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PUBLIC OFFICE AND OFFICERS Public Office Definition A public office is the right, authority and duty created

and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the appointing power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. (Mechem)

Purpose and Nature A public office is created 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 (63 A Am Jur 2d 667) Nature: Consti) (2) It is a responsibility and not a right. (Morfe v. Mutuc) Elements (1) Must be created either by (a) the Constitution, (b) the Legislature, or (c) a municipality or other body through authority conferred by the Legislature; (2) Must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) The powers conferred and the duties discharged must be defined, directly or impliedly by the Legislature or through legislative authority; (4) The duties must be performed independently and without control of a superior power other than the law; Exception: If the duties are those of an inferior or subordinate office, created or authorized by the Legislature and by it placed under the general control of a superior office or body; (5) Must have some permanency and continuity Note: This is not to be applied literally. The Board of Canvassers is a public office, yet its duties are only for a limited period of time. (1) A public office is a public trust. (Art. XI, Sec. 1, 1987

(cf. Barney v. Hawkins) Public Officer v. Public Employment Public employment is broader than public office. All public office is public employment, but not all public employment is a public office. Generally, a position is a public office when it is created by law, with duties cast upon the incumbent which involve the exercise of some portion of the sovereign power, and in the performance of which the public is concerned. Public employment is a position which lacks one or more of the foregoing elements. Public Office v. Public Contract Public Office Creation Incident sovereignty Public Contract of Originates from will of contracting parties Obligations imposed only upon the persons who entered into the contract

Object

Carrying out of sovereign as well as governmental functions affecting even persons not bound by the contract Tenure, continuity

Subject Matter Scope

duration, Limited duration

Duties that are Duties are generally continuing specific to and permanent contract Contract

very the

Where The law duties are defined

No vested right to public office GENERAL RULE: A public office, being a mere privilege given by the state, does not vest any rights in the holder of the office. This rule applies when the law is clear.

EXCEPTION: When the law is vague, the persons holding of the office is protected and he should not be deprived of his office.

Segovia v. Noel It is a fundamental principle that a public office cannot be regarded as the property of the incumbent and that a public office is not a public contract. Nonetheless, Act. No. 3107 should be given a prospective effect in the absence of legislative intent to the contrary. Although 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. If that right is to be taken away by statute, the terms should be clear. Agcaoili v. Suguitan The Supreme Court held that Agcaoili had not ceased to be a justice of the peace by operation of Act No. 3107. The Segovia ruling was reiterated, i.e. Act No. 3107 should be given prospective effect only, as there was no express statement making the law applicable retroactively.

Public Office not property A public office is not the property of the public officer within the provision of the Constitution against deprivation of property without due process of law or within an agreement in a treaty not to impair the property or rights of private individuals. Exceptions: (1) In quo warranto proceedings relating to the question as to which of 2 persons is entitled to a public office (2) In an action for recovery of compensation accruing by virtue of the public office Cornejo v. Gabriel Due process is violated only if an office is considered property. However, a public office is not property within the constitutional guaranties of due process. It is a public trust or agency. As public officers are mere agents and not rulers of the people, no man has a proprietary or contractual right to an office. Every officer accepts office pursuant to law and holds office as a trust for the people whom he represents. Abeja v. Tanada

Public office being personal, the death of a public officer terminates his right to occupy the contested office and extinguishes his counterclaim for damages. His widow and/or heirs cannot be substituted in the counterclaim suit.

Modes of Creation of Public Office (1) (2) (3) by the Constitution by statute / law by a tribunal or body to which the power to create the office has been delegated

Scope and Extent of Power of legislature GENERAL RULE: The creation of a public office is primarily a legislative function. (1) where the offices are created by the Constitution; (2) where the Legislature delegates such

Exceptions:

power.

Delegation of power to create public office Q: What is the effect where an office is created pursuant to illegally delegated powers? A: The office would have no existence.

U.S.T. v. Board of Tax Appeals The authority given to the President to "reorganize within one year the different executive departments, bureaus and other instrumentalities of the Government" in order to promote efficiency in the public service is limited in scope and cannot be extended to other matters not embraced therein. Therefore, an executive order depriving the Courts of First Instance of jurisdiction over cases involving recovery of taxes illegally collected is null and void, as Congress alone has the "power to define, prescribe and apportion the jurisdiction of the various courts."

