
Commissioner
 PARDON1
• Act of executive clemency • However, pardon may stipulate
• Pardon is discretionary that even accessory penalties,
• Generally operates to relieve such as perpetual absolute
an offender of the penal disqualification, are
consequences of his actions. extinguished by the pardon.
• In such a case, offender may be
reappointed.1,2
 EXCEPTIONS
• Impeachment
• Election offenses, except with the concurrence of the
COMELEC
• An Assistant City Treasurer was
convicted of Estafa through
falsification of public document.
While serving sentence, he was
granted an absolute pardon by
the President. And the position
of Assistant City Treasurer has
remained vacant.
1. He can be reinstated immediately.
2. He cannot be reinstated unless the
pardon expressly states that the
accessory penalty of perpetual
absolute disqualification was
removed.
3. He can assume via a new
appointment.
• A City Assistant Treasurer was
convicted of Estafa through
falsification of public document.
While serving sentence, he was
granted an absolute pardon by
the President. And the position
of Assistant City Treasurer has
remained vacant
a. He can be reinstated immediately.
b. He cannot be reinstated unless the
pardon expressly states that the
accessory penalty of perpetual
absolute disqualification was
removed.
c. He can assume via a new
appointment.
Answer: B
ACCOUNTABILITY OF PUBLIC OFFICERS
• State’s imprescriptible right to recover
unlawfully acquired wealth. (Sec. 15)
• Equivalent of DOSRI for GFI/GOC-
Bank in favor of Prez/Veep, Cabinet
Members, Congress, SC members and
COMELEC/CSC/COA. (Sec. 16)
• Proscription against changing of
citizenship or immigration status by
public officers or employees as may
be dealt with by law. (Sec. 18)
 CONSTI PROVISIONS 2

• The State shall maintain honesty and integrity in the public service
and take positive steps and effective measures against graft and
corruption. (Sec. 27, Art. II.)
INSTITUTIONS

Impeachment
Ombudsman (OMB)
Sandiganbayan
Civil Service Commission (CSC)
 IMPEACHMENT
• Procedure (Section 3, Art. XII.)
• Political Process
• Involves both Houses of Congress
– HOR (“Fiscal”)
– Senate (“Judge”)
• Who are impeachable public
officers?
– The President
– The Vice-President
– SC members
– The members of the the ConComs:
the COMELEC/CSC/COA &
– The Ombudsman. (Sec. 2, Art. XI.)1
 “I solemnly swear that I will faithfully
• Culpable violation of the
Constitution
• Treason
• Bribery
• Graft and corruption
• Other high crimes
• Betrayal of public trust1
and conscientiously fulfill my duties
as President/Veep of the Philippines,
preserve and defend its Constitution,
execute its laws, do justice to every
man, and consecrate myself to the
service of the nation, so help me
God.” (Section 5, Article VII.)
 IMPEACHMENT RULES
• HOR has exclusive power to initiate1
all impeachment cases.
• All impeachment complaints must be
verified and endorsed by a member
of Congress. Then, it shall be
calendared and endorsed to a
Committee.
• 1/3 HOR must affirm (overturn)
Committee resolution.
• Impeachment proceedings against
the same official are limited, one per
year.
• The Senate has the sole power to try
and decide all impeachment cases.
• When the President is on trial, the CJ-
SC shall preside but shall not vote.
• A favorable judgment is limited to
removal from office and
disqualification to further hold public
office, subject to other legal liabilities.
(Sec. 3(7).)
 SENATE
IMPEACHMENT RULES
• Upon receipt of Articles of Impeachment,
the Senate shall organize itself by:
– Notifying the CJ, SC that he shall preside
– Administering oaths to the Presiding Officer
and the Senators.
• Senate may compel the attendance of
witnesses, preserve order and summarily
punish contempts or disobedience to its
authority.
• Upon receipt and due organization,
Senate shall issue summons to person
subject of impeachment, to file his
answer within ten (10) days from receipt
thereof, to which the prosecutors may
reply within five (5) days therefrom.
• After hearing, the Presiding Officer
recites each article and each Senator
votes.
 IMPEACHMENT JUDGMENT; effects
• Removal from office • Not generally subject to judicial
• Perpetual absolute review. It is a political question.
disqualification to hold public • May not be pardoned by
office President (express exception).
• Continuing liability for
prosecution, trial and
punishment according to law
THE OMBUDSMAN
The protector of the people.1
• The prosecutor of erring public
officers and employees.
 THE OMBUDSMAN1 ;
Some Powers
• Investigate any act or omission of any • Direct officer concerned to
public official, employee, office or – Take appropriate action against a public
agency officer or employee, recommend action
and ensure compliance2
• Direct any public official or employee
– Furnish it with documents of contracts or
to perform or expedite any duty transactions, and report any irregularities
required by law, or to stop and to the COA3
prevent or correct any abuse or
impropriety
 INVESTIGATIVE POWER
Investigate and prosecute on its own or on complaint by any
person, any act or omission of any public officer or employee,
office or agency, when such act or omission appears to be
illegal, unjust, improper or inefficient.
It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary
jurisdiction, it may take over, at any stage, from any
investigatory agency, the investigation of such cases.1
• Power to conduct preliminary
investigation1
• Any act or omission of any
public officer or employee,
office or agency
– Without qualification
• Covers cases cognizable in both
Sandiganbayan and regular
courts2
• OSP-OMB has primary
jurisdiction to conduct PI and
prosecute cases cognizable by
Sandiganbayan.3
Acts or omissions:
• Contrary to law or regulation
• Unreasonable, unfair, oppressive
or discriminatory
• Inconsistent with the general
course of an agency’s functions
• Proceed from a mistake of law
or an arbitrary ascertainment of
fact
• Exercise of discretionary powers
for an improper purpose, or
• Otherwise irregular, or devoid of
justification1
 SUSPENSION
During Admi Investigation During criminal prosecution
• Imposed during the pendency of an
administrative investigation • Punitive in character
• Not considered a penalty in itself
• Precaution to enable freer
investigation
• Does not require prior notice and
hearing Compensation?
(In Administrative Proceedings)

