LAW ON

PUBLIC OFFICERS
Consolidated from Reviewer and Outline from
BarOps 2003 and 2004
I. PUBLIC OFFICE AND OFFICERS
A. Public Office
1. Definition
the right, authority and duty created and
conferred by law, by which for a given
period, either fied by law or enduring at
the pleasure of the appointing power, an
individual is invested with some portion
of the sovereign functions of the
government, to be eercised by him for
the benefit of the public! "#ernande$ v
%to! &omas, 'arch (, 200)*
2. Purpoe
to effect the end for which government
has been instituted which is the common
good+ not profit, honor, or private
interest of any person, family or class of
persons ",3 -m .ur 2d ,,(*
!. N"ture
- public office is a public trust! "-rt! /0,
%ec! 1, 123( Consti*
0t is a responsibility and not a right!
"'orfe v! 'utuc*
#. Ele$ent
'ust be created either by "a* the
Constitution, "b* the 4egislature, or "c* a
municipality or other body through
authority conferred by the 4egislature+
'ust possess a delegation of a portion of
the sovereign power of government, to be
eercised for the benefit of the public+
&he powers conferred and the duties
discharged must be defined, directly or
impliedly by the 4egislature or through
legislative authority+
&he duties must be performed
independently and without control of a
superior power other than the law+
- 5ception6 0f the duties are those of
an inferior or subordinate office,
created or authori$ed by the
4egislature and by it placed under the
general control of a superior office or
body+
'ust have some permanency and
continuity
- 7ote6 &his is not to be applied literally!
&he Board of Canvassers is a public
office, yet its duties are only for a
limited period of time!
- &he element of continuance cannot be
considered as indispensable! 'echem
describes the delegation to the
individual of some of the sovereign
functions of government as 8the most
important characteristic9 in
determining whether a position is a
public office or not :4aurel v! ;esierto
"-pril 12, 2002*<!
0n this case, 4aurel, who was the chair
of the 7ational Centennial Commission "7CC*,
was declared by the Court to be a public
officer! &he Court ruled that the 7CC performs
eecutive functions as it enforces and carries
into operation the conservation and promotion
of the nation=s historical and cultural heritage,
a policy embodied in the Constitution! &hat
4aurel did not receive any compensation during
his tenure is of little conse>uence! &his is
because a salary is a usual but not a necessary
criterion for determining the nature of the
position! -t the same time, the element of
continuance cannot be considered as
indispensable!
%. Public Office &. Public E$plo'$ent
?ublic employment is broader than public
office! -ll public office is public
employment, but not all public employment
is a public office!
- public office when it is created by law,
with duties cast upon the incumbent which
involve the eercise of some portion of the
sovereign power, and in the performance of
which the public is concerned! ?ublic
employment is a position which lac@s one
or more of the foregoing elements!
?ublic Office ?ublic Contract
Creation 0ncident of
sovereignty
Originates from will
of contracting
parties
ObAect Carrying out of
sovereign as well as
governmental
functions affecting
even persons not
bound by the contract
Obligations imposed
only upon the
persons who entered
into the contract
%ubAect
'atter
&enure, duration,
continuity
4imited duration
%cope ;uties that are
generally continuing
and permanent
;uties are very
specific to the
contract
Bhere
duties are
defined
&he law Contract
234
(. Public Office &. Public Contr"ct
). *+ere i no &ete, ri-+t to public office.
C575R-4 RD456 - public office, being a
mere privilege given by the state, does not
vest any rights in the holder of the office!
&his rule applies when the law is clear!
5/C5?&0O76 Bhen the law is vague, the
person=s holding of the office is protected
and he should not be deprived of his office!
- public office cannot be regarded as the
property of the incumbent and that a
public office is not a public contract!
-lthough there is a vested right to an
office, which may not be disturbed by
legislation, yet the incumbent has, in a
sense, a right to his office! 0f that right is
to be ta@en away by statute, the terms
should be clear "%egovia v! 7oel*!
.. Public Office i not propert'.
- public office is not the property of the
public officer within the meaning of the due
process clause of the nonEimpairment of
the obligation of contract clause of the
Constitution!
5ceptions6
- 0n >uo warranto proceedings relating
to the >uestion as to which of 2
persons is entitled to a public office
- 0n an action for recovery of
compensation accruing by virtue of the
public office
;ue process is violated only if an office is
considered property! Fowever, a public
office is not property within the
constitutional guaranties of due process! 0t
is a public trust or agency! -s public
officers are mere agents and not rulers of
the people, no man has a proprietary or
contractual right to an office "CorneAo v!
Cabriel*!
Abeja v. Tanada
?ublic office being personal, the
death of a public officer terminates his
right to occupy the contested office and
etinguishes his counterclaim for damages!
Fis widow andGor heirs cannot be
substituted in the counterclaim suit!
/. Cre"tion of Public Office
0o,e of Cre"tion of Public Office
- by the Constitution
- by statute G law
- by a tribunal or body to which the
power to create the office has been
delegated
Scope "n, E1tent of Po2er of
Le-il"ture
- C575R-4 RD456 &he creation of a
public office is primarily a legislative
function!
- 5ceptions6
o where the offices are created
by the Constitution+
o where the 4egislature
delegates such power!
Dele-"tion of Po2er to Cre"te Public
Office
- Bhere an office is created pursuant to
illegally delegated powers, the office
would have no eistence!
U.S.T. v. Board of Tax Appeals
&he authority given to the
?resident to Hreorgani$e within one year
the different eecutive departments,
bureaus and other instrumentalities of the
CovernmentH in order to promote efficiency
in the public service is limited in scope and
cannot be etended to other matters not
embraced therein! &herefore, an eecutive
order depriving the Courts of #irst 0nstance
of Aurisdiction over cases involving
recovery of taes illegally collected is null
and void, as Congress alone has the
Hpower to define, prescribe and apportion
the Aurisdiction of the various courts!H
13. 0et+o, of Or-"ni4in- Office
%ingleEhead6 one head assisted by
subordinates! %wifter decision and action
but may sometimes be hastily made!
Board %ystem6 collegial body in
formulating polices and implementing
programs! 'ature studies and
deliberations but may be slow in
responding to issues and problems!
11. 0o,ific"tion "n, Abolition of Public
Office
C575R-4 RD456 &he power to create an
office includes the power to modify or
abolish it! "i!e!, this is generally a
legislative function*
5/C5?&0O7%6
o Bhere the Constitution prohibits
such modification G abolition+
235
o Bhere the Constitution gives the
people the power to modify or
abolish the office
RD45 on -bandonment6 Bhen a public
official voluntarily accepts an appointment
to an office newly created by law EE which
new office is incompatible with the former
EE he will be considered to have abandoned
his former office!
5ception6 Bhen the nonEacceptance
of the new appointment would affect
public interest, and the public official is
thereby constrained to accept!
Ocampo v. Secretary of Justice
&he legislative power to create a
court carries with it the power to abolish it!
Bhen the court is abolished, any unepired
term is abolished also!
Zandueta v. De la osta
RD456 Bhen a public official voluntarily
accepts an appointment to an office newly
created by law EE which new office is
incompatible with the former EE he will be
considered to have abandoned his former
office!
!xception6 Bhen the nonEacceptance of
the new appointment would affect public
interest, and the public official is thereby
constrained to accept!
12. Etoppel to Den' E1itence of Office
Bhen a person has acted as a public
officer, esp! where he has received
public monies by virtue of his office, he
is estopped from denying that he has
occupied a public office!
B. Public Officer
1. Definition
- public officer is one who performs
public functions G duties of government
by virtue of direct provision of law,
popular election, or appointment by
competent authority! Fis duties involve
the eercise of discretion in the
performance of the functions of the
government, and are not of a merely
clerical or manual nature!
&he most important characteristic which
distinguishes an office from an
employment 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 eercised by him for the benefit of
the public, and that the same portion of
the sovereignty of the country, either
legislative, Audicial, or eecutive,
attaches, for the time being, to be
eercised for the public benefit "4aurel v
;esierto, -pril 12, 2002*
Bhen used with reference to a person
having authority to do a particular act or
perform a particular function in the
eercise of government power, 8officer9
includes any government employee,
agent, or body having authority to do the
act or eercise that function "%ec! 2"14*
-dministrative Code*
#or the purpose of applying the
provisions of the Revised ?enal Code,
employees, agents, or subordinate
officials, of any ran@ or class, who
perform public duties in the government
or in any of its branches shall be deemed
as public officers!
"llustrations#
0n the case of 'aniego v! ?eople, a
laborer who was in charge of issuing
summons and subpoenas for traffic
violations in a AudgeIs sala was
convicted for bribery under R?C 203!
&he court held that even temporary
performance of public functions is
sufficient to constitute a person as a
public official!
0n the case of ?eople v! ?aloma, a
sorter and filer of money orders in the
-uditorIs Office of the Bureau of ?osts
was convicted for infidelity in the
custody of documents! &he court
pointed out that the sorting and filing
of money orders in the Bureau of ?osts
is obviously a public function or duty!
$%o are not considered public officers&
%pecial policemen salaried
by a private entity and
patrolling only the
premises of such private
entity "'anila &erminal Co!
v! C0R*+
236
Concession forest guards
"'artha 4umber 'ill v!
4agradante*+
Company cashier of a
private corporation owned
by the government
"&anchoco v! C%0%*
2. A peron c"nnot be co$pelle, to "ccept
" public office.
5/C5?&0O7%6
Bhen citi$ens are re>uired, under
conditions provided by law, to render
personal military or civil service "%ec!
4, -rt! 00, 123( Const!*+
Bhen a person who, having been
elected by popular election to a public
office, refuses without legal motive to
be sworn in or to discharge the duties
of said office!
!. No preu$ption of po2er
- public official eercises power, not
rights! &he government itself is merely
an agency through which the will of the
state is epressed and enforced! 0ts
officers therefore are li@ewise agents
entrusted with the responsibility of
discharging its functions! -s such, there
is no presumption that they are
empowered to act! &here must be a
delegation of such authority, either
epress or implied! 0n the absence of a
valid grant, they are devoid of power
"Jillegas v! %ubido*!
C. Cl"ific"tion of Public Office "n,
Public Officer
Creation
- Constitutional
- %tatutory
?ublic Body %erved
- 7ational
- 4ocal
;epartment of government to which their
functions pertain
4egislative
5ecutive
.udicial
7ature of functions
Civil
'ilitary
5ercise of .udgment or discretion
KuasiEAudicial
'inisterial
4egality of &itle to office
;e .ure
;e #acto
Compensation
4ucrative
Fonorary
D. De F"cto Officer
1. De F"cto Doctrine
0t is the principle which holds that a person,
who, by the proper authority, is admitted and
sworn into office is deemed to be rightfully in
such office until6 "a* by Audicial declaration in a
proper proceeding he is ousted therefrom+ or
"b* his admission thereto is declared void!
0ts purpose is to ensure the orderly functioning
of government! &he public cannot afford to
chec@ the validity of the officerIs title each time
they transact with him!
2. De F"cto Officer Define,
- person is de facto officer where the
duties of his office are eercised under
any of the following circumstances6
- Bithout a @nown appointment or
election, but under such circumstances
of reputation or ac>uiescence as were
calculated to induce people, without
in>uiry, to submit to or invo@e his
action, supposing him to the be the
officer he assumed to be+ or
- Dnder color of a @nown and valid
appointment or election, but where the
officer has failed to conform to some
precedent re>uirement or condition
"e!g!, ta@ing an oath or giving a bond*+
- Dnder color of a @nown election or
appointment, void because6
o the officer was not eligible+
o there was a want of power in
the electing or appointing
body+
o there was a defect or
irregularity in its eercise+
o such ineligibility, want of
power, or defect being
un@nown to the public!
7ote6 %uch ineligibility, want of
authority or irregularity being
un@nown to the public
- Dnder color of an election or an
appointment by or pursuant to a
237
public, unconstitutional law, before the
same is adAudged to be such!
o 7ote6 Bhat is unconstitutional
is not the act creating the
office, but the act by which the
officer is appointed to an office
legally eisting! "7orton v!
County of %helby*
Officer De 5ure &. Officer De F"cto
;e .ure ;e #acto
Re>uisites 5istence of a
de Aure office+
must possess
the legal
>ualifications
for the office
in >uestion+
must be
lawfully
chosen to
such office+
must have
>ualified
himself to
perform the
duties of such
office
according to
the mode
prescribed by
law!
;e Aure office+
Color of right
or general
ac>uiescence
by the public+
-ctual
physical
possession of
the office in
good faith
Basis of
-uthority
Right6 he has
the lawful
right G title to
the office
Reputation6
Fas the
possession
and performs
the duties
under color of
right, without
being
technically
>ualified in all
points of law
to act
Fow ousted Cannot be
ousted!
Only by a
direct
proceeding
">uo
warranto*+
not
collaterally
Jalidity of
official acts
Jalid, subAect
to eceptions
"e!g!, they
were done
beyond the
scope of his
authority,
etc!*
Jalid as to the
public until
such time as
his title to the
office is
adAudged
insufficient!
Rule on
Compensation
5ntitled to
compensation
as a matter of
right+
&he principle
of Hno wor@,
no payH is not
applicable to
him!
5ntitled to
receive
compensation
only during
the time when
no de Aure
officer is
declared+
Fe is paid
only for actual
services
rendered by
him!
Officer De F"cto &. Intru,er
;e #acto 0ntruder
7ature Officer under
any of the 4
circumstances
discussed
under ?art 00
"above*!
One who
ta@es
possession of
an office and
underta@es to
act officially
without any
authority,
either actual
or apparent
Basis of
authority
Color of right
or title to
office
7one! Fe has
neither lawful
title nor color
of right or title
to office!
Jalidity of
HofficialH acts
Jalid as to the
public until
such time as
his title to the
office is
adAudged
insufficient
-bsolutely
void+ they
can be
impeached at
any time in
any
proceeding
"unless and
until he
continues to
act for so long
238
a time as to
afford a
presumption
of his right to
act*
Rule on
compensation
5ntitled to
receive
compensation
only during
the time when
no de Aure
officer is
declared+
Fe is paid
only for actual
services
rendered by
him!
7ot entitled to
compensation
at all!
-n intruder G usurper ripen into a de
facto officer! Bith the passage of time,
a presumption may be created in the
minds of the public that the intruder
has a right to act as a public officer!
Cood faith on the part of the public is a
factor in the ripening of intruder status
into de facto status!