Methods of Organizing offices (1) Single-head: one head assisted by subordinates. Swifter decision and actions but may sometimes be hastily made. (2) Board System: collegial body in formulating polices and implementing programs. Mature studies and deliberations but may be slow in responding to issues and problems. Modification and Abolition GENERAL RULE: The power to create an office includes the power to modify or abolish it. (i.e., this is generally a legislative function)

EXCEPTIONS: (1) Where the Constitution prohibits such modification / abolition; (2) Where the Constitution gives the people the power to modify or abolish the office; Ocampo v. Secretary of Justice The legislative power to create a court carries with it the power to abolish it. When the court is abolished, any unexpired term is abolished also. Zandueta v. De la Costa RULE: When a public official voluntarily accepts an appointment to an office newly created by law -- which new office is incompatible with the former -- he will be considered to have abandoned his former office. Exception: When the non-acceptance of the new appointment would affect public interest, and the public official is thereby constrained to accept. Estoppel to deny existence of office Q: When is a public officer estopped from denying that he has occupied a public office? A: When he has acted as a public officer, esp. where he has received public monies by virtue of his office.

Public Officer Volunteer Service under RA 6713

Definition A public officer is one who performs public functions / duties of government by virtue of direct provision of law, popular election, or appointment by competent authority. His duties involve the exercise of discretion in the performance of the functions of the government, and are not of a merely clerical or manual nature. (See Sec. 2 (14), E.O. 292) Note: For the purpose of applying the provisions of the Revised Penal Code, employees, agents, or subordinate officials, of any rank or class, who perform public duties in the government or in any of its branches shall be deemed as public officers. Illustrations: In the case of Maniego v. People, a laborer who was in charge of issuing summons and subpoenas for traffic violations in a judge's sala was convicted for bribery under RPC 203. The court held that even temporary performance of public functions is sufficient to constitute a person as a public official. In the case of People v. Paloma, a sorter and filer of money orders in the Auditor's Office of the Bureau of Posts was convicted for infidelity in the custody of documents. The court pointed out that the sorting and filing of money orders in the Bureau of Posts is obviously a public function or duty.

Who are not considered public officers? Special policemen salaried by a private entity and patrolling only the premises of such private entity (Manila Terminal Co. v. CIR); Concession forest guards (Martha Lumber Mill v. Lagradante); Company cashier of a private corporation owned by the government (Tanchoco v. GSIS)

May a person be compelled to accept a public office? GENERAL RULE: EXCEPTIONS: (1) When citizens are required, under conditions provided by law, to render personal military or civil service (Sec. 4, Art. II, 1987 Const.); (2) When 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 (Art. 234, RPC; Note: the penalty shall be either arresto mayor, or a fine not exceeding P 1,000.00, or both ) NO.

No presumption of power Villegas v. Subido Nothing is better settled in the law than that a public official exercises power, not rights. The government itself is merely an agency through which the will of the state is expressed and enforced. Its officers therefore are likewise agents entrusted with the responsibility of discharging its functions. As such, there is no presumption that they are empowered to act. There must be a delegation of such authority, either express or implied. In the absence of a valid grant, they are devoid of power.

Classification of Public Offices and Public Officers Creation (1) (2) Public Body Served (1) (2) National Local Constitutional Statutory

Department of government to which their functions pertain (1) (2) Legislative Executive

(3) Nature of functions (1) (2)

Judicial

Civil Military

Exercise of Judgment or discretion (1) (2) Legality of Title to office (1) (2) Compensation (1) (2) Lucrative Honorary De Jure De Facto Quasi-judicial Ministerial

DE FACTO OFFICERS De Facto Doctrine Q: What is the de facto doctrine? A: It 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 until: (a) by judicial declaration in a proper proceeding he is ousted therefrom; or (b) his admission thereto is declared void. Q: What is the purpose for the doctrine? A: It is to ensure the orderly functioning of government. The public cannot afford to check the validity of the officer's title each time they transact with him. De Facto Officer defined Q: When is a person a de facto officer? A: Where the duties of the office are exercised under any of the following circumstances:

(1) Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to the be the officer he assumed to be; or (2) Under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent requirement or condition (e.g., taking an oath or giving a bond); (3) Under color of a known election or appointment, void because: (a) the officer was not eligible; (b) there was a want of power in the electing or appointing body; (c) there was a defect or irregularity in its exercise; such ineligibility, want of power, or defect being unknown to the public. (4) Under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such. Note: Here, what is unconstitutional is not the act creating the office, but the act by which the officer is appointed to an office legally existing. (Norton v. County of Shelby) Officer De Jure v. Officer De Facto De Jure Requisites De Facto

(1) Existence of a de (1) De jure office; jure office; (2) must possess the (2) Color of right or legal qualifications general for the office in acquiescence by question; the public; (3) must be lawfully (3) Actual physical chosen to such possession of the office; office in good faith (4) must have qualified himself to perform the duties of such office

according to the mode prescribed by law. Basis Authority of Right: he has the Reputation: Has the lawful right / title to the possession and office performs the duties under color of right, without being technically qualified in all points of law to act Cannot be ousted. Only by a proceeding warranto); not collaterally direct (quo

How ousted

Validity of Valid, subject to official acts exceptions (e.g., they were done beyond the scope of his authority, etc.) Rule on Entitled Compensation compensation matter of right;

Valid as to the public until such time as his title to the office is adjudged insufficient.

to Entitled to receive a compensation only during the time when no de jure officer is The principle of "no declared; work, no pay" is not applicable to him. He is paid only for actual services rendered by him. as

Officer De Facto v. Intruder De Facto Nature Officer under any of the 4 circumstances discussed under Part II (above). Intruder One who takes possession of an office and undertakes to act officially without any authority, either actual or apparent

Basis authority

of Color of right or title to None. He has neither office lawful title nor color of right or title to office.

Validity of Valid as to the public "official" acts until such time as his title to the office is adjudged insufficient

Absolutely void; they can be impeached at any time in any proceeding (unless and until he continues to act for so long a time as to afford a presumption of his right to act)

Rule on Entitled to receive Not entitled to compensation compensation only compensation at all. during the time when no de jure officer is declared; He is paid only for actual services rendered by him.

Q: Can an intruder / usurper ripen into a de facto officer? A: Yes. With 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.

Q: Is good faith a factor in the ripening of intruder status into de facto status? A: Yes. HOWEVER, it must be noted that the good faith must be on the part of the public; not on the part of the intruder.

Elements of a De Facto Officership (1) De jure office (2) Color of right or general acquiescence by the public; (3) Actual physical possession of the office in good faith Note: This is not absolutely true. An intruder / usurper may ripen into a de facto officer.

Examples of De Facto Officers

A judge who continued to exercise his duties after his appointment was disapproved by the CA according to a newspaper report, but before receiving the official notification regarding the rejection of his appointment (Regala v. Judge of CFI); A lawyer instructed by the Acting Provincial Governor to file an information for homicide, where the latter had no authority to designate him as assistant fiscal, and where the DOJ had not authorized him to act as such (People v. Penesa); A third-ranking councilor who is designated to act as mayor by an officer other than the proper appointing authority prescribed by law, and lacking the consent of the Provincial Board (Codilla v. Martinez)

Examples of those not considered as De Facto Officers A judge who has accepted an appointment as finance secretary and yet renders a decision after having accepted such appointment (Luna v. Rodriguez); A judge whose position has already been abolished by law, and yet promulgates a decision in a criminal case after the abolition and over the objection of the fiscal (People v. So)

Legal Effect of Acts of De Facto Officers As regards the officers themselves GENERAL RULE: A party suing or defending in his own right as a public officer must show that he is an officer de jure. It is not sufficient that he be merely a de facto officer.

As regards the public and third persons GENERAL RULE: The acts of a de facto officer are valid as to third persons and the public until his title to office is adjudged insufficient.