PREVENTIVE SUSPENSION
 WHO CAN SUSPEND?
Subject “Suspender”
• Presidential appointee • The President, after due notice
and hearing
• If not a presidential • PAGC
appointee: – Rank = or higher than Assistant
– By proper disciplining Reg Director
authority – At least P10 MM amt
– Threaten grievous harm or injury
– See requisites to the national interest
– As may be assigned by President
• Provincial, HUC, independent • The President
component city
• Component city or municipality • Governor
• Barangay officials
• Mayor

Law)
• Any subordinate officer or
employee under his authority
• Pending an investigation
• Charges involve dishonesty,
oppression or grave misconduct,
or neglect in the performance of
duty, or reasons which would
warrant his removal from the
service. 1
(Under CSC
• When the administrative case is
not finally decided by the
disciplining authority within the
period of ninety (90) days after
the date of suspension of the
respondent who is not a
presidential appointee, the
respondent shall be
automatically reinstated in the
service.2
 (Under OMB Act)1
• Grounds
– Strong evidence of guilt
– Dishonesty, Grave
misconduct or oppression, or
Neglect in the performance
of duty which would warrant
his removal
– Continued stay in office could
prejudice case
• Duration: 6 mos. max w/o pay
• Otherwise, the respondent shall
be automatically reinstated.
• Unless the delay is due to the
fault, negligence or petition of
the R [deduct this from period
of suspension].2
• Alfonso Beit, a supply officer in
the Department of Science and
Technology (DOST), was charged
administratively. Pending
investigation, he was
preventively suspended for 90
days.
• Can Alfonso Belt claim salary for
the period that his case was
pending investigation? Why?1,2
• NO. He cannot claim a salary
during the time that he was
suspended.
Q2
• G, a Regional Director of the DPWH, was charged with a violation of Section
3(e) of Republic Act No. 3019 before the Ombudsman. And based on the
same transaction which was the subject matter of said criminal case, an
administrative charge for gross misconduct was also filed against him
before the OMB. The Ombudsman assigned a team composed of
investigators from the Office of the Special Prosecutor and from the Office
of the Deputy Ombudsman for the Military to conduct a joint investigation
of the criminal case and the administrative case. The team of investigators
recommended to the Ombudsman that G be preventively suspended for a
period not exceeding six (6) months on its finding that the evidence of guilt
is strong. And the Ombudsman issued the said order.
Q2 (2)
G moved to reconsider the order on the following grounds: (a)
the Office of the Special Prosecutor had exclusive authority to
conduct a preliminary investigation of the criminal case; (b)
the order for his preventive suspension was premature
because he had yet to file his answer to the administrative
complaint and submit countervailing evidence; and (c) he was
a career executive service officer and under Presidential
Decree No. 807 (Civil Service Law), his preventive suspension
shall be for a maximum period of three months.
Resolve with reasons the motion of respondent G. (5%) (2005
Bar, Remedial Law)
SUSPENSION DURING CRIMINAL
PROSECUTION
• Any incumbent public officer
against whom any criminal
prosecution under a valid
information under this Act (RA
3019) or for any crimes
committed by public officers or
for any offense involving fraud
upon government x x x shall be
suspended from office (Sec. 13,
RA 3019.)1
• No public officer shall be
allowed to resign or retire
pending an investigation,
criminal or administrative, or
pending a prosecution against
him, or for any offense under
this Act or under the provisions
of the RPC on bribery. (Id., Sec.
12.)
 Q
• B, a municipal mayor, was indicted before the
Sandiganbayan for a violation of Sec. 3(e) of RA 3019 for
conspiring to deprive a market lessee-stallholder of her
proprietary rights to a public market without valid reason
therefor. The Sandiganbayan moved to suspend B
(preventively) for 90 days. And later he received a copy of
an order issued by the DILG Secretary implementing the
suspension order. He was later acquitted.
• Was his suspension necessary? And is he entitled to the
salaries and benefits he lost during his suspension?1,2
 Q
• Was his suspension necessary? And is he entitled to the
salaries and benefits he lost during his suspension?1,2
A: Yes, his suspension was necessary. The language of
Sec. 13, RA 3019 in imposing suspension is mandatory in
character by use of the term “shall”. He is entitled to
reinstatement and back salaries once acquitted.
HOW IS A SUSPENSION VALIDLY CONTESTED?