!. Ele$ent of " De F"cto Officer+ip
"1* ;e Aure office
"2* Color of right or general
ac>uiescence by the public+
"3* -ctual physical possession of the
office in good faith
!xamples of t%ose not considered as De 'acto
Officers
- Audge who has accepted an
appointment as finance secretary and
yet renders a decision after having
accepted such appointment "4una v!
Rodrigue$*+
- Audge whose position has already
been abolished by law, and yet
promulgates a decision in a criminal
case after the abolition and over the
obAection of the fiscal "?eople v! %o*
#. Office cre"te, un,er "n
uncontitution"l t"tute
&he prevalent view is that a person
appointed or elected in accordance with a
law later declared to be unconstitutional
may be considered de facto at least
before the declaration of
unconstitutionality!
%. Le-"l Effect of Act of De F"cto Officer
-s regards the officers themselves6 -
party suing or defending in his own right
as a public officer must show that he is
an officer de Aure! 0t is not sufficient that
he be merely a de facto officer!
-s regards the public and third persons6
&he acts of a de facto officer are valid as
to third persons and the public until his
title to office is adAudged insufficient!
R-&0O7-456 #or the protection of the
public
Official -cts of ;e #acto Officers not
subAect to collateral attac@
RD456 &he title of a de facto officer
and the validity of his acts cannot be
collaterally >uestioned in proceedings
to which he is not a party, or which
were not instituted to determine the
very >uestion!
R5'5;L6 Kuo warranto proceedings
o Bho may file6
&he person who claims to be
entitled to the office+
&he Republic of the
?hilippines, represented by
the %olicitorECeneral+ or
a public prosecutor
(. Li"bilitie of De F"cto Officer
&he liability of a de facto officer is
generally held to be the same degree of
accountability for official acts as that of a
de Aure officer!
&he de facto officer may be liable for all
penalties imposed by law for any of the
following acts6
usurping or unlawfully holding office+
eercising the functions of public office
without lawful right+
not being >ualified for the public office
as re>uired by law!
&he de facto officer cannot ecuse his
responsibility for crimes committed in his
official capacity by asserting his de facto
status!
). Ri-+t to Co$pen"tion of De F"cto
Officer
C575R-4 RD456 - de facto officer cannot
maintain an action to recover the salary,
fees or other emoluments attached to
239
the office, even though he has performed
the duties thereof on the theory that the
acts of a de facto officer as far as he
himself is concerned are void!
&he rightful incumbent of a public office
may recover from an officer de facto the
salary received by the latter during the
time of his wrongful tenure, even though
he entered into the office in good faith
and under color of title "(onroy v A*
5/C5?&0O7
Bhere there is no de jure public officer,
the officer de facto who in good faith
has had possession of the office and
has discharged the duties pertaining
thereto, is legally entitled to the
emoluments of the office!
One who becomes a public officer de
facto without bad faith on his part,
and who renders the services
re>uired of the office, may recover
the compensation
)en. (ana*er+ ,%ilippine ,orts Aut%ority
v. (onserate -April ./+ 01102
- de facto officer, not having good
title, ta@es the salaries at his ris@ and must
account to the de jure officer for whatever
salary he received during the period of his
wrongful tenure! 0n fine, the rule is that
where there is a de jure officer, a de facto
officer, during his wrongful incumbency, is
not entitled to the emoluments attached to
the office, even if he occupied the office in
good faith!
Fowever, this rule was not s>uarely
applied in this case since the de jure officer
assumed another position under protest,
for which she received compensation!
&hus, while her assumption to the said
position and her acceptance of the
corresponding emoluments cannot be
considered as an abandonment of her
claim to her rightful office, she cannot
recover full bac@ wages for the period
when she was unlawfully deprived thereof!
%he is only entitled to bac@ pay
differentials between the salary rates for
the lower position she assumed and the
position she is rightfully entitled to!
III. ELI6IBILI*7 AND 8UALIFICA*IONS
A. Definition
5ligibility6 endowment G re>uirement G
accomplishment that fits one for a public
office!
Kualification6 endowment G act which a
person must do before he can occupy a
public office!
7ote6 #ailure to perform an act re>uired
by law could affect the officer=s title to
the given office! Dnder B? 331, the office
of any elected official who fails or refuses
to ta@e his oath of office within si
months from his proclamation shall, shall
be considered vacant unless said failure
is for cause or causes beyond his control!
B. Po2er to Precribe 8u"lific"tion
C575R-4 RD456 Congress is empowered
to prescribe the >ualifications for holding
public office!
Restrictions on the ?ower of Congress to
?rescribe Kualifications6
Congress cannot eceed its
constitutional powers+
Congress cannot impose conditions of
eligibility inconsistent with
constitutional provisions+
&he >ualification must be germane to
the position "Hreasonable relationH
rule*+
Congress cannot prescribe
>ualifications so detailed as to
practically amount to ma@ing an
appointment! "4egislative
appointments are unconstitutional and
therefore void for being a usurpation of
eecutive power!*+
Bhere the Constitution establishes
specific eligibility re>uirements for a
particular constitutional office, the
constitutional criteria are eclusive,
and Congress cannot add to them
ecept if the Constitution epressly or
impliedly gives the power to set
>ualifications!
0n the absence of constitutional
inhibition, Congress has the same right
to provide dis>ualifications that it has to
provide >ualifications for office!
!xamples of le*islative enactments
3%ic% are tantamount to le*islative
appointments#
5tensions of the terms of office of the
incumbents+
240
&he ?eopleIs Court -ct, which provided
that the ?resident could designate
.udges of #irst 0nstance, .udgesEatE
large of #irst 0nstance or Cadastral
.udges to sit as substitute .ustices of
the %upreme Court in treason cases
without them necessarily having to
possess the re>uired constitutional
>ualifications of a regular %upreme
Court .ustice! "Jargas v! Rillora$a*+
- proviso which limits the choices of
the appointing authority to only one
eligible, e!g! the incumbent 'ayor of
Olongapo City "#lores v! ;rilon*+
- legislative enactment abolishing a
particular office and providing for the
automatic transfer of the incumbent
officer to a new office created
"contemplated in 'analang v!
Kuitoriano*+
- provision that impliedly prescribes
inclusion in a list submitted by the
5ecutive Council of the ?hil! 'edical
-ssociation as one of the >ualifications
for appointment+ and which confines
the selection of the members of the
Board of 'edical 5aminers to the 12
persons included in the list "Cuyeg@eng
v! Cru$* +
(analan* v. 4uitoriano
Congress cannot either appoint a
public officer or impose upon the ?resident
the duty to appoint any particular person
to an office! &he appointing power is the
eclusive prerogative ofthe ?resident, upon
which no limitations may be imposed by
Congress, ecept those resulting from6
(1) the need of securing the
concurrence of the Commission
on -ppointments+ and
(2) the eercise of the limited
legislative power to prescribe
the >ualifications to a given
appointive office!
uye*5en* v. ru6
&he power of appointment vested
in the ?resident by the Constitution
connotes necessarily a reasonable measure
of freedom, latitude, or discretion in the
eercise of the power to choose
appointees!
'lores v. Drilon
Bhere only one can >ualify for the
posts in >uestion, the ?resident is
precluded from eercising his discretion to
choose whom to appoint! %uch supposed
power of appointment, sans the essential
element of choice, is no power at all and
goes against the very nature itself of
appointment!
C. *i$e of Poeion of 8u"lific"tion
-t the time specified where the time is
specified by the Constitution or law!
Bhere the Constitution or law is silent,
there are 2 views6
1! >ualification must be at the time of
commencement of term or
induction into office+
2! >ualification G eligibility must eist
at the time of the election or
appointment
5ligibility is a continuing nature, and
must eist throughout the holding of the
public office! Once the >ualifications are
lost, then the public officer forfeits the
office!
astaneda v. 7ap
Mnowledge of ineligibility of a
candidate and failure to >uestion such
ineligibility before or during the election is
not a bar to >uestioning such eligibility
after such ineligible candidate has won and
been proclaimed! 5stoppel will not apply in
such a case!
'rivaldo v. O(!8!
&he citi$enship re>uirement must
be met only on election day! Bhile the
4ocal Covernment Code re>uires residency
of one year immediately preceding election
day and the prescribed age on election
day, no date is specified for citi$enship!
&he purpose of the citi$enship re>uirement
is to ensure leaders owing allegiance to no
other country! %uch purpose is not
thwarted, but instead achieved by
construing the re>uirement to apply at
time of proclamation and at the start of the
term!
D. Contruction of Retriction on
Eli-ibilit'
241
&here is a presumption 07 #-JOR O#
540C0B40&L of one who has been elected
or appointed to public office!
&he right to public office should be
strictly construed against ineligibility!
E. 8u"lific"tion uu"ll' Precribe,
1. For Prei,ent 9Sec. 2: Art. ;I:
Contitution< "n, ;ice Prei,ent 9Sec. !:
Art. ;II: Contitution<
7aturalEborn citi$en
40 years old on day of election
resident of the ?hilippines for at least 10
yrs immediately preceding election day
2. For Sen"tor 9Sec. !: Art. ;I:
Contitution<
7aturalEborn citi$en
3) years old on day of election
able to read and write
registered voter
resident of the ?hilippines for not less
than two years immediately preceding
election day
!. For Con-re$en 9Sec. (: Art. ;I:
Contitution<
7aturalEborn citi$en
2) years old on day of election
able to read and write
registered voter in district in which he
shall be elected
resident thereof for not less than one
year immediately preceding election day
#. Supre$e Court 5utice
7atural born citi$en
at least 40 years old
1) years or more a Audge or engaged in
law practice
of proven C0?0 "competence, integrity,
probity and independence*
%. Ci&il Ser&ice Co$$iioner 9Sec. 1 =1>:
Art. I?B. Contitution<
7aturalEborn citi$en
3) years old at time of appointment
proven capacity for public administration
not a candidate for any elective position
in elections immediately preceding
appointment
(. CO0ELEC Co$$iioner 9Sec. 1=1>:
Art. I?C<
7aturalEborn citi$en
3) years old at time of appointment
college degree holder
not a candidate for elective position in
election immediately preceding
appointment
chairman and maAority should be
members of the bar who have been
engaged in the practice of law for at least
10 years
). COA Co$$iioner
7aturalEborn citi$en
3) years old at time of appointment
C?- with N10 year of auditing eperience
or
Bar member engaged in practice of law
for at least 10 years
7ot have been candidates for elective
position in elections immediately
preceding appointment
ayetano v. (onsod
?ractice of law means any activity,
in or out of court, which re>uires the
application of law, legal procedure,
@nowledge, training and eperience!
Cenerally, to practice law is to give notice
or render any @ind of service which
re>uires the use in any degree of legal
@nowledge or s@ill!
242
A9uino v. O(!8!
Residency of not less than 1 year
prior to the elections for the position of
Congressman! 0n election law, residence
refers to domicile, i!e! the place where a
party actually or constructively has his
permanent home, where he intends to
return! &o successfully effect a change of
domicile, the candidate must prove an
actual removal or an actual change of
domicile! Fere, it was held that leasing a
condominium unit in the district was not to
ac>uire a new residence or domicile but
only to >ualify as a candidate!
(arcos v. O(!8!
;omicile, which includes the twin
elements of actual habitual residence, and
animus manendi, the intention of
remaining there permanently! 0t was held
that domicile of origin is not easily lost,
and that in the absence of clear and
positive proof of a successful change of
domicile, the domicile of origin should be
deemed to continue!
F. Reli-iou *et or 8u"lific"tion
7o religious test shall be re>uired for the
eercise of civil or political rights! "-rt!
000, %ec! ), 123( Constitution*
6. Di@u"lific"tion to Aol, Public Office
IN 6ENERAL6 0ndividuals who lac@ any
of the >ualifications prescribed by the
Constitution or by law for a public office
are ineligible or dis>ualified from holding
such office!
6ener"l Di@u"lific"tion un,er t+e
Contitution
a* 7o candidate who lost in an
election, shall, within one year
after such election, be appointed to
any office in Covernment "-rt! 0/EB
%ec! ,*
b* 7o elective official shall be eligible
for appointment or designation in
any capacity to any public office or
position during his tenure "-rt! 0/E
B %ec! ("1**
c* Dnless otherwise allowed by law or
by the primary functions of his
position, no appointive official shall
hold any other position in
Covernment "-rt! 0/EB %ec ( "2**
7ote6 0n :ational Amnesty ommission
v OA, when another office is held
by a public officer in an ex officio
capacity, as provided by law and as
re>uired by the primary functions
of his office, there is no violation!
Specific Di@u"lific"tion un,er t+e
Contitution
1* &he ?resident, Jice ?resident, the
'embers of the Cabinet and their
deputies or assistants shall not,
unless otherwise provided in the
Constitution, hold any other office or
employment during their tenure "-rt!
J00, %ec! 13*
2* 7o %enator or 'ember of the Fouse
of Representatives may hold any
other office or employment in the
Covernment, or any subdivision,
agency or instrumentality thereof,
including governmentEowned or
controlled corporations or their
subsidiaries, during his term without
forfeiting his seat! 7either shall he be
appointed to any office which may
have been created or the
emoluments thereof increased during
the term for which he was elected
"-rt! J0, %ec 13*
3* &he 'embers of the %upreme Court
and of other courts established by
law shall not be designated to any
agency performing >uasiEAudicial or
administrative functions "-rt! J000,
%ec! 12*
4* 7o 'ember of a Constitutional
Commission shall, during his tenure,
hold any other office or employment!
"-rt! 0/E-, %ec! 2*
)* ?revious dis>ualification applies to
the Ombudsman and his ;eputies
"-rt! /0, %ec! 3*
,* &he Ombudsman and his ;eputies
shall not be >ualified to run for any
office in the election immediately
succeeding their cessation from office
"-rt! /0, %ec! 11*
(* 'embers of Constitutional
Commissions, the Ombudsman and
his ;eputies must not have been
candidates for any elective position
in the elections immediately
preceding their appointment "-rt 0/E
B, %ec! 1+ -rt! 0/EC, %ec! 1+ -rt! 0/E
;, %ec! 1+ -rt /0, %ec! 3*
3* 'embers of Constitutional
Commissions, the Ombudsman and
243
his ;eputies are appointed to a term
of seven "(* years, without
reappointment "%ec! 1"2* of -rts! 0/E
B, C, ;+ -rt! /0, %ec! 11*
&he spouse and relatives by
consanguinity or affinity within the
fourth civil degree of the ?resident
shall not during his tenure be
appointed as 'embers of the
Constitutional Commissions, or the
Office of the Ombudsman, or as
%ecretaries, Dndersecretaries,
chairmen or heads of bureaus or
offices, including government ownedE
or controlled corporations "-rt! J000,
%ec! 13*
O&F5R ;0%KD-40#0C-&0O7%
.. (ental or p%ysical incapacity
2. (isconduct or crime6 persons convicted
of crimes involving moral turpitude are
usually dis>ualified from holding public
office!