Official Acts of De Facto Officers not subject to collateral attack RULE: The title of a de facto officer and the validity of his acts cannot be collaterally questioned in proceedings to which

he is not a party, or which were not instituted to determine the very question. REMEDY: Quo warranto proceedings Who may file: (1) The person who claims to be entitled to the office; (2) The Republic of the Philippines, represented by (a) the Solicitor-General; or (b) a public prosecutor Nueno v. Angeles In this case, there were four (4) petitioners seeking to oust six (6) Board Members. The Court held that this could not be done unless all 4 of them were entitled to the offices of the 6.

Liabilities of De Facto Officers The liability of a de facto officer is generally held to be the same degree of accountability for official acts as that of a de jure officer. The de facto officer may be liable for all penalties imposed by law for any of the following acts: (a) usurping or unlawfully holding office; (b) exercising the functions of public office without lawful right; (c) not being qualified for the public office as required by law. The de facto officer cannot excuse his responsibility for crimes committed in his official capacity by asserting his de facto status.

ELIGIBILITY AND QUALIFICATIONS Definition Eligibility, which is the term usually used in reference to the Civil Service Law, refers to the endowment / requirement / accomplishment that fits one for a public office. Qualification generally refers to the endowment / act which a person must do before he can occupy a public office.

Power to Prescribe Qualifications GENERAL RULE: Congress is empowered to prescribe the qualifications for holding public office, subject to the following restrictions:

Congress cannot exceed its constitutional powers; Congress cannot impose conditions of eligibility inconsistent with constitutional provisions; The qualification must ("reasonable relation" rule); be germane to the position

Congress cannot prescribe qualifications so detailed as to practically amount to making an appointment. (Legislative appointments are unconstitutional and therefore void for being a usurpation of executive power.); Where the Constitution establishes specific eligibility requirements for a particular constitutional office, the constitutional criteria areexclusive, and Congress cannot add to them except if the Constitution expressly or impliedly gives the power to set qualifications.

Q: What legislative enactments are tantamount to legislative appointments? A: Extensions of the terms of office of the incumbents; The People's Court Act, which provided that the President could designate Judges of First Instance, Judges-at-large of First Instance or Cadastral Judges to sit as substitute Justices of the Supreme Court in treason cases without them necessarily having to possess the required constitutional qualifications of a regular Supreme Court Justice. (Vargas v. Rilloraza); A proviso which limits the choices of the appointing authority to only one eligible, e.g. the incumbent Mayor of Olongapo City (Flores v. Drilon); A legislative enactment abolishing a particular office and providing for the automatic transfer of the incumbent officer to a new office created (contemplated in Manalang v. Quitoriano); A provision that impliedly prescribes inclusion in a list submitted by the Executive Council of the Phil. Medical Association as one of

the qualifications for appointment; and which confines the selection of the members of the Board of Medical Examiners to the 12 persons included in the list (Cuyegkeng v. Cruz) ; Manalang v. Quitoriano Congress cannot either appoint a public officer or impose upon the President the duty to appoint any particular person to an office. The appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resulting from: (1) the need of securing the concurrence of the Commission on Appointments; and (2) the exercise of the limited legislative power to prescribe the qualifications to a given appointive office. Cuyegkeng v. Cruz The power of appointment vested in the President by the Constitution connotes necessarily a reasonable measure of freedom, latitude, or discretion in the exercise of the power to choose appointees. Flores v. Drilon Where only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature itself of appointment.

Time of Possession of Qualifications Q: When must the qualifications be possessed? A: Where the time is specified by the Constitution or law:

At the time specified

Where silent:

the

Constitution

or

law

is

There are 2 views: (1) qualification must be at the time of commencement of term or induction into office; (2) qualification / eligibility must exist at the time of the election or appointment

* Eligibility is a continuing nature, and must exist throughout the holding of the public office. Once the qualifications are lost, then the public officer forfeits the office. Castaneda v. Yap Knowledge of ineligibility of a candidate and failure to question such ineligibility before or during the election is not a bar to questioning such eligibility after such ineligible candidate has won and been proclaimed. Estoppel will not apply in such a case. Frivaldo v. COMELEC The citizenship requirement must be met only on election day. While the Local Government Code requires one year residency immediately preceding election day and the prescribed age on election day, no date is specified for citizenship. The purpose of the citizenship requirement is to ensure leaders owing allegiance to no other country. Such purpose is not thwarted, but instead achieved by construing the requirement to apply at time of proclamation and at the start of the term.