Miguel v Sandiganbayan, GR No. 172035, July 4,

2012.
HOW IS A SUSPENSION VALIDLY CONTESTED?
While the suspension of a public officer under this provision is
mandatory, the suspension requires a prior hearing to
determine “the validity of the information” filed against him,
“taking into account the serious and far reaching
consequences of a suspension of an elective public official
even before his conviction.”
 HOW CONTESTED?
The accused public official’s right to challenge the validity of the
information before a suspension order may be issued includes the
right to challenge the
(i) validity of the criminal proceeding leading to the filing of an
information against him, and
(ii) propriety of his prosecution on the ground that the acts charged do
not constitute a violation of R.A. No. 3019 or of the provisions on
bribery of the Revised Penal Code
 IS A PRE-SUSPENSION HEARING MANDATORY?
NO. Since a pre-suspension hearing is basically a due process
requirement, when an accused public official is given an
adequate opportunity to be heard on his possible defenses
against the mandatory suspension under R.A. No. 3019, then
an accused would have no reason to complain that no actual
hearing was conducted.
 PRE-SUSPENSION HEARING (2)

It is well settled that “to be heard” does not only mean oral
arguments in court; one may be heard also through
pleadings. Where opportunity to be heard, either through
oral arguments or pleadings, has been accorded, no denial of
procedural due process exists.1
THE
SANDIGANBAYAN
 THE SANDIGANBAYAN
• Special court
• Jurisdiction over criminal and civil
cases involving graft and corrupt
practices and offenses committed by
public officers and e/ees, including
those
in GOCCs, in relation to their office as
may be determined by law. (Sec. 5,
Art. XIII, 1973 Constitution.)
• Present anti-graft court shall continue
to exercise its jurisdiction as. . .may
be provided by law1 (1987 Const.)
SANDIGANBAYAN JURISDICTION
• Under RA 8249, to determine
jurisdiction, lawyers must look
into two (2) criteria, namely:
– The nature of the offense, and
– The salary grade of the public
official
 JURISDICTION OF SANDIGANBAYAN
• Grade 27 or higher, including:
– Members of the executive branch, including Regional Directors and
up
– Members/officials of Congress
– Members of judiciary*
– Chairmen and members of the Constitutional Commissions*
*Impeachable
 JURISDICTION OF SANDIGANBAYAN (2)

• Other offenses, simple or complexed with other crimes committed by

aforementioned public officials in relation to their office1
• Civil and criminal cases filed pursuant to Ill-gotten wealth (EO’s 1, 2,
14 & 14-A.)2
• Private individuals, including those in GOCC’s shall be tried jointly with
said public officers in the proper court.3,4
• Those expressly mentioned
are:
• Certain Provincial officials
• Certain City officials
• Consuls and up
• AFP officials: Colonels and
naval captains1 and up
• PNP Provincial Directors, Senior
Supts and up
• City and provincial prosecutors
and their assistants
• OMB Prosecutors and
Tanodbayan prosecutors
• Presidents, directors or trustees
or managers of GOCC’s/State U,
etc.
 Problem