;. "mpeac%ment
4. <emoval or suspension from office6
where there is no constitutional or
statutory declaration of ineligibility for
suspension or removal from office, the
courts may not impose the disability
5. ,revious tenure of office6 for eample,
a person who has been elected and has
held the office of ?resident is
absolutely dis>ualified for reelection
6. onsecutive terms6
a! JiceE?resident O 2 consecutive
terms
b! %enator O 2 consecutive terms
c! Representative O 3 consecutive
terms
d! 5lective local officials O 3
consecutive terms
i! Joluntary renunciation of the
office for any length of time
shall not be considered as an
interruption in the continuity
of his service for the full term
for which he was elected!
7. =oldin* more t%an one office# to
prevent offices of public trust from
accumulating in a single person, and to
prevent individuals from deriving,
directly or indirectly, any pecuniary
benefit by virtue of their dual positionE
holding
i. ivil 8iberties Union v. !xecutive
Secretary
1! %ection (, -rticle 0/EB of the
Constitution is meant to lay down
the general prohibition against
the holding of multiple offices or
employment in the government
subsuming both elective and
appointive public officials, unless
otherwise allowed by law or by
the primary functions of his
position! &his provision should
not be applied to the ?resident,
JiceE?resident and cabinet
members since the Constitution,
in %ection 13, -rticle J00,
prescribes a stricter prohibition
on the mentioned officials!
2! &o apply the eceptions found in
%ection (, -rticle 0/EB to %ection
13, -rticle J00 would obliterate
the distinction set by the framers
of the Constitution as to the
highEran@ing officials of the
5ecutive branch!
3! Fowever, the prohibition under
%ection 13, -rticle J00 is not to
be interpreted as covering
positions held without additional
compensation in eEofficio
capacities as provided by law and
as re>uired by the primary
functions of the concerned
official=s office!
>. <elations%ip 3it% t%e appointin* po3er
i! 5ceptions to rule on nepotism6
a! persons employed in a confidential
capacity
b! teachers
c! physicians
d! members of the -rmed #orces of
the ?hilippines
?. Office ne3ly created or t%e
emoluments of 3%ic% %ave been
increased
244
10. Bein* an elective official6 elective
officials are not eligible for
appointment or designation in any
capacity to any public office or position
during his tenure+ he may be
appointed provided he forfeits his seat
... =avin* been a candidate for any
elective position
.0. Under t%e 8ocal )overnment ode
a! &hose sentenced by final Audgment
for an offense involving moral
turpitude or for an offense
punishable by 1 year or more of
imprisonment, within 2 years after
serving sentence+
b! &hose removed from office as a
result of an administrative case+
c! &hose convicted by final Audgment
for violating the oath of allegiance to
the Republic+
d! &hose with dual citi$enship+
e! #ugitive from Austice in criminal or
nonEpolitical cases here or abroad+
f! ?ermanent residents in a foreign
country or those who have ac>uired
the right to reside abroad and
continue to avail of the same right
after the effectivity of the 4ocal
Covernment Code+
g! &he insane or feebleEminded!

I;. FOR0A*ION OF OFFICIAL RELA*ION

A. 0o,e of Co$$encin- Offici"l Rel"tion
5lection
-ppointment
Others6
%uccession by operation of law+
;irect provision of law, e!g! eEofficio
officers
B. Election
%election or designation by a popular
vote
C. Appoint$ent
1. Definition
;esignation -ppointment
;efinition 0mposition of
additional
duties upon
an eisting
%election of an
individual to
occupy a
certain public
office office by one
authori$ed by
law to ma@e
such selection
5tent of
?owers
4imited Comprehensive
%ecurity of
tenureP
7o! Les!
Bhen
deemed
abandonment
of prior office
-ssumption
of a
designated
position is
not deemed
abandonment
of the 1st
position
-ssumption of
a 2nd
appointive
position is
usually deemed
abandonment
of the first
office!
2. N"ture of Appointin- Po2er
&he power to appoint is intrinsically an
eecutive act involving the eercise of
discretion! "Concepcion v! ?aredes*
&he power and prerogative to a vacant
position in the civil service is lodged with
the appointing authority!
!. Cl"ific"tion of Appoint$ent
?ermanent 6 etended to a person
possessing the re>uisite >ualifications,
including the eligibility re>uired, for the
position, and thus protected by the
constitutional guaranty of security of
tenure
E lasts until they are lawfully
terminated
&emporary 6 an acting appointment+ it is
etended to one who may not possess
the re>uisite >ualifications or eligibility
re>uired by law for the position, and is
revocable at will, wGo the necessity of
Aust cause or a valid investigation
E lasts until a permanent appointment
is issued
'ere fact that a position belongs to the
Career %ervice of the Civil %ervice
Commission does not automatically
confer security of tenure! Bhere the
appointee doe not possess the
>ualifications for the position, the
appointment is temporary and may be
terminated at will
245
-cceptance of a temporary appointment
results in the termination of official
relationship with former position!
"<omualde6 """ v S2
- mere designation does not confer
security of tenure, as the person
designated occupies the position only in
an acting capacity "Sevilla v A*
Bhere the appointment is subAect to
conditions, it is not permanent! Fowever,
where the temporary appointment is for
a fied period, the appointment may be
revo@ed only at the epiration of the
period or if revocation made before such
epiration, it must be for a valid cause!
#. Step in Appointin- Proce
#or -ppointments which re>uire
confirmation6

Re-ul"r Appoint$ent
1! 7omination by the ?resident
2! Confirmation by the Commission on
-ppointments
3! 0ssuance of the commission
4! -cceptance by the appointee
A,BInteri$ Appoint$ent
1! 7omination by the ?resident
2! 0ssuance of the commission
3! -cceptance by the appointee
4! Confirmation by the Commission on
-ppointments
#or -ppointments which do not re>uire
confirmation
1! -ppointment by the appointing
authority
2! 0ssuance of the commission
3! -cceptance by the appointee
7ote6 Bhere the appointment is to the
career service of the Civil %ervice, attestation
of the Civil %ervice Commission is re>uired
!. Prei,enti"l Appointee
&he following shall be nominated and
appointed by with the consent of the
Commission on -ppointments
- Feads of the eecutive departments
"-rt! J00, %ec! 1,, 123( Const!*+
- -mbassadors "ibid*+
- Other public ministers and consuls
"ibid*+
- Officers of the armed forces from the
ran@ or colonel or naval captain "ibid*+
- Other officers whose appointments are
vested in him by the Constitution
"ibid*, including Constitutional
Commissioners "-rt! 0/EB, %ec! 1 "2*
for C%C+ -rt! 0/EC, %ec! 1 "2* for
CO'545C+ -rt! 0/E;, %ec! 1 "2* for
CO-*!
&he following can be appointed by the
?resident without the need for C-
approval
-ll other officers of the government
whose appointments are not otherwise
provided for by law+
&hose whom he may be authori$ed by
law to appoint+
'embers of the %upreme Court+
.udges of lower courts+
Ombudsman and his deputies
Minds of ?residential -ppointments
Regular6 made by the ?resident while
Congress is in session after the
nomination is confirmed by the
Commission of -ppointments, and
continues until the end of the term!
-d interim6 made while Congress is not
in session, before confirmation by the
Commission on -ppointments+
immediately effective and ceases to be
valid if disapproved or bypassed by the
Commission on -ppointments! &his is a
permanent appointment and it being
subAect to confirmation does not alter its
permanent character!
-
o Recess appointment power @eeps
in continuous operation the
business of government when
Congress is not in session!
o &he appointment shall cease to be
effective upon reAection by the
Commission on -ppointments, or if
not acted upon, at the
adAournment of the net session,
regular or special, of Congress!
(atiba* v. Benipayo -April 0+ 01102
-n ad interim appointment is a
permanent appointment because it ta@es
effect immediately and can no longer be
withdrawn by the ?resident once the
appointee has >ualified into office! &he
fact that it is subAect to confirmation by the
Commission on -ppointments does not
alter its permanent character! &he
246
Constitution itself ma@es an ad interim
appointment permanent in character by
ma@ing it effective until disapproved by the
Commission on -ppointments or until the
net adAournment of Congress!
-n ad interim appointment is
distinguishable from an 8acting9
appointment which is merely temporary,
good until another permanent appointment
is issued!
%aid appointment is also distinguished
from the eercise of presidential
prerogative re>uiring confirmation by the
Commission on -ppointments when
Congress is in session! 0n the latter, the
?resident nominates, and only upon the
consent of the Commission on
-ppointments may the person thus named
assume office! 0t is not so with reference
to ad interim appointments, as they ta@e
effect at once! &he individual chosen may
thus >ualify and perform his function
without loss of time!
0n this case, the ad interim
appointments of the CO'545C
Commissioners, being permanent
appointments, do not violate the
Constitutional prohibition on temporary or
acting appointments of CO'545C
Commissioners!
'oreover, the failure of the
Commission on -ppointments to confirm
the ad interim appointment does not
amount to a disapproval by the said
Commission! &here is no dispute that an
ad interim appointee disapproved by the
CO- can no longer be etended a new
appointment! On the other hand, a byE
passed appointee, or one whose
appointment has not been finally acted
upon the merits by the CO-, may be
appointed again by the ?resident!
D. 8u"lific"tion St"n,"r, "n,
Re@uire$ent un,er t+e Ci&il Ser&ice L"2
1. 8u"lific"tion St"n,"r,
5press the minimum re>uirements for a
class of positions in terms of education,
training and eperience, civil service
eligibility, physical fitness, and other
>ualities re>uired for successful
performance! "%ec! 22, Boo@ J, 5O 222*
0t shall be the responsibility of the
departments and agencies to establish,
administer and maintain the >ualification
standards on a continuing basis as an
incentive to career advancement! "%ec!
(, Rule 0J, Omnibus Rules*
&heir establishment, administration, and
maintenance shall be the responsibility of
the department G agency, with the
assistance and approval of the C%C and
in consultation with the Bage and
?osition Classification Office "ibid*
%hall be established for all positions in
the 1st and 2nd levels "%ec! 1, Rule 0J,
Omnibus Rules*
2. Politic"l 8u"lific"tion for "n Office
9i.e.: $e$ber+ip in " politic"l p"rt'<
C575R-4 RD456 ?olitical >ualifications
are not re>uired for public office!
- 5/C5?&0O7%6
o 'embership in the electoral
tribunals of either the Fouse of
Representatives or %enate "-rt! J0,
%ec! 1(, 123( Const!*+
o ?artyElist representation+
o Commission on -ppointments+
o Jacancies in the %anggunian "%ec!
4), 4ocal Covernment Code*
!. Propert' 8u"lific"tion
0n the cases of 'a>uera v! Borra and
-urea v! CO'545C, the %upreme Court
held that property >ualifications are
inconsistent with the nature and essence
of the Republican system ordained in our
Constitution and the principle of social
Austice underlying the same! &he Court
reasoned out that Hsovereignty resides in
the people and all government authority
emanates from them, and this, in turn,
implies necessarily that the right to vote
and to be voted shall not be dependent
upon the wealth of the individual
concerned! %ocial Austice presupposes
e>ual opportunity for all, rich and poor
ali@e, and that, accordingly, no person
shall, by reason of poverty, be denied the
chance to be elected to public office!H
#. Citi4en+ip
-liens not eligible to public office
%. Effect of re$o&"l of @u"lific"tion
,urin- t+e ter$
&he officer must be terminated!
(. Effect of p"r,on upon t+e
,i@u"lific"tion to +ol, public office
247
C575R-4 RD456 - pardon shall not
wor@ the restoration of the right to hold
public office! "-rt! 3,, Revised ?enal
Code*
- 5/C5?&0O7%6
o Bhere such right to hold public office
is epressly restored by the terms of
the pardon "-rt! 3,, R?C*+
o Bhen a person is granted pardon
because he did not commit the
offense imputed to him "Carcia v!
Chairman, CO-*
E. Dicretion of Appointin- Offici"l
;iscretion, if not plenary, at least
sufficient, should thus be granted to
those entrusted with the responsibility of
administering the officers concerned,
primarily the department heads! &hey
are in the most favorable position to
determine who can best fulfill the
functions of the office thus vacated!
Dnless, therefore, the law spea@s in the
most mandatory and peremptory tone,
considering all the circumstances, there
should be, as there has been, full
recognition of the wide scope of such
discretionary authority! "Reyes v!
-beleda*
-ppointment is an essentially
discretionary power and must be
performed by the officer in which it is
vested, the only condition being that the
appointee should possess the
>ualifications re>uired by law! "4apinid
v! C%C*
&he discretion of the appointing authority
is not only in the choice of the person
who is to be appointed but also in t%e
nature and c%aracter of t%e appointment
intended "i!e!, whether the appointment
is permanent or temporary*!
-ppointment is generally a political
>uestion so long as the appointee fulfills
the minimum >ualification re>uirements
prescribed by law!
&he only function of the C%C is to review
the appointment in the light of the
re>uirements of the Civil %ervice 4aw,
and when it finds the appointee to be
>ualified and all other legal re>uirements
have been otherwise satisfied, it has no
choice but to attest to the appointment!
0t cannot order the replacement of the
appointee simply because it considers
another employee to be better >ualified!
"4apinid v! C%C*
&o hold that the Civil %ervice 4aw
re>uires that any vacancy be filled by
promotion, transfer, reinstatement,
reemployment, or certification in that
order would be tantamount to legislative
appointment which is repugnant to the
Constitution! &he re>uirement under the
Civil %ervice 4aw that the appointing
power set forth the reason for failing to
appoint the officer net in ran@ applies
only in cases of promotion and not in
cases where the appointing power
chooses to fill the vacancy by transfer,
reinstatement, reemployment or
certification, not necessarily in that
order! "?ineda v! Claudio* "c!f!
highlighted part in paragraph in net
column*
&he C%C is not empowered to change the
nature of the appointment etended by
the appointing officer, its authority being
limited to approving or reviewing the
appointment in the light of the
re>uirements of the Civil %ervice 4aw!