Qualifications usually prescribed a) President (Sec. 2, Art. VI, Constitution) Vice President (Sec. 3, Art. VII, Constitution) Natural-born citizen 40 years old on day of election resident of the Philippines for at least 10 yrs immediately preceding election day

b) Senator (Sec. 3, Art. VI, Constitution) Natural-born citizen 35 years old on day of election able to read and write registered voter resident of the Philippines for not less than two years immediately preceding election day

c)

Congressmen (Sec. 6, Art. VI, Constitution) Natural-born citizen 25 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

d)

Supreme Court Justice Natural born citizen at least 40 years old 15 years or more a judge or engaged in law practice of proven CIPI (competence, integrity, probity and independence)

e)

Civil Service Commissioners (Sec. 1 [1], Art. IXB. Constitution) Natural-born citizen 35 years old at time of appointment proven capacity for public administration not a candidate for any elective position in elections immediately preceding appointment

f)

COMELEC Comm. (Sec. 1[1], Art. IXC) Natural-born citizen 35 years old at time of appointment college degree holder not a candidate for elective position in election immediately preceding appointment chairman and majority should be members of the bar who have been engaged in the practice of law for at least 10 years (See Cayetano v. Monsod)

g)

COA Commissioners Natural-born citizen 35 years old at time of appointment CPA with >10 year of auditing experience or Bar member engaged in practice of law for at least 10 years Not have been candidates for elective position in elections immediately preceding appointment Cayetano v. Monsod Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. Generally, to practice law is to give notice or render any kind of service which requires the use in any degree of legal knowledge or skill. Residency of not less than 1 year prior to the elections for the position of Congressman. In election law, residence refers to domicile, i.e. the place where a party actually or constructively has his

Aquino v. COMELEC:

permanent home, where he intends to return. To successfully effect a change of domicile, the candidate must prove an actual removal or an actual change of domicile. Here, it was held that leasing a condominium unit in the district was not to acquire a new residence or domicile but only to qualify as a candidate. Marcos v. COMELEC: Domicile, which includes the twin elements of actual habitual residence, and animus manendi, the intention of remaining there permanently. It 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.

Religious Test or Qualification No religious test shall be required for the exercise of civil or political rights. (Art. III, Sec. 5, 1987 Constitution)

FORMATION OF OFFICIAL RELATION Modes of Commencing Official Relation (a) (b) (c) Election Appointment Others: (i) Succession by operation of law; (ii) Direct provision of law, e.g. ex-oficio officers

Election:

Selection or designation by a popular vote

Appointment Definition Q: Distinguish between designation and appointment. Designation Appointment

Definition

Imposition of Selection of an additional duties upon individual to occupy a an existing office certain public office by one authorized by law to make such selection

Extent Powers Security tenure?

of Limited

Comprehensive

of No.

Yes.

When deemed abandonment of prior office

Assumption of a designated position is not deemed abandonment of the 1st position

Assumption of a nd 2 appointive position is usually deemed abandonment of the first office.

Nature of Appointing Power The power to appoint is intrinsically an executive act involving the exercise of discretion. (Concepcion v. Paredes) The power and prerogative to a vacant position in the civil service is lodged with the appointing authority.

Constitutional Provisions Q: Who can the President nominate and appoint with the consent of the Commission on Appointments? A: Heads of the executive departments (Art. VII, Sec. 16, 1987 Const.); Ambassadors (ibid); Other public ministers and consuls (ibid); Officers of the armed forces from the rank or colonel or naval captain (ibid); Other officers whose appointments are vested in him by the Constitution (ibid), including Constitutional

Commissioners (Art. IX-B, Sec. 1 (2) for CSC; Art. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA). Q: Who can the President appoint without the need for CA approval? A: All other officers of the government whose appointments are not otherwise provided for by law; Those whom he may be authorized by law to appoint; Members of the Supreme Court; Note: To be appointed from a list of at least 3 nominees prepared by the Judicial and Bar Council (Art. VIII, Sec. 9, 1987 Const.) Judges of lower courts; Note: To be appointed from a list of at least 3 nominees prepared by the Judicial and Bar Council (Art. VIII, Sec. 9, 1987 Const.) Ombudsman and his deputies Note: To be appointed from a list of at least 6 nominees prepared by the Judicial and Bar Council, and from a list of 3 nominees for every vacancy thereafter (Art. XI, Sec. 9, 1987 Const.)