• Several BIR officers were charged by a Special Prosecutor

with plunder through the filing of a criminal Information
before the Sandiganbayan for withdrawing over P193 MM
from the LBP West Triangle Branch, Diliman, QC. However, in
their Motion to Quash, the accused claimed that the
Sandiganbayan had no jurisdiction over their cases, since
none of them occupied a position of SG 27 or higher. Are the
accused correct?1
 Problem

• Are the accused correct? (the Sandiganbayan has no

jurisdiction over them?)
A: YES. The Sandiganbayan Act provides for jurisdiction over
public officials with a SG 27 and up.
LIABILITIES OF PUBLIC OFFICERS
 Disqualifications and Prohibitions

DISABILITIES AND
INHIBITIONS OF PUBLIC
OFFICERS UNDER THE
CONSTITUTION
 Civil Service Law
Local Govt Code
Civil Code
Central Bank Act
Internal Revenue Code
AGCPA*
DISABILITIES AND Code of Conduct and
Ethical Standards*
INHIBITIONS OF PUBLIC
OFFICERS UNDER EXISTING
LAWS
 LIABILITY
• GR: Not liable, under rules of even if acting under the
agency instructions of a superior.
• Not civilly liable for acts done in • LGs are not exempt from liability
an official capacity unless done for death or injury to persons or
with bad faith or negligence damage to property (QD
• Liable for willful or negligent liability)
acts done contrary to law, etc.
3-FOLD LIABILITY

• Criminal
• Civil
• Administrative1,2,3
 QUANTA OF EVIDENCE4
Source Quanta

• Criminal • Beyond a reasonable doubt1

• Preponderance of evidence2
• Civil
• Substantial evidence3
• Administrative
 PRESIDENTIAL LIABILITY
• GR: No liability. Enjoys immunity from suit. Also discretionary and
based on separation of powers.1
• Note: “alter ego” rule; extends to Cabinet2
– Exc: Only enjoys immunity during his tenure (e.g. Estrada plunder case).
 OFFICIAL IMMUNITY
• Flows from State immunity from • Threefold Bar Rule
suit. – Can the public official be sued?
• Flows from agency; every public – Can he be held liable?
official or employee is an agent – Can judgment be enforced against
of the government. him?
 LEGISLATIVE v. JUDICIAL
• LEGISLATIVE
• GR: Act collectively, not liable for
official acts.
– Individual acts, not made on the floor or
in the Committees. (Immunity from libel.)
• JUSTICES/JUDGES1,2
• Not liable for official acts even if
mistaken
– Decisions may be reversed if based on
gross abuse of discretion.
– May be liable for misfeasance, etc.
 SUBORDINATES’ LIABILITY
• GR: Not liable for official acts done in good faith
– Exc: Acts are wilful or negligent, contrary to law, moral, public
policy and good customs, even when he acted under the orders of
his superiors, or when provided by law.1
WHAT IS
CONDUCT PREJUDICIAL TO THE
BEST INTEREST OF THE SERVICE?
Consolacion v Gambito,
AM P-06-2186, July 3, 2012 (en banc)
 SUMMARY OF FACTS
A court employee named G:
• Sold a tricycle for P65,000 to a close friend which was
allegedly “clean” or without defect or infirmity in its title.
However, in reality , the tricycle was encumbered via CM to a
bank and foreclosed . (The complaint was later withdrawn)
• Court views late recantation/withdrawal with disfavor; not
considered to benefit G
 SUMMARY OF FACTS (2)
• G solicited P15,000 from a party presumably to facilitate 2 cases, an
ejectment case and a petition for the issuance of a lost title. However,
the cases were not filed because only P7,000 was remitted on
installment.
• G solicited and received P9,000 in cash on installment from a party for
the bail of the party’s husband (subject of 9 pending cases).
– Money used for medicines and college books of daughter
 JUDICIAL STANDARDS
• Conduct prejudicial to the best interest of the service refers to acts or
omissions that violate the norm of public accountability and diminish -
or tend to diminish - the people’s faith in the Judiciary (citing Ito v De
Vera)
• If an employee’s questioned conduct tarnished the image and
integrity of his public office, he was liable for conduct prejudicial to
the best interest of the service. (citing Largo v CA)
 RULING; As to Consolacion
The Court stresses that the conduct of every court personnel
must be beyond reproach and free from suspicion that may
cause to sully the image of the Judiciary. They must totally
avoid any impression of impropriety, misdeed or
misdemeanor not only in the performance of their official
duties but also in conducting themselves outside or beyond
the duties and functions of their office.
 RULING; as to other acts
Indeed, Gambito’s unauthorized transactions with Villamanca
and Erum constitute conduct grossly prejudicial to the
interest of the service. Under the Civil Service Law and its
implementing rules, dishonesty, grave misconduct and
conduct grossly prejudicial to the best interest of the service
are grave offenses punishable by dismissal from the service.
TERMINATION OF OFFICIAL RELATIONS
 MODES OF TERMINATION
• Expiration of term1 • Acceptance of incompatible
• Abolition of office office5
• Age2 • Removal, including recall6
• Death • Impeachment
• Accomplishment of purpose of • Forfeiture
office • Conviction of crime7
• Resignation3,4
• Abandonment4
ELECTION LAW
REVIEW
Atty. Noel Ostrea
 BAR SYLLABUS, ELECTION LAW
• Suffrage
• Qualifications/Disq of Voters
• Voter Registration
• Inclusion/Exclusion Proceedings
• Political Parties
• Campaigning
– Premature Campaigning
– Prohibited Contributions
• Candidacy
– Qualifications of candidates
– Filing of COCs, Effect
– Substitution of Candidates, Nuisance
Candidates
– Effect of Disqualification, Withdrawal
• Board of Canvassers
• Remedies and Jurisdiction in Election
Law
• Prosecution of Election Offenses
 What is REPUBLICANISM?
• Republicanism, or so far as it implies the adoption of a
representative type of government necessarily points to the
enfranchised citizen as a particle of popular sovereignty and
as the ultimate source of government authority. He has a
voice in his government and whenever possible it is the
solemn duty of the judiciary when call upon to act in
justiciable cases, to give it efficacy and not [to] stifle or
frustrate it. (J. Sarmiento, dissenting. Sanchez v. COMELEC,
GR. 78461, 12 August 1987.)
 REPUBLICANISM (2)
The Philippines is a democratic
and republican state.
Sovereignty resides in the
people and all government
authority emanates from them.
(Section 1, Art. II, 1987
Constitution.)
Suffrage is:

a) The right and obligation of qualified citizens to vote in electoral

exercises
b) A quality of government where the people can participate in the
business of governing through elections, plebiscite, referendum,
etc.
c) A lack of disqualifications
d) One person, one vote
Republicanism is—

a) A government of the people, by the people and for the

people
b) Self-determination
c) A quality of government where the people can participate
in the business of governing through elections, plebiscite,
referendum, etc.
d) A representative form of government
 ELECTORAL ACTIVITIES
• Voter Registration
– Qualifications, particularly
residence and animus manendi
• Campaigning
– Organization and Registration of
Political Parties
– Nomination of Candidates
– Filing of COCs
• Nuisance Candidates
• Petitions for Disqualification
– Election Propaganda and Rallies
– Electoral Controls and
Expenditures
• Voting and the Counting of
Votes
– Failures of elections
• Canvass of Votes and
Proclamation
 COMELEC, Composition
The Chairman and the Commissioners shall be appointed by the
President with the consent of the Commission on Appointments for a
term of seven [7] years without reappointment. Of those first appointed,
three Members shall hold office for seven years, two Members for five years, and
the last Members for three years, without reappointment. Appointment to a
vacancy shall be only for the unexpired term of the predecessor1. In
no case shall any Member be appointed or designated in a temporary
or acting capacity. (Sec. 1(2), Art. IX-C.)
 COMELEC FUNCTIONS1
• Can supervise or regulate the
• Tasked to enforce and enjoyment and utilization of all
administer all laws and franchises and public utilities,
regulations relative to including the mass media.3
electoral exercises2 • Can procure Comelec space and
Comelec time.
• Can require national radio or TV
networks to sponsor debates
• Can enjoin a movie about a candidate
 COMELEC (2)
• To decide all questions affecting
elections
• To deputize, with the concurrence of
the President, law enforcement
agencies and instrumentalities to
ensure free, orderly and honest
elections.
• Recommend to Congress effective
measures to minimize election
spending
• To register political parties,
organizations or coalitions and
accredit citizens’ arms of the
COMELEC.
• To file, upon verified complaint or on
its own initiative, petitions in court for
the inclusion/exclusion of voters;
investigate and where appropriate,
prosecute cases of violations of
election laws, etc.1
 COMELEC (3); CONTESTS
• Exercise EOJ (exclusive original
jurisdiction) over all election contests
of all regional, provincial and city
officials.1
• Exercise appellate jurisdiction over all
election contests involving elective
municipal and barangay officials
decided by the proper courts (RTCs/
MTCs)
• Jurisdiction over Prez/ Veep election
contests is vested in the PET;
• Jurisdiction over election contests for
the Senate is vested in the SET;
• Jurisdiction over election contests for
the Lower House is vested in the
HRET;
 EOJ over barangay officials: the
proper MTCs.2,3
Which of the following is not a valid exercise of COMELEC power?