Bhen the appointee is >ualified and all
the legal re>uirements are satisfied, the
C%C has no choice but to attest to the
appointment! "4uego v! C%C*
Bhere the palpable ecess of authority
or abuse of discretion in refusing to issue
promotional appointment would lead to
manifest inAustice, mandamus will lie to
compel the appointing authority to issue
said appointments! "Cesolgon v! 4acson*
#or the appointment to be valid, the
position must be vacant "Costin v
Kuimbo*
Bhile the Civil %ervice 4aw grants career
service officers preference in promotion
under the 8netEinEran@9 rule, it is not
mandatory that the appointing authority
fill a vacancy by promotion, as the
appointing authority should be allowed
the choice of men of his confidence!
?rovided they are >ualified and eligible!
248
%ec! 2, Chapter 00, &itle 000 Boo@ 0J of
the -dmin Code provides that all
provincial and city prosecutors and their
assistants shall be appointed by the
?resident upon recommendation of the
%ecretary of .ustice! &he phrase 8upon
recommendation of the %ec! of .ustice9
should be interpreted to be a mere
advise, which is persuasive in character
but is not binding or obligatory upon the
person to whom it is made!
F. Effecti&it' of Appoint$ent
-n appointment ta@es effect immediately
upon its issuance by the appointing
authority! "Rule J, %ec! 10, Omnibus
Rules*!
6. Effect of " co$plete: fin"l "n,
irre&oc"ble "ppoint$ent
C575R-4 RD456 -n appointment, once
made, is irrevocable and not subAect to
reconsideration!
- completed appointment vests a legal
right! 0t cannot be ta@en away 5/C5?&
for cause, and with previous notice and
hearing "due process*!
Kualification6 Bhere the assent,
confirmation, or approval of some other
officer or body is needed before the
appointment may be issue and be
deemed complete!
5/C5?&0O7%6
- Bhen the appointment is an absolute
nullity "'itra v! %ubido*+
- Bhen there is fraud on the part of the
appointee "'itra v! %ubido*+
- 'idnight appointments
o - ?resident or -cting ?resident is
prohibited from ma@ing
appointments 2 months
immediately before the net
presidential elections and up to the
end of his term! "-rt! J00, %ec! 1),
123( Const!*
o 5ception6 &emporary
appointments to eecutive
positions when continued
vacancies therein will preAudice
public service or endanger public
safety!
A. 5uri,iction of t+e Ci&il Ser&ice
Co$$iion 9CSC<
&he following are within the eclusive
Aurisdiction of the C%C6 ;isciplinary cases
and cases involving 8personnel action9
affecting the employees of the Civil
%ervice, including 8appointment through
certification, promotion, transfer,
reinstatement, reemployment, detail,
reassignment, demotion and separation,9
as well as employment status and
>ualification standards!
0ncludes the authority to recall an
appointment which has been initially
approved when it is shown that the same
was issued in disregard of pertinent C%C
laws, rules and regulations!
&he C%C is not a coEmanager or surrogate
administrator of government offices and
agencies! 0ts authority is limited to
approving or reviewing appointments!
I. Appoint$ent to t+e Ci&il Ser&ice
SCOPE6 5mbraces all branches,
subdivisions, instrumentalities and
agencies of the Covernment, including
COCCs with original charters "-rt! 0/EB
%ec! 2"1*, Constitution*
Cl"e of Ser&ice
"< C"reer Ser&ice C 5ntrance based on
merit and fitness determined by
competitive eaminations, or based on
highly technical >ualifications,
opportunity for advancement to higher
career positions and security of tenure!
b< NonBc"reer Ser&ice C 5ntrance on
bases other than those of the usual
testes! &enure limited to a period
specified by law or which is coterminous
with the appointing authority or the
duration of a particular proAect! 5!
elective officials, ;epartment Feads and
'embers of Cabinet
Re@uiite6
"i* %hall be made only according to
merit and fitness to be determined,
as far as practicable
"ii* By competitive eamination
E1e$pt fro$ t+e co$petiti&e
e1"$in"tion re@uire$ent "re
"ppoint$ent to poition 2+ic+ "reD
,olicy determinin* E in which the
officer lays down
principal or fundamental
guidelines or rules+ or
formulates a method of
action for government or
any of its subsidiaries
249
,rimarily onfidential Q denoting
not only confidence in
the aptitude of the
appointee for the duties
of the office but primarily
close intimacy which
ensures freedom of
intercourse without
embarrassment or
freedom from misgivings
or betrayals on
confidential matters of
the state
"8?roimity Rule9 as
enunciated in ;e los
%antos v 'allare*
E
=i*%ly Tec%nical Q re>uires
possession of technical
s@ill or training in a
superior degree! e! City
4egal Officer
7O&56 0t is the nature of the
position which determines
whether a position is policy
determining, primarily
confidential or highly technical
Ot+er Peronnel Action
,romotion is a movement from one position to
another with increase in duties and
responsibilities as authori$ed by law and
usually accompanied by an increase in pay!
(i) 7etEinEran@ rule ! &he person net
in ran@ shall be given preference in
promotion when the position
immediately above his is vacated!
But the appointing authority still
eercises discretion and is not
bound by this rule, although he is
re>uired to specify the 8special
reason or reasons9 for not
appointing the officer netEinEran@
"ii* -utomatic Reversion rule Q -ll
appointments involved in a chain of
promotions must be submitted
simultaneously for approval by the
Commission! &he disapproval of
the appointment of a person
proposed to a higher position
invalidates the promotion of those
in the lower positions and
automatically restores them to
their former positions! Fowever,
the affected persons are entitled to
payment of salaries for services
actually rendered at a rate fied in
their promotional appointments
"%ec! 13 of the Omnibus Rules
0mplementing 5O 222* #or this rule
to apply, the following must
concur6
a* there must be a
series of
promotions
b* all promotional
appointments are
simultaneously
submitted to the
Commission for
approval
c* the Commission
disapproves the
appointment of a
person to a higher
position!
Appointment t%rou*% ertification is issued to
a person who has been selected from a list
of >ualified persons certified by the Civil
%ervice Commission from an appropriate
register of eligibles, and who meets all the
>ualifications prescribed for the position
Transfer is a movement from one position to
another which is of e>uivalent ran@, level
or salary without brea@ in service! &his
may be imposed as an administrative
remedy!
E -n unconsented transfer violates
security of tenure! Fowever this does
not apply to a holder of a temporary
appointment or to Career 5ecutive
%ervice ?ersonnel whose status and
salaries are based on their ran@s and
not on the positions to which they are
assigned
<einstatement -ny person who has been
permanently appointed to a position in
the career service and who has, through
no delin>uency or misconduct, been
separated therefrom, may be reinstated
to a position in the same level for which
he is >ualified!
E 0t is technically the issuance of a
new appointment and is discretionary
on the part of the appointing power+ it
cannot be the subAect of an application
for a writ of mandamus
B Fowever, the bestowal of eecutive
clemency completely obliterates the
adverse effects of the administrative
250
decision which found him guilty of
dishonesty! &his signifies that
petitioner need no longer apply for
reinstatement as he is restored ipso
facto upon the issuance of clemency
Detail is the movement of an employee from
one agency to another without the
issuance of an appointment, and shall
be allowed only for a limited period in
the case of employees occupying
professional, technical and scientific
positions! 0t is temporary in nature!
<eassi*nment -n employee may be
reassigned from one organi$ational unit
to another in the same agency, provided
that such reassignment shall not involve
a reduction in ran@, status or salary! 0t is
a management prerogative of the C%C
and any dept or agency embraced in the
Civil %ervice and does not constitute
removal without cause!
E But li@e detail, the reassignment
should have a definite date or duration!
Otherwise, it is tantamount to a
floating assignment, thus a diminution
in status or ran@
<eemployment 7ames of persons who
have been appointed permanently to
positions in the career service and who
have been separated as a result of
reduction in force andGor reorgani$ation,
shall be entered in a list from which
selection from reemployment shall be
made!
;. ASSU0P*ION AND *ER0 OR *ENURE OF
OFFICE
A. 8u"lific"tion to Office
1. Appoint$ent "n, 8u"lific"tion to Office
Ditin-ui+e,
-ppointment is the act of being designated
to a public office by the appointing
authority!
Kualification is the act of signifying oneIs
acceptance of the appointive position! &his
generally consists of the ta@ing G
subscribing G filing of an official oath, and
in certain cases, of the giving of an official
bond, as re>uired by law! "'echem*
Borromeo v. (ariano
- Audge may not be made a Audge
of another district without his consent!
-ppointment and >ualification to office are
separate and distinct things! -ppointment
is the sole act of the appointee! &here is
no power which can compel a man to
accept the office!
2. Effect of F"ilure to 8u"lif'
#ailure to >ualify is deemed evidence of
refusal of the office!
0t is a ground for removal
- 0f >ualification is a condition precedent,
failure to >ualify ipso facto deemed
reAection of the office
- 0f not condition precedent, failure is
not ipso facto reAection
.ustifiable reasons for delay in >ualifying6
sic@ness, accident, and other fortuitous
events that ecuse delay!
&he Omnibus 5lection Code provides that
the officer must >ualify "i!e!, ta@e his
oath of office and assume office* within ,
months from proclamation! Otherwise,
the position will be deemed vacant!
- 5ception6 0f the nonEassumption of
office is due to a cause beyond his
control!
Kualification is significant because it
designates when security of tenure begins!
B. O"t+ of Office
1. Definition
-n oath is an outward pledge whereby
one formally calls upon Cod to witness to
the truth of what he says or to the fact
that he sincerely intends to do what he
says!
0t is not indispensable! 0t is a mere
incident to the office and constitutes no
part of the office itself! Fowever, the
?resident, JiceE?resident and -cting
?resident are re>uired by the
Constitution "-rt! J00, %ec! )* to ta@e an
oath or affirmation before entering into
the eecution of their office! %uch oathE
ta@ing is mandatory!
Fowever, as per 7achura Only when
the public officer has satisfied the
prere>uisite of ta@ing his oath of office
can his right his position be considered
plenary and complete! Dntil then, the
holdover officer is the rightful occupant
"4ecaro$ v %andiganbayan*
251
2. Peron Aut+ori4e, to A,$initer O"t+
7otaries public+
.udges+
Cler@s of court+
%ecretary of Fouse G %enate+
%ecretary of 5ec! ;epartments+
Bureau ;irectors+
Register of ;eeds+
?rovincial governors+
City mayors+
'unicipal mayors+
-ny other officer in the service of the
government of the ?hilippines whose
appointment is vested in the ?resident
-ny other officer whose duties, as defined
by law or regulation, re>uire presentation
to him of any statement under oath
!. Peron Obli-e, to A,$initer O"t+ in
All Int"nce:
7otaries public
'unicipal Audges
Cler@s of court
#. *i$e of *"Ein- t+e O"t+ of Office
- public officer must ta@e his oath of office
before entering upon the discharge of his
duties!
%. Re@u"lific"tion
0f a public officer is reEelected or reE
appointed, he must ta@e another oath and
fulfill the other condition precedents before
assuming office! &he oath and other
>ualifications made prior to assumption of
his previous office will not be valid for
subse>uent terms of office!
C. 6i&in- of Bon,
1. *+e Bon,
0t is in the nature of an indemnity bond
rather than a penal or forfeiture bond!
0t is an obligation binding the sureties to
ma@e good the officer=s default!
0t is re>uired not for the benefit of the
office holder, but for the protection of the
public interest and is designed to indemnify
those suffering loss or inAury by reason of
misconduct or neglect in office!
2. Peron Re@uire, to 6i&e Bon,
-ccountable public officers or those to
whom are entrusted the collection and
custody of public money+
?ublic ministerial officers whose actions
may affect the rights and interests of
individuals!
!. Effect of F"ilure to 6i&e Bon, 2it+in t+e
Precribe, Perio,
0f not condition precedent, failure to give
bond merely constitutes a ground for
forfeiture of the office! 0t is not forfeiture of
the office ipso facto!
0f condition precedent, failure to give bond
within the prescribed period renders the
office vacant!
D. *er$ "n, *enure of Office
1. *er$ of Office "n, *enure of Office
Ditin-ui+e,
2. Po2er of t+e Le-il"ture to Fi1 "n,
C+"n-e t+e *er$ of Office
Bhere the term is fied by the
Constitution, Congress has no power to
alter the term!
- But such term of office can be
shortened or etended by the vote of
the people ratifying a constitutional
amendment!
Bhere the term is not fied, Congress may
fi the terms of officers other than those
provided for in the Constitution!
Congress has the power to change the
tenure of officers holding offices created by
it! Fowever, if the term is lengthened and
made to apply to the incumbents, this
could be tantamount to a legislative
appointment which is null and void!
!. W+en *er$ of Office Depen,ent upon
FPle"ure of t+e Prei,entF
Congress can legally and constitutionally
ma@e the tenure of certain officials
dependent upon the pleasure of the
?resident! "-lba v! 5vangelista*
Bhere the office is held at the pleasure of
the appointing power and such appointing
power can eercise the power of removal
at his mere discretion, the public officer
may be removed without notice or hearing!
"-lba v! 5vangelista*
*er$ of Office *enure of Office
;e Aure ;e facto
#ied and definite period of
time during which the
officer may claim to hold
the office as of right
?eriod during which the
incumbent actually holds
the office! 0t may be
shorter than the term!
252
#. No ;ete, Interet in *er$ of Office
?ublic office is a privilege revocable by the
sovereignty at will! -n incumbent cannot
validly obAect to the alteration of his term
since he has no vested right in his office!
"Creenshow v! D!%!*
%. *er$ of Office Not E1ten,e, b' Re"on
of W"r
&here is no principle, law or doctrine by
which the term may be etended by reason
of war! "7ueno, et al! v! -ngeles*
E. Doctrine of Aol,o&er
1. *+e Doctrine
- public officer whose term has epired or
services have been terminated is allowed
to continue holding his office until his
successor is appointed or chosen and had
>ualified! "'echem*
2. Purpoe of t+e Aol,BO&er Rule
?ublic interest! 0t is to prevent a hiatus in
the public service pending the time when a
successor may be chosen and inducted into
office!
!. Aol,in-BO&er Rule
Bhere the law provides for it6 &he office
does not become vacant upon the
epiration of the term if there is no
successor elected and >ualified to assume
it! 0ncumbent will holdEover even if
beyond the term fied by law!
Bhere the law is silent6 Dnless holdEover is
epressly or impliedly prohibited,
incumbent may holdEover! 4awEma@ing
body favors holdEover ecept when the law
fies a specific date for the end of the
term, therefore there is an implied
prohibition against hold over
Bhere the Constitution limits the term of a
public officer and does not provide for
holdEover6 FoldEover is not permitted!