Q: Does the President have the power to make appointments when Congress is in recess? A: Yes. However, such appointments shall be effective only until: (1) disapproval by the Commission on Appointments; or (2) the next adjournment of the Congress (Sec. 16, Art. VII, 1987 Const.)

Q: What is the effectivity of appointments extended by an Acting President? A: Such appointments shall remain effective unless revoked by the elected President within 90 days from his

assumption or reassumption of office. (Sec. 14, Art. VII, 1987 Const.)

Qualification Standards and Requirements under the Civil Service Law Qualification Standards: Express the minimum requirements for a class of positions in terms of education , training and experience, civil service eligibility, physical fitness, and other qualities required for successful performance. (Sec. 22, Book V, EO 292) A statement of the minimum qualifications of a position which shall include education, experience, training, civil service eligibility, and physical characteristics and personality traits required by the job. (Sec. 2, Rule IV, Omnibus Rules)

With respect to a particular position, such qualification standards shall serve as the basis for the determination by the appointing authority of the degree of qualifications of an officer or employee (ibid); Shall be used as basis for civil service examinations for positions in the career service, as guides in appointment and other personnel actions, in the adjudication of protested appointments, in determining training needs, and as aid in the inspection and audit of the agencies' personnel work programs (ibid); Shall be administered in such manner as to continually provide incentives to officers and employees towards professional growth and foster the career system in the government service (ibid); It shall be the responsibility of the departments and agencies to establish, administer and maintain the qualification standards on a continuing basis as an incentive to career advancement. (Sec. 7, Rule IV, Omnibus Rules)

Their establishment, administration, and maintenance shall be the responsibility of the department / agency, with the assistance and approval of the CSC and in consultation with the Wage and Position Classification Office (ibid);

Whenever necessary, the CSC shall provide technical assistance to departments and agencies in the development of their qualification standards. (Sec. 5, Rule IV, Omnibus Rules)

Shall be established for all positions in the 1st and 2 levels (Sec. 1, Rule IV, Omnibus Rules);
nd

Political Qualifications for an Office GENERAL RULE: office. Exceptions: Political qualifications are not required for public

(1) Membership in the electoral tribunals of either the House of Representatives or Senate (Art. VI, Sec. 17, 1987 Const.); (2) Party-list representation; (3) Commission on Appointments; (4) Vacancies in the Sanggunian (Sec. 45, Local Government Code)

Property Qualifications In the cases of Maquera v. Borra and Aurea v. COMELEC, the Supreme Court struck down R.A. 4421 which required candidates for national, provincial, city and municipal offices to post a surety bond equivalent to the one-year salary or emoluments of the position to which he is a candidate, which shall be forfeited in favor of the govt. concerned if the candidate fails to obtain at least 10% of the votes cast. The Supreme Court held that property qualifications are inconsistent with the nature and essence of the Republican system ordained in our Constitution and the principle of social justice underlying the same. The Court reasoned out that: "Sovereignty 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. Social justice presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no person shall, by reason of poverty, be denied the chance to be elected to public office."

Aliens not eligible to public office This is self-explanatory. Effect of removal of qualifications during the term Q: What happens if the qualification is lost which the officer is holding office? A: The officer must be terminated. Effect of pardon upon the disqualification to hold public office GENERAL RULE: right to Code) Exceptions: (1) Where such right to hold public office is expressly restored by the terms of the pardon (Art. 36, RPC); (2) When a person is granted pardon because he did not commit the offense imputed to him (Garcia v. Chairman, COA) Rules governing effects of pardon: (1) A public official who has been convicted of a crime but has been pardoned must secure a reappointment before he / she can reassume his / her former position. (Monsanto v. Factoran) Note: Acquittal is the only ground for automatic reinstatement of a public officer to his / her former position. (2) Pardon does not exempt the culprit from payment of the civil indemnity imposed upon him / her by the sentence. (Art. 36, par. 2, RPC) (3) A convicted public official who has been pardoned is not entitled to backpay and other emoluments due to him during the period of his suspension pendente lite. (Monsanto v. Factoran) Discretion of appointing official Discretion, 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. They are in the most A pardon shall not work the restoration of the hold public office. (Art. 36, Revised Penal