a) To procure Comelec space and Comelec time

b) To enjoin a movie about a candidate
c) To ban electoral surveys or exit polls
d) To submit recommendations to Congress to minimize election
spending
 COMELEC (4)
Q:What is an election contest? A: It is an adversarial proceeding
to determine the candidate
lawfully elected to public office.
It is neither an action at law, nor
a suit in equity. It is a summary
proceeding of a political
character.
 ELECTION CONTESTS
• Relevant issues are the elections, returns and qualifications
of all elective officials, national and local
 COMELEC (5)
• Requirements before Elections • Voters’ Registration1,2,3
• Preparation of Voters’ Lists4,5
• Registration and Filing of COCs
 QUALIFICATIONS
• Citizenship • Filipino
• Age • 18 yoa on Election Day
• Double Residence • In the Philippines, for at least
one (1) year before the
election.
• In the locality where he
proposes to vote, at least six (6)
months immediately prior to the
election.
 DISQUALIFICATIONS, OEC
• Insanity or incompetence • Any person who did not vote in
• Conviction by final judgment of the two (2) successive preceding
disloyalty to the government, regular elections
etc. • Any person whose registration
• Sentenced by final judgment to has been ordered excluded, and
imprisonment of at least one (1) • Any person who has lost
year Philippine citizenship
 DISQUALIFICATIONS, LGC
• Sentenced by final judgment for an
offense
– Involving moral turpitude or for an
offense punishable by one (1) year or
more of imprisonment
– Within two (2) years after serving
sentence
• Removed from office due to
administrative case
• Convicted by final j of violating
allegiance to RP
• Dual citizenship*
• Fugitives from justice in criminal or
non-political cases here or abroad
• Permanent residents in a foreign
country or those who have acquired
the right to reside abroad and
continue to avail of said right*
• Insane or feeble minded
Exclusive original jurisdiction over election contests involving barangay
officials is vested in

a) The proper RTCs

b) The proper MTCs
c) The COMELEC
d) Both a and c
What is not a ground for disqualification as a voter?

a) Conviction by final judgment

b) Sentence by final judgment to imprisonment of at least one (1) year
c) Any person who did not vote in the two (2) successive preceding regular
elections
d) Dual allegiance
A person whose name has been excluded from the voters’ list
can file a petition for inclusion before the proper

a) MTC/MCTC
b) RTC
c) COMELEC
 VOTER REGISTRATION
The listing of persons qualified to vote. It is the act of
accomplishing and filing a sworn application for registration
before the proper election officer and including the same in
the book of registered voters upon Election Registration
Board (ERB) approval. (Sec. 3(a), RA 8199.)
The act of accomplishing and filing a sworn application before the proper
election officer and including the same in the book of registered
voters upon the approval of the Election Registration Board is--

a) Book of voters
b) Election registration
c) Voter registration
d) Preparation of voters’ lists
45. Joseph ESTRADA was allowed by the COMELEC to file his candidacy and
campaign under his stage name “Joseph ESTRADA” rather than his name
appearing in his birth certificate, “Joseph EJERCITO”. Was the COMELEC
correct?