7ote6 -rt 23( of the Revised ?enal Code
penali$es any public officer who shall
continue to eercise the duties and powers
of his office beyond the period provided by
law!
;uring this period of holdEover, the public
officer is a de jure officer
F. Co$$ence$ent of *er$ of Office
1. W+ere t+e ti$e i fi1e,
&he term will begin on the specified date!
2. W+ere no ti$e i fi1e,
&he term will generally begin on the date
of the election or the appointment!
!. W+ere t+e l"2 fi1in- t+e ter$ of office
i "$bi-uou
&he one that fies the term at the shortest
period should be followed
#. In c"e of &"c"nc' "n, bot+ t+e
,ur"tion of t+e ter$ of office "n, t+e
ti$e of it co$$ence$ent "n,
ter$in"tion i fi1e,
?erson elected to fill the vacancy shall hold
the same only for the unepired portion of
the term
%. W+ere onl' t+e ,ur"tion of t+e ter$ i
fi1e, but not t+e be-innin- or en, of
t+e ter$
?erson selected to fill the vacancy may
serve the full term
(. W+ere "n officer i "ppointe, or office
cre"te, to perfor$ " in-le "ct
Office terminates with the accomplishment
of the purposes for which it was called into
being!
;I. POWERS AND DU*IES OF PUBLIC
OFFICERS
A. Source of 6o&ern$ent Aut+orit'
&he people, the sovereignty
&he authority of public officers consists of
those powers which are6
"a* 5pressly conferred upon him by the
act appointing him
"b* 5pressly anneed to the office by
law
"c* -ttached to the office by common
law as incidents to it
B. Scope of Po2er of " Public Officer
&he duties of a public office includes all
those which truly are within its scope
under the Doctrine of :ecessary
"mplication#
"1* those which are essential to the
accomplishment of the main purpose for which
the office was created+ or
"2* those which, although incidental or
collateral, are germane to and serve to
promote the accomplishment of the principal
purpose "4o Cham v! Ocampo*!
253
7eedless to say, powers epressly granted
by law are within the scope of the public
office!
C. *erritori"l E1tent of Po2er of Public
Officer
C575R-4 RD456 Bhere a public officer is
authori$ed by law to perform the duties of
his office at a particular place, action at a
place not authori$ed by law is ordinarily
invalid! "7ote6 &his rule is applicable to all
public officers whose duties are essentially
local in nature, e!g! Audges!*
5/C5?&0O7%6
- Consuls+
- ?olice officers, who may arrest persons
for crimes committed outside ?hilippine
territory+
- ;octrine of hot pursuit
D. Dur"tion of Aut+orit' of Public Officer
&he duration of the authority of public
officers is limited to that term during which
he is, by law, invested with the rights and
duties of the office!
E. Contruction of 6r"nt of Po2er
%trict construction! Crant of powers will be
construed as conferring only those powers
which are epressly imposed or necessarily
implied!
F. Cl"ific"tion of Po2er
Dicretion"r' 0initeri"l
;efinition -cts which
re>uire the
eercise of
reason in
determining
when, where,
and how to
eercise the
power
-cts which are
performed in a
given state of
facts, in a
prescribed
manner, in
obedience to
the mandate of
legal authority,
without regard
to or the
eercise of his
own Audgment
upon the
propriety or
impropriety of
the act done
"4amb v!
?hipps*
Can be Cenerally, 7O! Cenerally, L5%!
delegatedP
5ception6
Bhen the
power to
substitute G
delegate has
been given
5ception6
Bhen the law
epressly
re>uires the act
to be
performed by
the officer in
person and G or
prohibits such
delegation
Bhen is
mandamus
properP
Only if the duty
to do
something has
been delayed
for an
unreasonable
period of time!
0n these cases,
mandamus will
usually compel
the officer to
ma@e a
decision, but
will not dictate
as to what the
decision will or
should be!
0n all cases!
0s public
officer
liableP
Cenerally not
liable
5ceptions6 if
there is fraud
or malice
4iable if duty
eercised
contrary to the
manner
prescribed by
law!
1. Dicretion"r' Po2er
;iscretion, when applied to public
functionaries, means a power or right
conferred upon them by law of acting
officially in certain circumstances,
according to the dictates of their own
Audgment and conscience, uncontrolled by
the Audgment or conscience of others!
"4amb v! ?hipps*
Ceneral Rule6 'andamus will not issue to
control or review the eercise of discretion
of a public officer where the law imposes
on him the right or duty to eercise
Audgment in reference to any matter in
which he is re>uired to act "-prueba v!
Can$on*!
5ception6
(i) Bhere there is grave abuse of
discretion, manifest inAustice or
palpable ecess of authority
254
e>uivalent to a denial of a settled
right to which the petitioner is
entitled, and where there is no
other plain, speedy or ade>uate
remedy! "#irst ?hil! Foldings Corp
v %andiganbayan*
"A* Brit may issue to compel the
eercise of discretion but not the
discretion itself "B# Fomes v
7ational Bater Resources Council*
.udgment v ;iscretion
Jud*ment is a Audicial function, the
determination of a >uestion of law! &here is
only one way to be right!
Discretion is the faculty conferred upon a
court or other officer which he may decide
the >uestion either way and still be right!
2. 0initeri"l Po2er
- purely ministerial act is one which an
officer or tribunal performs in a given state
of facts, in a prescribed manner, in
obedience to the mandate of legal
authority, without regard to or the eercise
of his own Audgment upon the propriety or
impropriety of the act done! - ministerial
act is one to which nothing is left to the
discretion of the person who must perform!
0t is a simple, definite duty arising under
conditions admitted or proved to eist and
imposed by law! 0t is a precise act,
accurately mar@ed out, enAoined upon
particular officers for a particular purpose!
"4amb v! ?hipps*
8amb v. ,%ipps
-uditors and comptrollers, as
accounting officers, are generally regarded
as >uasiEAudicial officers! &hey perform
mere ministerial duties only in cases where
the sum due is conclusively fied by law or
pursuant to law! 5cept in such cases, the
action of the accounting officers upon
claims coming before them for settlement
and certification of balances found by them
to be due, is not merely ministerial but
Audicial and discretionary! 'andamus will
therefore not issue!
Torres v. <ibo
&he powers of the Board of
Canvassers are >uasiEAudicial and therefore
discretionary!
Aprueba v. )an6on
'andamus will not issue to control or
review the eercise of discretion of a public
officer where the law imposes on him the
right or duty to eercise Audgment in
reference to any matter in which he is
re>uired to act!
&he privilege of operating a mar@et
stall under license is not absolute but
revocable under an implied lease contract
subAect to the general welfare clause!
'andamus never lies to enforce the
performance of contractual obligations!
(i*uel v. Zulueta
?ublic officers may properly be
compelled by mandamus to remove or
rectify an unlawful act if to do so is within
their official competence!
6. Dutie of Public Officer
1. 6ener"l 9Contitution"l< ,utie of
public officer
a* &o be accountable to the people+ to
serve them with utmost responsibility,
integrity, loyalty and efficiency= to act
with patriotism and Austice, and to lead
modest lives "-rt! /0, %ec! ,*
b* &o submit a declaration under oath of
his assets, liabilities and new worth
upon assumption of office and as often
thereafter as may be re>uired by law
"-rt! /0, %ec 1(*
c* &o owe the %tate and the Constitution
allegiance at all times "-rt! /0, %ec!
13*
2. Specific C"e
&he %olicitor Ceneral=s duty to represent
the government ecept in criminal
cases or civil cases for damages arising
from felony, is mandatory "Con$ales v
Chave$*
&he government is not estopped from
>uestioning the acts of its officials,
more so if they are erroneous or
irregular
A. *i$e of E1ecution of Po2er
1. W+ere not in,ic"te,
Bithin a reasonable time
2. W+ere in,ic"te,
'erely directory
255
5ceptions6
- Bhen there is something in the statute
which shows a different intent
"-raphoe City v! Dnion ?ac*+
- Bhere a disregard of the provisions of
the statute would inAuriously affect a
public interest or public right+
- Bhen the provision is accompanied by
negative words importing that the acts
shall not be done in any other manner
or time than that designated!
I. R"tific"tion of Un"ut+ori4e, Act
1. If "ct 2" "bolutel' &oi, "t t+e ti$e it
2" ,one
Cannot be ratified
2. If $erel' &oi,"ble
Can be ratified and rendered valid
!. 6o&ern$ent not etoppe, b' t+e
un"ut+ori4e, or ille-"l "ct of officer
-s between an individual and his
government, the individual cannot plead
the void act of an official to shield him from
the demand of the government that he
"the individual* fulfill an obligation which
he has contracted with the government,
after the benefits accruing to him as a
result of that obligation have been
received! &he government can neither be
estopped nor preAudiced by the illegal acts
of its servants! "Covernment v! Calarosa*
=ilado v. ollector
- ta circular issued on a wrong
construction of the law cannot give rise to
a vested right that can be invo@ed by a
tapayer!
I. Account"bilit' "n, Reponibilit' of
Public Officer "n, E$plo'ee
7orm of ?erformance of ;uties6 standards
of personal conduct provided for in %ec! 4,
R- ,(13
- Commitment to public interest+
- ?rofessionalism+
- .ustness and sincerity+
- ?olitical neutrality+
- Responsiveness to the public+
- 7ationalism and patriotism+
- Commitment to democracy+
- %imple living
5. Pro+ibition
(a) ,artisan political activity 7o officer or
employee of the civil service shall engage,
directly or indirectly, in any electioneering
or partisan political campaign! "%ec! 0/EB,
%ec! )"3**
&he Civil %ervice 4aw prohibits
engaging directly or indirectly in any
partisan political activity or ta@ing
part in any election ecept to vote+
or use the official authority to coerce
in the political activity of any person
or body
-rmed #orce shall be insulated from
partisan politics! 7o member of the
military shall engage directly or
indirectly in any partisan political
activity, ecept to vote
Fowever, this prohibition does 7O&
prevent epression of views on
current political problems "Calte v
Bonifacio*
&his provision is diff from %ec! (2 B?
331 which ma@es it unlawful for any
person or any political party to
engage in election campaign or
partisan political activity ecept
during campaign period! 5lection
campaign or partisan political activity
refers to an act designed to promote
the election or defeat of a
candidateGs to public office! 0f done
for the purpose of enhancing the
chances of aspirants for nomination
for candidacy to a public office by a
political party, it shall not be
considered as election campaign or
partisan political activity!
(b) Additional or double compensation. 7o
elective or appointive public officer or
employee shall receive additional, double,
or indirect compensation unless specifically
authori$ed by law, nor accept without the
consent of Congress, any present
emolument, office or title of any @ind from
any foreign government "-rt! 0/EB, %ec! 3*
(c) ,ro%ibition a*ainst loans. 7o loan,
guaranty, or other form of financial
accommodation for any business purpose
may be granted, directly or indirectly, by
any governmentEowned or controlled ban@
or financial institution to the ff6 1*
?resident
2* Jice ?resident
3* 'embers of the Cabinet
4* &he Congress
)* &he %upreme Court
256
,* &he Constitutional Commissions
"(* &he Ombudsman
"3* &o any firm to which they have
controlling interest during their tenure
(d) 8imitation on 8aborers %hall not be
assigned to perform clerical activities
(e) Detail or assi*nment 7o detail or
reassignment shall be made within three
months before any election without the
approval of the Comelec
(f) :epotism -ll appointments made in favor
of a relative "within the third civil degree of
consanguinity or affinity* of the appointing
authority or the chief of the bureau or
office, of the persons eercising immediate
supervision over him are prohibited! &his
covers all appointments and designations,
including subse>uent personnel actions
"e! promotion, reinstatement etc*!
;II. RI6A*S AND PRI;ILE6ES OF PUBLIC
OFFICERS
A. Ri-+t to Office
0t is the right to eercise the powers of the
office to the eclusion of others!
B. Ri-+t to S"l"r' or Co$pen"tion
1. BASIS
&he legal title to the office and the fact
that the law attaches compensation to his
office
2. 6ENERAL RULES
- public officer is not entitled to
compensation for services rendered under
an unconstitutional statute or provision
thereof!
- 5ception6 0f some other statute
provides otherwise!
0f no compensation is fied by law, the
public officer is assumed to have accepted
the office to serve gratuitously!
-fter services have been rendered by a
public officer, the compensation thus
earned cannot be ta@en away by a
subse>uent law! Fowever, he cannot
recover salary for a period during which he
performed no services!
One without legal title to office either by
lawful appointment or election and
>ualification is not entitled to recover
salary or compensation attached to the
office!
One who intrudes into or usurps a public
office has no right to the salary or
emoluments attached to the office!
!. So$e Contitution"l Pro&iion
Affectin- S"l"rie
7o increase in the salaries of members
of Congress shall ta@e effect until after
the epiration of the full term of the
'embers of the %enate and the Fouse
of Representatives who approved the
increase "-rt! J0, %ec 10*
%alaries of the ?resident and Jice
?resident shall be fied by law and
shall not be decreased during their
tenure! 7o increase shall ta@e effect
until after the epiration of the term of
the incumbent during which such
increase was approved "-rt! J00, %ec!
,*
&he salary of members of the .udiciary
shall not be decreased during their
continuance in office "-rt! J000, %ec!
10* however, imposition of income
taes on salaries of Audges does not
constitute unconstitutional diminution
of salaries "7itafan v &an*
-dditional, double or indirect
compensation are prohibited "-rt! 0/EB,
%ec! 3*
%tandardi$ation of compensation "-rt!
0/EB, %ec! )* R- ,()3, the %alary
%tandardi$ation 4aw was passed in
compliance with the constitutional
provision!
#. Co$pen"tion not "n ele$ent of public
office
Compensation is not indispensable to
public office! 0t is not part of the office but
merely incident thereto! 0t is sometimes
epressly provided that certain officers
shall receive no compensation, and a law
creating an office without any provision for
compensation may carry with it the
implication that the services are to be
rendered gratuitously!
%. S"l"r': W"-e: "n, Per Die$ Define,
"n, Ditin-ui+e,
%alary6 timeEbound
Bages6 serviceEbound
?er ;iem6 allowance for days actually
spent for special duties
(. S"l"r' of Public Officer Not SubGect to
Att"c+$ent
257
&he salary of a public officer or employee
may not, by garnishment, attachment, or
order of eecution, be sei$ed before being
paid by him, and appropriated for the
payment of his debts!