favorable position to determine who can best fulfill the functions of the office thus vacated. Unless, therefore, the law speaks 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. Abeleda) Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to this best lights, the only condition being that the appointee should possess the qualifications required by law. (Lapinid v. CSC) The only function of the CSC is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment. It cannot order the replacement of the

appointee simply because it considers another employee to be better qualified. (Lapinid v. CSC) To hold that the Civil Service Law requires 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. The requirement under the Civil Service Law that the appointing power set forth the reason for failing to appoint the officer next in rank 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. (Pineda v. Claudio) The CSC is not empowered to change the nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified and all the legal requirements are satisfied, the CSC has no choice but to attest to the appointment. (Luego v. CSC) Appointment is a political question. Where the palpable excess of authority or abuse of discretion in refusing to issue promotional appointment would lead to manifest injustice, mandamus will lie to compel the appointing authority to issue said appointments. (Gesolgon v. Lacson)

Effectivity of Appointment Q: When does an appointment take effect?

A: Immediately upon its issuance by the appointing authority. (Rule V, Sec. 10, Omnibus Rules).

When appointment becomes complete, final and irrevocable GENERAL RULE: An appointment, once made, is irrevocable and not subject to reconsideration. Where the assent, confirmation, or approval of officer or body is needed before the appointment may be issue and be deemed complete. Exceptions: (1) When the appointment is an absolute nullity (Mitra v. Subido); (2) When there is fraud on the part of the appointee (Mitra v. Subido); (3) Midnight appointments A completed appointment vests a legal right. It cannot be taken away EXCEPT for cause, and with previous notice and hearing (due process).

Qualification: some other

Midnight appointments A President or Acting President is prohibited from making appointments 2 months immediately before the next presidential elections and up to the end of his term. (Art. VII, Sec. 15, 1987 Const.) Exception: Temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

ASSUMPTION AND TERM OR TENURE OF OFFICE Qualification to Office Appointment and Qualification to Office Distinguished Appointment and qualification to office are separate and distinct things. Appointment is the act of being designated to a public office by the appointing authority. Qualification is the act of signifying one's acceptance of the appointive position. This generally consists of the taking / subscribing /

filing of an official oath, and in certain cases, of the giving of an official bond, as required by law. (Mechem) No one can be compelled to accept an appointment. Lacson v. Romero The appointment to a government post involves several steps: (1) the President nominates; (b) the Commission on Appointments confirms the appointment; and (c) the appointee accepts the appointment by his assumption of office. The first 2 steps are mere offers to the post but the last step rests solely with the appointee who may or may not accept the appointment. Borromeo v. Mariano A judge may not be made a judge of another district without his consent. Appointment and qualification to office are separate and distinct things. Appointment is the sole act of the appointee. There is no power which can compel a man to accept the office. Effect of Failure to Qualify Failure to qualify is deemed evidence of refusal of the office. It is a ground for removal: If qualification is a condition precedent: facto deemed

Failure

to

qualify ipso

rejection of the office If not condition facto rejection Justifiable reasons for delay in qualifying include sickness, accident, and other fortuitous events that excuse delay. The Omnibus Election Code provides that the officer must qualify (i.e., take his oath of office and assume office) within 6 months from proclamation. Otherwise, the position will be deemed vacant. Exception: If the non-assumption of office is due to a cause beyond his control. Qualification is significant because it designates when security of tenure begins. precedent: Failure is not ipso