a) Yes, because his use of a different name was immaterial

b) Yes, because his use of a different name, while material, was not intended to
mislead or misinform
c) No, because his use of a name different from that appearing on his birth
certificate bears on his qualifications to run for public office
d) No, because he could be criminally liable for the use of an alias
 RESIDENCE
• Domicile
– Actual presence + animus manendi
(sense of permanence)
• Residence
 By filing a written application to
register + notice (posting) and
hearing. However, hearing may
be waived.
• Any person who temporarily
resides in another place by
reason of his occupation,
profession, employment,
educational activities or
detention does not lose his
original residence. (Sec. 9, RA
8189.)
Actual physical presence + animus manendi equals

a) Residence
b) Permanent residence
c) Domicile
d) Local residence for OFWs
The domicile of a married woman is determined by

a) The Family Home

b) The residence of her husband before the marriage
c) Her residence before the marriage
d) Her residence of origin before the marriage
A person, A, lives in San Pedro, Laguna, works in Makati City but leases a
bedspace with two (2) other persons in Ortigas City to lessen his
daily commute. He returns to San Pedro at least once a month. His
domicile is in—
a) San Pedro, Laguna
b) Makati City
c) Ortigas City
 NOMINATION, CANDIDACY AND POLITICAL
PARTIES
• What is the proper period for
nominating candidates?
• For national office
• For local elective office – Not earlier than 165 d before ED
– Not earlier than 75 d before ED5
• What is a political party?
• An organized group of persons
pursuing the same ideology,
• Why should a political party political ideas or platform of
register with the COMELEC.2,3,4 government.1
The proper period for nominating candidates for national office is not
earlier than _____ days before the election?

a) 163
b) 165
c) 73
d) 75
• Seek to achieve their goals
through violence or unlawful
means
• Refuse to uphold and adhere to
the Constitution
• Are supported by a foreign
government
• Religious denominations and
sects
The registration of a political party is intended primarily to
allow the party

a) To file petitions for the exclusion of voters

b) To acquire a juridical personality
c) To obtain the rights to have a watcher present at the
canvassing center
d) All of the above
 CANDIDACY
• Who is a candidate? • A person who has filed his COC, in
hand filed.
• What is the last day for filing one’s • Before the beginning of the campaign
COC? period.
• When does the campaign period1
begin:
– For candidates for national office
– For candidates for local office – 90 d before ED
• How is a COC withdrawn? Or denied – 45 d before ED3
due course or cancelled?2 • By filing a written declaration under
oath to that effect.
 CANDIDATE1, Com Res 8758
• The term “candidate” refers to a person aspiring for or seeking an elective public
office who has filed his certificate of candidacy and who has not died or
withdrawn or otherwise [been] disqualified before the start of the campaign
period for which he filed his certificate of candidacy. Provided, That, unlawful acts
or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period.
• It also refers to any registered national , regional, or sectoral party that has filed a
manifestation to participate under the party list system which has not withdrawn
or not been disqualified before the start of the campaign period.
A candidate is

a) A person who has filed his certificate of candidacy in hand filed

b) A person who lays down principal or fundamental guidelines
c) A representative of the people
d) A), plus the fact that he has not died or withdrawn or otherwise
been disqualified before the start of the campaign period
 ON THE COC
• Upon filing, is a candidate considered ipso facto resigned,
whether a holder of an appointive or elective office? (Sec. 66,
67 OEC)1
• Who is disqualified from filing? (Sec. 68, OEC)
• Who can replace a candidate who dies, is disqualified or
withdraws? (Sec. 77, OEC)
 Quinto v COMELEC
• Section 4(a) of COMELEC
Resolution 8678 is a faithful
reflection of the present state of
the law and jurisprudence on the
matter.
• Under Section 13 of RA 9369,
which reiterates Section 66 of the
Omnibus Election Code, any
person holding a public
appointive office or position,
including active members of the
Armed Forces of the Philippines,
and officers and employees in
government-owned or -controlled
corporations,
shall be considered ipso facto
resigned from his office upon the
filing of his COC.
• On the other hand, pursuant to
Section 14 of RA 9006 or the Fair
Election Act, 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. In fine, an elected
official may run for another
position without forfeiting his
seat.
264
 NUISANCE CANDIDATES
• Filing of COC puts the election
process in mockery or disrepute
• Causes confusion among the
voters by the similarity of names
• Other circumstances or acts
which clearly demonstrate the
candidate has no bona fide intent
to run1