'oney in the hands of public officers,
although it may be due government
employees, is not liable to the creditors of
these employees in the process of
garnishment because the sovereign %tate
cannot be sued in its own courts ecept by
epress authori$ation by statute! ";irector
of Commerce and 0ndustry v! Concepcion*
). Future or Une"rne, S"l"rie C"nnot be
Ai-ne,
&he salary or emoluments in public office
are not considered the proper subAect of
barter and sale! "22 R!C!4! )41*
.. A-ree$ent Affectin- Co$pen"tion
Ael, ;oi,
-n agreement by a public officer respecting
his compensation may rightfully be
considered invalid as against public policy
where it tends to pervert such
compensation to a purpose other than that
for which it was intended, and to interfere
with the officerIs free and unbiased
Audgment in relation to the duties of his
office! "&his is usually with reference to
unperformed services and the salary or
fees attached thereto!*
/. Ri-+t to Reco&er S"l"r'D De 5ure
Officer "n, De F"cto Officer
Bhere a duly proclaimed elective official
who assumes office is subse>uently ousted
in an election protest, the prevailing party
can no longer recover the salary paid to
the ousted officer! &he ousted officer, who
acted as de facto officer during his
incumbency, is entitled to the
compensation, emoluments and allowances
which are provided for the position
"Rodrigue$ v! &an*!
- 5ception6 0f there was fraud on the
part of the de facto officer which would
vitiate his election!
- de Aure officer recover fromEE
the government6 when the government
continues to pay the de facto officer
even after the notice of adAudication of
the protest in favor of the de Aure
officer!
a de facto officer6 when notice of
adAudication of the title to the de Aure
officer has been given, and the de
facto officer still continues to eercise
duties and receive salaries and
emoluments!
an intruder G usurper6 at all instances!
(onroy v. A and del <osario
Bhere a mayor filed a certificate of
candidacy for congressman then withdrew
such certificate and reassumed the position
of mayor, thus preventing the viceEmayor
from discharging the duties of the position
of mayor, the mayor should reimburse to
the viceEmayor, as the right rightful
occupant of the position of mayor, the
salaried which he had received!
<odri*ue6 v. Tan
Bhere a duly proclaimed elective
official who assumes office is subse>uently
ousted in an election protest, the prevailing
party can no longer recover the salary paid
to the ousted officer! &he ousted officer,
who acted as de facto officer during his
incumbency, is entitled to the
compensation, emoluments and allowances
which are provided for the position!
!xception# 0f there was fraud on
the part of the de facto officer which
would vitiate his election!
13. A,,ition"l or Double Co$pen"tion
Pro+ibite,
A,,ition"l Double
&here is only 1
position, but the
public officer is
getting additional
compensation!
!
&here are 2 positions,
and with additional
functions and
emoluments for both
positions
?ensions G gratuities are not considered as
additional, double, or indirect
compensation! "%ec! 3, -rt! 0/EB, 123(
Constitution*
By its very nature, a bonus parta@es of an
additional remuneration or compensation!
"?eralta v! -uditor Ceneral*
-n allowance for epenses incident to the
discharge of the duties of office is not an
increase of salary, a prere>uisite, nor an
emolument of office! "?eralta v! -uditorE
Ceneral*
258
11. Reco&er' of S"l"r' Durin- Perio, of
Supenion
0f preventively suspended, he cannot
recover salary!
- But 0f he is subse>uently eonerated,
he can!
0f he was given penalty of removal from
office, but was completely eonerated upon
appeal, he can recover bac@ wages and
other monetary benefits!
0f the reinstatement was not the result of
eoneration but an act of liberality by the
Court of -ppeals, not entitled to
compensation as he has not rendered any
service
0f he was given penalty of removal from
office, but his penalty was commuted from
removal to mere suspension, or demotion,
he cannot recover because he was still
found guilty although the penalty was
reduced!
0f the suspension G removal from office is
unAustified, he can recover!
C. Doctrine of Offici"l I$$unit'
1. *+e Doctrine
- public officer enAoys >ualified, not
absolute immunity! &he protection
generally applies only to activities within
the scope of office that are in good faith
and are not rec@less, malicious or corrupt!
2. Purpoe of t+e Doctrine
&o indirectly protect the sovereign by
protecting the public official in the
performance of his governmental function
-s a result of the immunity etended, the
fearless and effective administration of the
policies of the government is promoted!
!. Prei,enti"l I$$unit' fro$ Suit
5nAoyed only during the tenure of the
?resident!
-fter his tenure, the Chief 5ecutive
cannot invo@e immunity from suit for
civil damages arising out of acts done
by him while he was ?resident "5strada
v ;esierto, 'arch 2, 2001*
D. Ri-+t to Preference in Pro$otion
But the right does not prevail over the
discretion of the appointing authority
E. Ri-+t to ;"c"tion "n, SicE Le"&e
Fowever, in 'aleni$a v CO-, it was held
that elective officials are not entitled to
accrued vacation and sic@ leave credits
because they have no official hours of
wor@
NO*E6 Fowever, this ruling may be
considered abandoned by the 4ocal
Cov=t Code which states in %ec! 31 that
elective local officials shall be entitled
to the same leave privileges as those
enAoyed by appointive local officials
F. Ri-+t to 0"ternit' Le"&e
6. Ri-+t to Retire$ent P"'
Retirement pay is liberally construed in
favor of the retiree "?roferata v ;rilon*
&he money value of the terminal leave of a
retiring government official shall
computed at the retiree=s F0CF5%&
monthly salary "Belicena v %ec! of
#inance*
A. Ot+er
Right to reimbursement for epenses
incurred in the due performance of his
duty! But a public officer who uses a
government vehicle is not entitled to,
nor can he charge, a transportation
allowance ";omingo v CO-, Oct! (,
1223*
Right to be indemnified against any
liability which they may incur in the
bona fide discharge of their duties
Right to longevity pay
%eparation ?ay to be given to Civil
%ervice employees who are separated
from the service not for cause but by
reason of reorgani$ation "%ec! 1,, -rt
/J000*
Right to additional allowances and
benefits under the 4ocal Covernment
Code! 4CDs may provide additional
allowances and benefits to national
government officials stationed to their
municipality or city!
;III. Li"bilit' of Public Officer
6ener"l Rule6 - public officer is not liable for
inAuries sustained by another as a conse>uence
of official acts done within the scope of his
official authority!
E1ception6 -s otherwise provided by law6
259
1! - public officer shall not be civilly
liable for acts done in the
performance of his official duties,
unless there is a clear showing of
bad faith, malice or negligence
"%ec! 33"1* -dmin Code*
2! 7o subordinate officer or employee
shall be civilly liable for acts done
by him in good faith in the
performance of his duties! Fowever
he shall be liable for willful or
negligent acts done by him which
are contrary to law, morals, public
policy and good customs even if
he acted under orders or
instructions of his superiors "%ec!
32, -dmin Code*
3! Fowever, under the 4ocal Cov=t
Code, %ec! 24, 4ocal governments
and their officials are not eempt
from liability for death or inAury to
persons or damage to property
%tatutory 4iability
1! -rt! 2(, Civil Code6 -ny person
suffering moral or material loss
because a public officer refuses or
neglects, without Aust cause, to
perform his official duty, may file
an action for damages and other
relief against the public officer! &his
is without preAudice to
administrative disciplinary action
against the officer
2! -rt! 32, Civil Code6 4iability of
public officer for violation of
constitutional rights of individuals
3! -rt! 34, Civil Code6 4iability of peace
officers who fail to respond or give
assistance to persons in danger of
inAury to life or property :7ote6 &he
municipal corporation is subsidiarily
liable<
4! %ec! 33"2* Chapter 2, Boo@ 0
-dmin Code6 -ny public officer
who, without Aust cause, neglects
to perform a duty within a period
fied by law or regulation, or within
a reasonable period if none is
fied, shall be liable for damages to
the private party concerned
without preAudice to such other
*+reefol, Li"bilit' Rule.
&he wrongful acts or omissions of a public
officer may give rise to civil, criminal and
administrative liability! -n action can proceed
independently of the others! ;ismissal or relief
from the criminal actionGliability does not carry
with it relief from administrative liability
W+en " Public Officer if SubGect to Ci&il
Li"bilit'
&he following must concur6
- inAury to the individual must be
established
- the public officer must have violated a
right or duty owed to the individual
claiming damages
- the officer must have maliciously and
in bad faith acted outside the scope of
his G her authority "ultra vires*
5ven mista@es committed by such public
officer are not actionable as long as it is
not shown that they were motivated by
malice or gross negligence amounting to
bad faith!
,%il. <acin* lub v. Bonifacio
0n this case, the members of the
Commission on Races declared a horse
race cancelled due to a faulty start, but
only after holders of the winning tic@ets
were able to claim their pri$es! Because of
such declaration, the ?hilippine Racing Club
also made a refund to the holders of the
losing tic@ets! - suit was filed against the
Commission, charging them with civil
liability!
&he Court found the
Commissioners acted outside the scope of
their authority as they only had the power
to supervise, and not control, the conduct
of races! Fowever, they were absolved
from liability because they acted in their
official capacity in the honest belief that
they had such power!
&he Court opined that in order that
acts may be done within the scope of
official authority, it is not necessary that
they be prescribed by statute, or that they
be specifically directed or re>uested by a
superior officer! 0t is sufficient if they are
done by an officer in relation to matters
committed by law to his control or
supervision, or that they have more or less
connection to the department under whose
authority the officer is acting!
Hin, of Li"bilit' of 0initeri"l Officer
260
7onfeasance 6 neglect or refusal, without
sufficient ecuse, to perform an act which
it was the officer=s legal duty to the
individual to perform
'isfeasance 6 failure to use, in the
performance of a duty owing to an
individual, that degree of care, s@ill and
diligence
'alfeasance 6 the doing, either through
ignorance, inattention or malice, of that
which the officer has no legal right to do at
all
0t is the general rule that good faith
and absence of malice constitute no
defense in an action to hold a
ministerial officer liable for damages
caused by nonfeasances or
misfeasances! Fowever, good faith or
honest mista@e may be shown in
mitigation of damages!
Li"bilit' of Superior Officer for Act of
Subor,in"te
C575R-4 RD456 ?ublic officers are not
civilly liable to 3rd persons for the wrongful
acts, omissions of duty, negligence or
misfeasance of their subordinates, unless
he has actually authori$ed, by written
order, the specific act or misconduct
complained of! "%ec 33"3*, Chap 2, Boo@ 0,
-dmin Code* &hus, those in the chain of
command should not be subAect to suit on
any theory of vicarious responsibility!
- 5ceptions6
o Bhere, being charged with the
duty of employing or retaining his
subordinates, he negligently or
willfully employs or retains unfit or
improper persons+
o Bhere, being charged with the
duty to see that they are appointed
or >ualified in a proper name, he
negligently or willfully fails to
re>uire them the due conformity to
the prescribed regulations+
o Bhere he so carelessly or
negligently oversees, conducts or
carries on the business of his
officer as to furnish the opportunity
for the default+
o Bhere he has directed, authori$ed
or cooperated in the wrong+
o Bhere liability is epressly
provided in the statute!
Li"bilit' of Subor,in"te
- subordinate who acts in good faith under
lawful orders of a superior officer is not
personally liable in an action for damages!
Fe shall be civilly liable for willful or
negligent acts done by him which are
contrary to law, morals, public policy or
good customs, even if he acted under
orders of his superior!
Li"bilit' on Contr"ct
&he public officer shall be personally liable
on contracts he enters into if he acted
without or eceeded his authority!
Li"bilit' for *ortuou Act
?ublic officers are not immune from suit for
their own tortuous conduct, even where
such conduct is committed in the course of
their employment!
&he public officer shall be personally liable
if he goes beyond the scope of his
authority, or eceeds the powers conferred
upon him by law! &his is because
unauthori$ed acts of government officials
are not acts of %tate, and so the public
officer may be held personally liable!
"%hauf v C-+ Bylie v Rarang*
.. Cri$in"l Li"bilit'
&he mere fact that an officer is acting in an
official capacity will not relieve him from
criminal liability!
&he mere epiration of the term of office of
the public official will not prevent the
prosecution and punishment for a
misdemeanor committed in office+ nor
does the reEelection of a public official
etinguish the criminal liability incurred by
him during his previous term of office!
I?. AD0INIS*RA*I;E DISCIPLINE
A. O&er Prei,enti"l Appointee
1. Diciplin"r' Aut+orit' Lie 2it+ t+e
Appointin- Aut+orit'
%ec! 4("1*, Boo@ J of 5O 222 which provides
that 8a complaint may be filed directly with the
C%C by a private citi$en against a government
official or employee in which case it may hear
and decide the case9 must be read together
with %ec! 43 which is entitled 8?rocedure in
-dministrative Cases -gainst 7onE?residential
-ppointees!9 &he very subAect of %ec! 43
implicitly limits the scope of the C%C=s
Aurisdiction in administrative cases to nonE
presidential appointees and ma@es patent the
conclusion that the disciplinary authority over
261
presidential appointees lies elsewhere Q the
?resident as appointing power himself "Olonan
v! C%C*!
2. Po2er to Appoint I$plie t+e Po2er to
Re$o&eI E1ception
.ustices of the %upreme Court "by
impeachment*
'embers of Constitutional Commissions
"by impeachment*
Ombudsman "by impeachment*
.udges of inferior courts "disciplinary or
removal power vested in the %upreme
Court*
Bonifacio Sans (aceda v. @as9ue6
- Audge who falsifies his Certificate
of %ervice is administratively liable to the
%C for serious misconduct and inefficiency
under %ec! 1, Rule 140 of the Rules of
Court and criminally liable to the %tate
under the Revised ?enal Code for his
felonious act! Bhere a criminal complaint
against a Audge or other employee arises
from their administrative duties, the
Ombudsman must defer action on said
complaint and refer the same to the %C for
determination whether said Audge or court
employee had acted within the scope of
their administrative duties! &hus, the
Ombudsman should first refer the matter
to the %C for determination of whether the
certificates reflected the true status of his
pending case load, as the %C had the
necessary records to ma@e such a
determination! -rt! J000, %ec! , of the
Constitution eclusively vests in the %C
administrative supervision over all courts
and court personnel!
Dolalas v. OmbudsmanA(indanao
Citing the 'aceda case, the %C
power of administrative supervision over
Audges and court personnel is eclusive!
0nvestigation by the Ombudsman violates
the specific constitutional mandate of the
%C and undermines the independence of
the Audiciary!
B. O&er NonBPrei,enti"l Appointee
1. 6roun,
%ec! 4,"a*, Boo@ J of 5O 2226 87o officer
or employee in the Civil %ervice shall be
suspended or dismissed ecept for cause
as provided by law and after due process!9
&he grounds constituting Aust cause are
enumerated in %ec! 4,"b*!