Oath of Office

An oath is an outward pledge whereby one formally calls upon God to witness to the truth of what he says or to the fact that he sincerely intends to do what he says. Although the law usually requires the taking of an oath, it is not indispensable. It is a mere incident to the office and constitutes no part of the office itself. However, the President, Vice-President and Acting President are required by the Constitution (Art. VII, Sec. 5) to take an oath or affirmation before entering into the execution of their office. Such oath-taking is mandatory. Q: Who are authorized to administer oaths? A: (1) Notaries public; (2) Judges; (3) Clerks of court; (4) Secretary of House / Senate; (5) Secretary of Exec. Departments; (6) Bureau Directors; (7) Register of Deeds; (8) Provincial governors; (9) City mayors; (10) Municipal mayors; (11) Any other officer in the service of the government of the Philippines whose appointment is vested in the President; (12) Any other officer whose duties, as defined by law or regulation, require presentation to him of any statement under oath

Q: Who are obliged to administer oaths in all instances, and not just in matters of official business? A: (1) Notaries public; (2) Municipal judges; (3) Clerks of court

Time of Taking the Oath of Office A public officer must take his oath of office before entering upon the discharge of his duties. Requalification If a public officer is re-elected or re-appointed, he must take another oath and fulfill the other condition precedents before assuming office. The oath and other qualifications made prior to assumption of his previous office will not be valid for subsequent terms of office.

Giving of Bonds Persons required to give bond Q: Who are the public officers generally required to give a bond? A: (1) Accountable public officers or those to whom are entrusted the collection and custody of public money; (2) Public ministerial officers whose actions may affect the rights and interests of individuals. The bond is in the nature of an indemnity bond rather than a penal or forfeiture bond. The bond is also an obligation binding the sureties to make good the officers default. It is required 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 injury by reason of misconduct or neglect in office.

Effect of Failure to Give Bond within the Prescribed Period If not condition precedent: ground for Failure to give bond merely constitutes a forfeiture of the office; it is not forfeiture of the office ipso facto. IF condition precedent: prescribed period Failure to give bond within the renders the office vacant.

Term and Tenure of Office Term of Office and Tenure of Office Distinguished Term of Office De jure Fixed and definite period of time incumbent during which the officer may be claim to hold the office as of right shorter than the term. actually holds the office. It may Tenure of Office De facto Period during which the

Alba v. Evangelista It is only in those cases in which the office is held at the pleasure of the appointing power and where the power of removal is exercisable at its mere discretion that the officer may be removed without notice or hearing.

Power of the Legislature to Fix and Change the Term of Office RULES: Where the term is fixed by the Constitution: the term.

Congress has no power to alter

However, such term of office can be shortened or extended by the vote of the people ratifying a constitutional amendment. Where the term is not fixed: officers the Const. Congress has the power to change the tenure of officers holding offices created by it. However, 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. When Term of Office Dependent upon "Pleasure of the President" Congress can legally and constitutionally make the tenure of certain officials dependent upon the pleasure of the President. (Alba v. Evangelista) Where the office is held at the pleasure of the appointing power and such appointing power can exercise the power of removal at his mere discretion, the public officer may be removed without notice or hearing. (Alba v. Evangelista) Congress may fix the terms of other than those provided for in

No Vested Interest in Term of Office Public office is a privilege revocable by the sovereignty at will. An incumbent cannot validly object to the alteration of his term since he has no vested right in his office. (Greenshow v. U.S.)

Term of Office Not Extended by Reason of War

There is no principle, law or doctrine by which the term may be extended by reason of war. (Nueno, et al. v. Angeles)

Doctrine of Holdover Q: What is the doctrine of hold-over? A: A public officer whose term has expired or services have been terminated is allowed to continue holding his office until his successor is appointed or chosen and had qualified. (Mechem) Purpose of the Hold-Over Rule Public interest. It is to prevent a hiatus in the government pending the time when a successor may be chosen and inducted into office. Holding-Over Rules (1) Where the law provides for it: The office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it. Incumbent will hold-over even if beyond the term fixed by law. (2) Where the law is silent: Unless hold-over is expressly or impliedly prohibited, incumbent may hold-over.

(3) Where the Constitution limits the term of a public officer and does not provide for hold-over:

Hold-over is not permitted.

Commencement of Term of Office RULES: (1) Where the time is fixed: specified date. The term will begin on the

(2) Where no time is fixed: The term will generally begin on the date of the election or the appointment.