265
 EFFECT OF DISQUALIFICATION
BEFORE ELECTION AFTER ELECTION

• Election of candidate is • His votes are counted

suspended • Proclamation may be
• His votes are not counted suspended

266
 Trinidad v.
• Sunga and Trinidad both ran for
mayor in Iguig, Cagayan. And
Trinidad won.
• Sunga filed a complaint for
disqualification against
Trinidad, accusing him of using
LG vehicles in his campaign and
committing acts of terrorism,
threats and intimidation.
• Trinidad’s term of office
expired.
COMELEC 1
HELD: NO. The issue has been
rendered moot and academic
by the expiration of the term
of office of the challenged
candidate.
Also, Sunga cannot claim any right
to the office even if Trinidad is
disqualified. Otherwise, the
court would substitute its
judgment for the mind of the
voter. This would
disenfranchise the electorate.
267
 PREMATURE CAMPAIGNING
It shall be unlawful for any person,
whether or not a voter or a
candidate, or for any party, or
association of persons, to engage
in an election campaign or
partisan political activity except
during the campaign period.1
Any candidate who, in an action or protest
in which he is a party declared by final
decision of a competent court guilty of,
or found by the Commission of having
violated Sec. 80, etc. x x x shall be
disqualified from continuing as a
candidate, or if he has been elected,
from holding the office x x x x.2
This also used to be a criminal offense.
268
 Penera v. COMELEC
• FACTS: Rosalinda Penera was a
candidate for mayor in Sta.
Monica, Surigao Del Norte,
during the 2007 elections.
Before filing her COC, Penera
held a motorcade around the
town.
• The motorcade included two
trucks and numerous
motorcycles laden with
balloons, banners, and posters
that showed the names of their
candidates and the positions
they sought.
• And one of the trucks had a
public speaker that announced
Penera’s candidacy for mayor.
• These acts, as the COMELEC
ruled in Penera’s
disqualification case, constitute
election campaign before the
start of the campaign period.
Penera was disqualified.
269
 Penera (2)
• HELD: Under Section 79(a) of the Election Code, a candidate
is one who “has filed a certificate of candidacy” to an elective
public office. This is qualified by Section 15 of R.A. 8436,
which provides that the person who filed a CoC “shall only be
considered as a candidate at the start of the campaign period
for which he filed his certificate of candidacy.”

270
 Penera (3)
• In other words, “a candidate is liable for
an election offense only for acts done
during the campaign period, not before.
The law is clear as daylight — any
election offense that may be committed
by a candidate under any election law
cannot be committed before the start of
the campaign period.“
• This clear language is confirmed
by the deliberations in Congress
during the enactment of this law.
 As such, there is no more offense
of premature campaigning.
 The remedy is for Congress to
amend the law.
271
When does a person become liable for premature campaigning?

a) After he becomes a candidate

b) After he becomes a candidate and after the start of the campaign
period
c) B) plus when charges have been filed against him
d) Never
 GUEST /SUBSTITUTE CANDIDATE
Guest Substitute

• A political party may • In case of death, disqualification

nominate and/or support
candidates not belonging to
it.1
or withdrawal of a candidate
• Must be replaced only by a
person belonging to and certified
by the same political party2

273
 CAMPAIGN, VOTING AND CANVASS
• Campaign and Election Propaganda
• Rallies
• Electoral Contributions and Expenditures
• Voting
• Failure of elections
• Canvass of votes
1. Any question pertaining to or
affecting the proceedings of the
Board of Canvassers
concerning:
2. Illegal composition or
proceedings of the BOC
3. ERs which are incomplete,
contain material defects,
appear to be tampered with or
falsified, or contain
discrepancies
4. ERs prepared under duress,
threats, coercion or
intimidation
5. Substitute or fraudulent ERs
were canvassed
• EJ vested in COMELEC
• “Priorly” raised before BOC
• Summary in nature
 PRE-PROCLAMATION CONTROVERSIES
GR: Any candidate or any registered political party may raise a
PPC under the appropriate grounds (Sec. 233, 234, 235 and
236, OEC)
Exc: However, PPC are not allowed for the elections for Prez,
Veep, Senator or Cong.
– This is to avoid delays in proclamation in these sensitive posts,
creating a vacuum.
Exc2: However, petitions for the correction of manifest errors
are allowed.
 ELECTION PROTEST
PROTEST
• A proceeding where a losing
candidate for a particular position
contests the results of the elections
on the grounds of fraud, terrorism,
irregularities or illegal acts committed
before, during or after the casting and
counting of votes.
• Who won?
QUO WARRANTO
• An action filed by any registered voter
to contest the election of any
candidate on grounds of ineligibility
or disloyalty to the Republic.
• Is the winner qualified to sit?
 DEATH, etc

In case of the ineligibility or death of the winning candidate,

can the second-ranked candidate be proclaimed?
END