2. 5uri,iction
Original complaints may be filed6 "a*
directly with the C%C or "b* with the
%ecretaries and heads of agencies and
instrumentalities, provinces, cities and
municipalities for officers and employees
under their Aurisdiction!
;ecisions of %ecretaries and heads of
agencies and instrumentalities, provinces,
cities and municipalities shall be final in
case the penalty imposed is suspension for
not more than 30 days or fine in an
amount not eceeding 30 days= salary!
0n case the decision rendered by a bureau
or office head is appealable to the
Commission, the same may be initially
appealed to the department and finally to
the Commission and pending appeal, the
same shall be eecutory ecept when the
penalty is removal, in which case the same
shall be eecutory only after confirmation
by the %ecretary concerned!
- ;ecisions imposing the penalty of
suspension for more than 30 days or
fine in an amount eceeding 30 days=
salary, demotion in ran@ or salary or
transfer, removal or dismissal from
office shall be appealable to the C%C!
!. Proce,ure in A,$initr"ti&e C"e
A-"int NonBPrei,enti"l Appointee
-dministrative proceedings may be
commenced against a subordinate officer
or employee by the %ecretary or head of
office of e>uivalent ran@, or head of local
government, or chiefs of agencies, or
regional directors, or upon sworn written
complaint of any other person!
#or complaints filed by any other person
- Complainant shall submit sworn
statements covering his testimony and
those of his witnesses together with his
documentary evidence!
- 0f based on such papers a prima facie
case is found not to eist, the
disciplining authority shall dismiss the
case! Otherwise, he shall notify the
respondent in writing of the charges
against the latter!
- Respondent shall be allowed not less
than seventyEtwo hours after receipt of
the complaint to answer the charges in
writing under oath, together with
supporting sworn statements and
documents! Fe shall also indicate
262
whether or not he elects a formal
investigation if his answer is not
considered satisfactory!
- 0f the answer is found satisfactory, the
disciplining authority shall dismiss the
case!
- -lthough a respondent does not
re>uest a formal investigation, one
shall nevertheless be conducted when
from the allegations of the complaint
and the answer of the respondent,
including the supporting documents,
the merits of the case cannot be
decided Audiciously without conducting
such an investigation!
- &he decision shall be rendered by the
disciplining authority within thirty days
from the termination of the
investigation or submission of the
report of the investigator, which report
shall be submitted within fifteen days
from the conclusion of the
investigation!
- 5ither party may avail himself of the
services of counsel and may re>uire
the attendance of witnesses and the
production of documentary evidence in
his favor through the compulsory
process of subpoena or subpoena
duces tecum!
#. Appe"l "n, Petition for
Reconi,er"tion
Bithin 1) days from receipt of the decision
unless a petition for reconsideration is
seasonably filed, which petition shall be
decided within 1) days!
- petition for reconsideration shall be
based only on any of the following
grounds6
- new evidence has been discovered
which materially affects the decision
rendered+
- the decision is not supported by the
evidence on record+ or
- error of law or irregularities have been
committed which are preAudicial to the
interests of the respondent!
Only one petition for reconsideration shall
be allowed!
(ende6 v. ivil Service ommission
&he remedy of appeal in civil
service cases may be availed of only in a
case where respondent is found guilty of
the charges against him! But when the
respondent is eonerated of said charges,
as in this case, there is no occasion for
appeal! ?; 30( shows that it does not
contemplate a review of decisions
eonerating officers or employees from
administrative charges! 8?arty adversely
affected by the decision9 in %ection 32 of
the Civil %ervice 4aw refers to the
government employee against whom case
was filed!
%. Su$$"r' Procee,in-
7o formal investigation is necessary and
the respondent may be immediately
removed or dismissed if any of the
following circumstances is present6
- Bhen the charge is serious and the
evidence if guilt is strong+
- Bhen the respondent is a recidivist or
has been repeatedly charged and there
is reasonable ground to believe that he
is guilty of the present charge+ and
- Bhen the respondent is notoriously
undesirable!
(. Pre&enti&e Supenion
&he proper disciplining authority may
preventively suspend any subordinate
officer or employee under his authority
pending an investigation, if the charge
against such officer or employee involves6
- dishonesty+ or
- oppression or grave misconduct+ or
- neglect in the performance of duty+ or
- if there are reasons to believe that the
respondent is guilty of charges which
would warrant his removal from the
service!
'aimum period for preventive suspension
20 days for national officials
,0 days for local appointive and
elective officials, ecept if the case is
filed in the Ombudsman, the latter may
impose a preventive suspension for a
period of , months!
Bhen the administrative case against the
officer or employee under preventive
suspension is not finally decided by the
disciplining authority within the period of
ninety "20* days after the date of
suspension of the respondent who is not a
presidential appointee, the respondent
shall be automatically reinstated in the
service!
). Pen"lt'
263
0n meting out punishment, the same
penalties shall be imposed for similar
offenses and only one penalty shall be
imposed in each case!
&he disciplining authority may impose the
penalty of removal from the service,
demotion in ran@, suspension for not more
than one year without pay, fine in an
amount not eceeding si months= salary,
or reprimand! "%ec! 4,"d*, Boo@ J, 5O 222*
0f the respondent is found guilty of two or
more charges or counts, the penalty
imposed should be that corresponding to
the most serious charge or count and the
test may be considered as aggravating
circumstances! "%ec! 1( of the
0mplementing Civil %ervice Rules and
Regulations*
- reprimand whether given by the Civil
%ervice Commission or the head of
department or agency shall be considered
a penalty! Fowever, a warning or an
admonition shall not be considered a
penalty! "%ec! 1) of the 0mplementing Civil
%ervice Rules and Regulations*
- Reprimand is a penalty "&obias v!
Jeloso*!
- warning is an act or fact of putting one
on his guard+ an admonition is a gentle or
friendly reproof or a mild rebu@e+ while a
reprimand is a formal and public censure
or a severe reproof!
Re$o&"l of A,$initr"ti&e Pen"ltie or
Di"bilitie
- 0n meritorious cases and upon
recommendation of the C%C, the
?resident may commute or remove
administrative penalties or disabilities
imposed upon officers or employees in
disciplinary cases, subAect to such
terms and conditions as he may
impose in the interest of the service!
C. O&er Electi&e Offici"l
1. I$pe"c+$ent
?rocedure
- - verified complaint may be filed by
any member of the Fouse of
Representatives or by any citi$en upon
a resolution of endorsement by any
member thereof!
- Complaint shall be included in the
Order of Business within 10 sessions
days and referred to the proper
Committee within 3 session days
thereafter!
- &he Committee, after hearing, and by
a maAority vote of all its members,
shall submit its report to the Fouse
within ,0 session days from such
referral, together with the
corresponding resolutions! &he
resolution shall be calendared for
consideration of the Fouse within 10
session days from receipt thereof!
- - vote of at least 1G3 of all the
members of the Fouse shall be
necessary either to affirm a favorable
resolution with the -rticles of
0mpeachment of the Committee, or
override its contrary resolution!
- 0n case the verified complaint or
resolution of impeachment is filed by at
least 1G3 of all the members of the
Fouse, the same shall constitute the
-rticles of 0mpeachment, and trial by
the %enate shall forthwith proceed!
- &he %enate shall have the sole power
to try and decide all cases of
impeachment! Bhen sitting for that
purpose, the %enators shall be on oath
or affirmation! Bhen the ?resident of
the ?hilippines is on trial, the Chief
.ustice of the %upreme Court shall
preside, but shall not vote! 7o person
shall be convicted without the
concurrence of 2G3 of all the members
of the %enate!
.udgment in cases of impeachment shall
not etend further than removal from office
and dis>ualification to hold office under the
Republic of the ?hilippines, but the party
convicted shall nevertheless be liable and
subAect to prosecution, trial and
punishment according to law!
7o impeachment proceedings shall be
initiated against the same official more
than once within a period of one year!
5lective Official
against whom
-dministrative
Complaint is #iled
Bhere to #ile
Complaint
?rovincial or city
official
Office of the
?resident
'unicipal official %angguniang
?anlalawigan
Barangay official %angguniang
?anlungsod or
%angguniang Bayan
264
2. Loc"l Electi&e Offici"l 9Sec. (3B(.:
Loc"l 6o&ern$ent Co,e<
Crounds for ;isciplinary -ctions
;isloyalty to the Republic of the
?hilippines
Culpable violation of the Constitution
;ishonesty, oppression, misconduct in
office, gross negligence, or dereliction
of duty
Commission of any offense involving
moral turpitude or an offense
punishable by at least prision mayor
-buse of authority
Dnauthori$ed absence for 1)
consecutive days, ecept in the case of
members of the sangguniang
panlalawigan, sangguniang
panlungsod, sangguniang bayan, and
sangguniang barangay
-pplication for, or ac>uisition of,
foreign citi$enship or residence or the
status of an immigrant of another
country
%uch other grounds as may be
provided in this Code and other laws!
?rocedure
"1* Jerified Complaint
"2* -nswer6 Bithin ( days after the
administrative complaint is filed, the
Office of the ?resident or the
sanggunian concerned, as the case
may be, shall re>uire the respondent
to submit his verified answer within
1) days from receipt thereof
"3* 0nvestigation6 Commenced within 10
days after receipt of such answer of
the respondent! 0t shall be
terminated within 20 days from the
start thereof! 7o investigation shall
be held within 20 days immediately
prior to any local election, and no
preventive suspension shall be
imposed within the said period!
"4* ;ecision6 Bithin 30 days after the
end of the investigation, the Office of
the ?resident or the sanggunian
concerned shall render a decision in
writing stating clearly and distinctly
the facts and the reasons for such
decision!
?reventive %uspension
'ay be imposed at any time after the
issues are Aoined, when the evidence of
guilt is strong, and given the gravity of
the offense, there is great probability
that the continuance in office of the
respondent could influence the
witnesses or pose a threat to the
safety and integrity of the records and
other evidence!
Dpon epiration of the preventive
suspension, the suspended elective
official shall be deemed reinstated in
office without preAudice to the
continuation of the proceedings against
him, which shall be terminated within
120 days from the time he was
formally notified of the case against
him!
7o preventive suspension shall be
imposed within 20 days immediately
prior to any local election! 0f preventive
suspension has been imposed prior to
the 20Eday period immediately
preceding local election, it shall be
deemed automatically lifted upon the
start of the aforesaid period!
-dministrative -ppeal6 Bithin 30 days from
receipt of the decision, appeal to6
sanggunian panlalawigan, in case of
decisions of the sangguniang panlungsod
of component cities+ and sangguniang
bayan
Office of the ?resident, in the case of
decisions of the sangguniang panlalawigan,
the sangguniang panlungsod of highly
urbani$ed cities, the sangguniang
panglungsod of independent component
cities!
?. *ER0INA*ION OF OFFICIAL
RELA*IONS
A. 0o,e of *er$in"tion

1! 5piration of &erm or &enure of Office
5nd of a fied term
5nd of ?leasure where one holds office
at pleasure of appointing authority
4oss of confidence in primarily
confidential employment
2! Reaching the age limit+ Retirement
3! Bona fide abolition of office
4! -bandonment of office
)! -cceptance of an incompatible office
,! Resignation
(! Removal for cause
3! &emporary appointments= termination
265
2! Recall
10! 0mpeachment
11! ?rescription of right to office
12! ;eath
13! Conviction of crime where dis>ualification
is an accessory penalty
14! #iling of certificate of candidacy
1)! ?erformance of act or accomplishment of
purpose for which the office was created
1,! #ailure to assume elective office within si
months from proclamation
B. E1pir"tion of *er$ or *enure of Office
1. En, of Fi1e, *er$
Dpon the epiration of the officer=s term,
unless he is authori$ed by law to hold over,
his rights, duties and authority as a public
officer must be ipso facto terminated!
2. En, of ple"ure 2+ere one +ol, office
"t t+e ple"ure of t+e "ppointin- "ut+orit'

?resident can validly terminate tenure of
Jice 'ayor of Roas City as the office was
created at the pleasure of the ?resident!
Bhat is involved here is not the >uestion of
removal, or whether legal cause should
precede or not that of removal! Bhat is
involved here is the creation of an office
and the tenure of such office, which has
been made epressly dependent upon the
pleasure of the ?resident "-lba v!
5vangelista*!
'ernande6 v 8edesma
&he Charter of Basilan City
provides that the ?resident shall appoint
and may remove at his discretion any of
the city=s officers, including its Chief of
?olice, with the eception of the municipal
Audge, who may be removed only
according to law! &he legislative intent is to
ma@e continuance in office dependent upon
the pleasure of the ?resident! Congress has
the power to vest such power of
appointment! #urther, 8- public office is the
right for a given period, either fied by law
or enduring at the pleasure of the creating
power!9 -lba v! 5vangelista states that the
replacement is not removal, but an
epiration of tenure, which is an ordinary
mode of terminating official relations! Bhat
is involved is not removal, or whether legal
cause should precede such removal, but
the creation of an office and the tenure of
such office, which has been made
epressly dependent upon the pleasure of
the ?resident!
!. Lo of Confi,ence in Pri$"ril'
Confi,enti"l E$plo'$ent
Official and employees holding primarily
confidential positions continue only for so
long as confidence in them endures! &he
termination of their official relation can be
Austified on the ground of loss of
confidence because in that case, their
cessation from office involves no removal
but merely the epiration of the term of
office "Fernande$ v! Jillegas*!
C. Re"c+in- t+e A-e Li$itI Retire$ent
Conditions for entitlement to retirement
benefits "R!-! 7o! 3221*
he has rendered at least fifteen "1)*
years of service+
he is at least sity ",0* years of age at
the time of retirement+ and
he is not receiving a monthly pension
benefit from permanent total disability!
Compulsory Retirement
Dnless the service is etended by
appropriate authorities, retirement
shall be compulsory for an
employee at least ,) years of age
with at least 1) years of service+
?rovided that if he has less than 1)
years of service, he may be
allowed to continue in the service
in accordance with eisting civil
service rules and regulations!
7O&56 different in 7achura Reviewer6
Compulsory Retirement -ge is (0 yrs for
the members of the .udiciary and ,) yrs
for other government officers and
employees "Dnder 7ew C%0% Charter*
Beronilla v )S"S
&he compulsory retirement of
government officials and employees upon
reaching the age of ,) years is founded on
public policy which aims by it to maintain
efficiency in the government service and,
at the same time, give to the retiring
public servants the opportunity to enAoy
during the remainder of their lives the
recompenses for their long service and
devotion to the government, in the form of
a comparatively easier life, freed from the
rigors, discipline and the eacting demands
that the nature of their wor@ and their
266
relations with their superiors as well as the
public would impose on them!
