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Nachura Notes Public Officers

Nachura Notes Public Officers

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Published by: Sui on Jul 23, 2011
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07/18/2013

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PinoyLaw.Net Notesbank
Nachura Notes – Law of Public Officers (Kiddy)
I. GENERAL PRINCIPLES
Public Office-
 
Right, authority, 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 individualis invested with some sovereign power of government to be exercised by him forthe benefit of the people.-
 
Elements:1.
 
created by
law
or by authority of law2.
 
possess a
delegation of a portion
of the sovereign powers of government,to be exercised for the
benefit of the public
 3.
 
powers conferred and duties imposed must be defined by the
legislature
 or by legislative authority4.
 
duties must be performed
independently
and without control of thesuperior power UNLESS they be those of an inferior or subordinateofficer created or authorized by the legislature and placed under thegeneral control of a superior officer or body5.
 
permanence
or continuity-
 
Creation:1.
 
Constitution2.
 
statutory enactment3.
 
authority of lawPublic Officer-
 
a person who holds office-
 
Public Officer, as understood under criminal law
 
Article 203. any person who, by direct provision of law, popular electionor appointment by competent authority shall take part in the performanceof public functions in the Government; or shall perform in saidGovernment public duties as am employee, agent, or subordinate officialof any rank or class, shall be deemed to be a public officer.
 
RA 3019. includes elective and appointive officials and employees,permanent or temporary whether in the classified, unclassified or exemptservices, receiving compensation, even nominal from the government.
 
PB 807. Career and Non-career services (formerly, classified, unclassifiedor exempt)Distinguished from Clerk or Employee-
 
Officer, duties not being of clerical or manual nature, involves the exercise of discretion in the performance of the functions of government.-
 
Includes any government employee, agent or body having authority to do the actor exercise that function.Main characteristic that distinguishes a Public Officer
creation and conferring of anoffice 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.1
 
PinoyLaw.Net Notesbank
Nachura Notes – Law of Public Officers (Kiddy)
II. ELIGIBILITY AND QUALIFICATIONS
Qualifications2 Different Senses:1.
 
endowments, qualities, attributes which make an individual eligible forpublic officemust possess at the time of the appointment/election and continuously foras long as the official relationship exists2.
 
act of entering into the performance of the functions of public office
 
Property qualifications may not be imposed for the exercise of the right to run forpublic office.
 
Loss of any of the qualifications during incumbency will be a ground fortermination.
 
Failure of an officer to perform an act required by law could affect the officer’stitle to the given office.
 
Prolonged failure or refusal to take the oath of office could result in forfeiture of the office.
 
BP 881 – “the office of any official ELECTED who fails or refuses to take hisoath of office within 6 months from his proclamation shall be considered vacantUNLESS failure is for a cause/s beyond his control.
 
Oath of office is a qualifying requirement for public office.
 
Until he is qualified, the holdover officer is the rightful occupant.
 
Oath of office taken before one who has no authority to administer oath, is nooath at all.
 
Pendency of election protest is not sufficient basis to enjoin him from assumingoffice or from discharging his functions.Authority to Prescribe Qualifications
 
Qualification prescribed by Constitution
generally exclusive unlessConstitution provides otherwise
 
Public officers created by statute
Congress has plenary powers to prescribequalifications, provided:1.
 
germane to the objectives for which the office was created2.
 
qualifications are not too specific as to fit a particular identifiable personthat would deprive appointing authority of discretion in the selection of the appointeeDisqualifications
 
Authority
 
Legislature has the right to prescribe disqualifications in the same manneras it can prescribe qualifications.
 
Limitation: do not violate the Constitution
 
Disqualification may be because of unfitness for public office or becausethe person is rendered ineligible for the office.2
 
PinoyLaw.Net Notesbank
Nachura Notes – Law of Public Officers (Kiddy)
 
General Disqualifications under the Constitution1.
 
No candidate who lost in an election, shall, within 1 year after suchelection, be appointed to any office in the Government.2.
 
No elective official shall be eligible for appointment or designationin any capacity to any public office or position during his tenure.3.
 
No appointive official shall hold any other position in theGovernment, unless otherwise allowed by law or the primaryfunctions of his office.*ex-officio capacity
 
Specific Disqualification under the Constitution1.
 
President, VP, Cabinet Members and their deputies and assistants
shallnot hold any other office or employment during their tenure, UNLESSotherwise provided in the Constitution.2.
 
No
Senator or Member of the HR
may hold any other office or employmentin the Government including GOCC, during his term without forfeiting hisseat. Neither shall he be appointed to any office which may have been createdor the emoluments increased during the term for which he was elected.3.
 
Members of the SC
and of 
other courts established by law
shall not bedesignated to any agency performing quasi-judicial or administrativefunctions.4.
 
No
member of the Constitutional Commission
shall during his tenure, holdany other office or employment. Applies to
Ombudsman and his deputies
.5.
 
Ombudsman and his deputies
shall not be qualified to run for office in theelection immediately succeeding their cessation.6.
 
Members of the Constitutional Commission, Ombudsman and deputies mustnot have been candidates for any elective position in the election immediatelypreceding their appointments.7.
 
Members of the Constitutional Commission, Ombudsman and his deputies areappointed to a term of 7 years, without reappointment.8.
 
Spouse and relatives by consanguinity or affinity within the 4
th
civil degree of the President shall not during his tenure be appointed:
 
As members of the Constitutional Commission
 
Office of Ombudsman
 
Secretaries
 
Undersecretaries
 
Chairmen/heads
III. DE FACTO OFFICERS
-
 
Reputation of being an officer and yet is not a good officer in point of law.-
 
Acted as an officer for such length of time under color of title and under suchcircumstances of reputation or acquiescence by the public and public authoritiesas to afford a presumption of election/appointment and induce people to submit toor invoke his action.Legal Effect3

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