D. Bon" Fi,e Abolition of Office
-s a general rule, absent some
Constitutional prohibition, Congress may
abolish any office it creates without
infringing upon the rights of the officer or
employee affected!
&o consider an office abolished, there must
have been an intention to do away with it
wholly and permanently!
&ermination by virtue of the abolition of the
office is to be distinguished from removal!
&here can be no tenure to a nonEeistent
office! -fter the abolition, there is in law no
occupant! 0n case of removal, there is an
office with an occupant who would thereby
lose his position! 0t is in that sense that
from the standpoint of strict law, the
>uestion of any impairment of security of
tenure when there is an abolition of office
does not arise! &he right itself disappeared
with the abolished office as an accessory
following the principal!
Busacay v. Buenaventura
Busacay was laid off as toll
collector when the bridge was destroyed!
Fowever, the bridge was later
reconstructed and opened to the public
with a new collector being appointed!
Busacay was ordered reinstated by the %C!
&o consider an office abolished, there must
have been an intention to do away with it
wholly and permanently! 0n the case at bar,
there was never any thought of not
rebuilding the bridge! &he collapse of the
bridge did not wor@ to destroy but only to
suspend the position of toll collector
thereon, and upon its reconstruction and
reEopening, the collector=s right to the
position was similarly and automatically
restored!
(analan* v. 4uitoriano
&he 7ational 5mployment %ervice
was established by R!-! 7o! (,1 in lieu of
the ?lacement Bureau! Kuitoriano was
appointed as 75% Commissioner in spite of
the recommendation of the 4abor secretary
to appoint 'analang who was the
incumbent ;irector of the ?lacement
Bureau! %C held that appoint of Kuitoriano
was valid! - removal implies that the office
still eists! R!-! 7o! (,1, creating 75%,
epressly abolished the ?lacement Bureau
and, by implication, the office of the
;irector of the ?lacement Bureau! Fad
Congress intended the 75% to be a mere
enlargement of the ?lacement Bureau, it
would have directed the retention, not the
transfer, of >ualified personnel to the 75%!
'analang has never been 75%
Commissioner and thus could not have
been removed therefrom!
-bolition 'ust Be in Cood #aith
- &he abolition of an office does not
amount to an illegal removal or
separation of its incumbent is the
principle that, in order to be valid, the
abolition must be made in good faith,
not for personal or political reasons,
and not implemented in violation of
law!
-
Briones v. OsmeBa
Briones and Rosagaran were
employees in the Office of the City 'ayor
since 123( and 1240, respectively, 0n
12),, the City created 3) new positions
and abolished 32, of which the positions of
Briones and Rosagaran were included!
Conse>uently, the two were terminated! %C
held that the termination was not valid!
Bhile abolition does not imply removal of
the incumbent, this rule is true only where
the abolition is made in good faith! 0n other
words, the right to abolish cannot be used
to discharge employees in violation of the
Civil %ervice law nor can it be eercised for
personal or political reasons!
'acundo v. ,abalan
&here is no law which epressly
authori$es a municipal council to
abolish the positions it has created!
Fowever, the rule is wellEsettled that
the power to create an office includes
the power to abolish it, unless there
are constitutional or statutory rules
providing otherwise! But the office
must be abolished in good faith!
ru6 v. ,rimicias
-s well settled as the rule that
the abolition of an office does not
amount to an illegal removal of its
incumbent is the principle that, in
order to be valid, the abolition must be
made in good faith! Bhere the
267
abolition is made in bad faith, for
political or personal reasons, or in
order to circumvent the constitutional
security of tenure of civil service
employees, it is null and void! 0n the
case at bar, while 22 positions were
abolished, 23 new positions with higher
salaries were simultaneously created!
7o charge of inefficiency is lodged
against petitioners! 0n truth and in fact,
what respondents sought to achieve
was to supplant civil service eligibles
with men of their choice, whose tenure
would be totally dependent upon their
pleasure and discretion!
E. Reor-"ni4"tion
&his occurs where there is an alteration of
the eisting structure of government
offices or units therein, including the lines
of control, authority and responsibility
between them to promote greater
efficiency, to remove redundancy of
functions, or to affect economy and ma@e
it more responsive to the needs of their
public clientele! 0t may result in the loss of
one=s position through removal or abolition
of office!
Reorgani$ation of the government may be
re>uired by law independently of specific
constitutional authori$ation!
But in order to be valid, it must also be
done in good faith!
- - reorgani$ation is carried out in good
faith if it is for the purpose of economy
or to ma@e the bureaucracy more
efficient! Cood faith, as a component of
reorgani$ation under a constitutional
regime, is Audged from the facts of
each case! 0n the case at bar, there
was lac@ of good faith ";ario v! 'ison*!
F. Ab"n,on$ent of Office
- public office may become vacant ipso
facto by abandonment and nonEuser! Bhen
an office is once abandoned, the former
incumbent cannot legally repossess it even
by forcible reEoccupancy!
-bandonment must be total and absolute,
and must be under such circumstances as
clearly to indicate an absolute
relin>uishment thereof!
&he officer should manifest a clear
intention to abandon the office and its
duties!
-bandonment by reason of acceptance of
another office, in order to be effective and
binding, must spring from and be
accompanied by deliberation and freedom
of choice, either to @eep the old office or
renounce it for another!
&emporary absence is not sufficient!
Summers v. O6aeta
%ummers, a cadastral Audge,
assumed office as C#0 Audge due to an ad
interim appointment! Fowever, the ad
interim appointment was disapproved and
%ummers now see@s to be reappointed as
cadastral Audge! %C held that %ummers=
voluntary acceptance of the position of C#0
Audge amounted to a waiver of his right to
hold the position of cadastral Audge during
the term fied and guaranteed by the
Constitution! Fe accepted and >ualified for
the position of AudgeEatElarge by ta@ing the
oath of office of AudgeEatElarge, and not
merely of an 8acting9 AudgeEatElarge! &he
situation is one wherein he cannot legally
hold two offices of similar category at the
same time!
6. Accept"nce of "n Inco$p"tible Office
Fe who, while occupying one office,
accepts another office incompatible with
the first, ipso facto absolutely vacates the
first office! &hat the second office is inferior
to the first does not affect the rule! -nd
even though the title to the second office
fails as where election is void, the rule is
still the same, nor can the officer then
regain the possession of his former office
to which another has been appointed or
elected!
0f the law or Constitution as an epression
of public policy forbids the acceptance by a
public officer of any other office other than
that which he holds, it is not a case of
incompatibility but of legal prohibition!
0ncompatibility of offices eists where6
&here is conflict in such duties and
functions so that the performance of
the duties of one interferes with the
performance of the duties of another,
as to render it improper for
considerations of public policy for one
person to retain both!
One is subordinate to the other and is
subAect in some degree to its
supervisory powers for in such
situation where both are held by the
same person, the design that one acts
268
as a chec@ on the other would be
frustrated!
&he Constitution or the law itself, for
reasons of public policy, declares the
incompatibility even though there is no
inconsistency in the nature and
functions of the offices!
5ceptions to the Rule on Folding of
0ncompatible Offices
Bhere the officer cannot vacate the
first office by his own act, upon the
principle that he will not be permitted
to thus do indirectly what he could not
do directly, as where the law re>uires
the approval of the provincial board
before a municipal official can resign!
#irst office is held under a different
government from that which conferred
the second!
Officer is epressly authori$ed by law
to accept another office!
%econd office is temporary!
A. Rei-n"tion
- resignation of a public officer need not
be in any particular form, unless some
form is prescribed by statute! Ordinarily, it
may either be in writing or by parol!
&here must be an intention to relin>uish a
part of the term, accompanied by the act
of relin>uishment!
&he right of a public officer to resign is well
recogni$ed, even where it is provided than
an officer may hold over until election and
>ualification of a successor!
Conflicting Jiews6
-ccording to some authorities, no
acceptance is necessary to render a
resignation effective, especially when
the resignation is unconditional and
purports to ta@e effect immediately!
'any other cases ta@e the view that to
be effective, the resignation must be
accepted by competent authority!
Bithout acceptance, the resignation is
nothing and the officer remains in
office! ",3 -m .ur 2d!, sec! 1,3*
?rof! Barlongay6 &wo elements are
necessary to constitute an effective
acceptance6
"1* intention to relin>uish office coupled
with actual relin>uishment+ and
"2* acceptance of resignation!
- 8courtesy resignation9 cannot properly
be interpreted as resignation in a legal
sense! 0t Aust manifests the submission of
a person to the will of the political
authority!
?rof! Barlongay6 Courtesy resignation
is not allowed in "1* career positions
and "2* nonEcareer positions with
security of tenure "i!e! local elective
officials*!
I. Re$o&"l for C"ue
1. Protection fro$ Re$o&"l 2it+out C"ue
7o officer or employee of the civil service
shall be removed or suspended ecept for
cause provided by law "%ec! 2"3*, -rt! 0/,
123( Constitution*!
2. 6roun, for Re$o&"l fro$ Office
#or ?residential appointees, ?rof! Barlongay
states that there is no specific law
providing for the grounds for their removal!
;etermination of grounds is Aust a matter
of practice and by analogy, the grounds
used for nonEpresidential appointees are
made applicable!
#or civil service officials and employees,
see %ec! 4,, Boo@ J, 5!O! 7o! 222 which
provides for at least 30 grounds for
disciplinary action!
#or local elective officials, %ec! ,0 of the
4ocal Covernment Code provides for the
grounds where an elective local official may
be disciplined, suspended or removed from
office!
'isconduct need not be 8in office9 in
case of appointive officers!
'isconduct must be 8in office9 in case
of elective officers!
'isconduct committed during a prior
term, not a ground for dismissal
Oc%ate v. Ty Delin*
&he %C held that the facts alleged
in the administrative charge, as
substantiated by the affidavits of the
complainants, do not Austify the
administrative proceedings instituted
against the petitioner and his suspension
by the governor! &he alleged libel imputed
to the mayor was not such misconduct
even if the term 8misconduct in office9 be
ta@en in its broadest sense! &he radio
broadcast in which the obAectionable
utterances were made had nothing to do
269
with his official functions and duties as a
mayor!
!. *r"nfer fro$ One Poition to Anot+er
0"' or 0"' Not Contitute ;iol"tion of
Securit' of *enure
- transfer is a movement from one position
to another which is of e>uivalent ran@,
level, or salary without brea@ in service
involving the issuance of an appointment!
0t shall not be considered disciplinary when
made in the interest of public service, in
which case, the employee concerned shall
be informed of the reasons therefore! 0f
the employee believes that there is no
Austification for the transfer, he may appeal
to the %C!
&he transfer may be from one department
or agency to another or from one
organi$ational unit to another in the same
department or agency+ ?rovided, however
that any movement from the nonEcareer
service to the career service shall not be
considered a transfer!
&he intended transfer to &arlac, if carried
out without the approval of 4acson, would
be e>uivalent to a removal from his office
in 7egros Oriental! &he reason is that a
fiscal is appointed for each province and
4acson could not legally hold and occupy
the two posts of fiscal of &arlac and 7egros
Oriental simultaneously! &herefore, to be a
fiscal of &arlac must mean his removal
from office in 7egros! %ince the transfer is
considered a removal, such should be for
cause in order for the other person to
legally occupy the office in 7egros! &here
was no cause for 4acson=s removal! Fe
therefore remains as fiscal of 7egros
"4acson v! Romero*!
5. *er$in"tion of *e$por"r' Appoint$ent
&he appointment being temporary in
character, the same can be terminated at
pleasure by the appointing power "Kuiti>uit
v! Jillacorta*!
One holding an office in a temporary
capacity may be ousted at anytime with or
without cause "#errer v! de 4eon*!
&he controlling factor in determining the
character of the appointment is the
appointment itself! 5ven if a position is
permanent, if the appointment is made
temporary, the appointment is
determinative! Bhat is determinative is not
the nature of the office "permanent or
temporary*, but the nature of the
appointment "FoAilla v! 'arino*!
One appointed to a position of another who
was illegally suspended or dismissed, holds
it in temporary capacity and must yield to
the latter! &he reason for this is that there
was no valid termination!
H. Rec"ll
&he Congress shall enact a local
government code which shall provide for a
more responsive and accountable local
government structure instituted through a
system of decentrali$ation with effective
mechanisms of recall, initiative and
referendum "%ec! 3, -rt! /, 123(
Constitution*
&he procedure for recall is provided in
%ections ,2E() of the 4ocal Covernment
Code!
L. Precription of Ri-+t to Office
-ny person claiming a right to a position in
the civil service is re>uired to file his
petition for reinstatement within one year,
otherwise he is deemed to have abandoned
his office! Reason is public policy and
convenience, stability in the public service
"Dnabia v! City 'ayor*!
?rof! Barlongay6 &he oneEyear period is the
prescriptive period to claim public office
"whether through >uo warranto or
otherwise*! &he oneEyear period
presupposes Audicial action, not
administrative action!
0. Filin- of Certific"te of C"n,i,"c'
%ec! ,, of the Omnibus 5lection Code6 -ny
person holding appointive public offices or
positions, including active -#? members, is
considered ipso facto resigned from office
by the mere filing of certificate of
candidacy!
&he following provisions have been
R5?5-45; by %ec! 14 of R!-! 200, "#air
5lection -ct of 2001*6
%ec! ,( of B!?! 331 which states that
any elective official, whether national
or local, running for any office O&F5R
than one which he is holding in a
permanent capacity, ecept for
?resident and Jice ?resident, shall be
considered ipso facto resigned from
office by the mere filing of a certificate
of candidacy!
&he first proviso of %ec! 11 of R!-!
343, which states that H-ny elective
official, running for any officer other
270
than one which he is holding in a
permanent capacity, ecept for
?resident and JiceE?resident, shall be
considered ipso facto resigned upon
the start of the campaign period!H
N. Perfor$"nce of Act or Acco$pli+$ent
of Purpoe for 2+ic+ t+e Office 2"
Cre"te,
?erformance of act or accomplishment of
purpose renders office functus officio!
O. F"ilure to Au$e Office
%ec! 11, B? 331 provides6 8&he office of
any official elected who fails or refuses to
ta@e his oath of office within si months
from his proclamation shall be considered
vacant , unless said failure is for cause or
causes beyond his control!9
271