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Magalang 2005-37421 Law on Public Officers DISQUALIFICATIONS OF PUBLIC OFFICERS Disqualification – the state of possessing characteristics or circumstances which will cause a person not to qualify for public office. - Possession of characteristics or circumstances which a candidate or applicant for a public office should not have. A. General Disqualifications – these are disqualifications which apply generally to all public officers, whether appointive or elective. 1) MENTAL INCAPACITY Rule: A person mentally incapacitated is incapable of holding or assuming public office. o Basis: Public office presumes the exercise of official and governmental functions which a person not legally capacitated to act can never carry out. Under Article 38 of the Civil Code, insanity or imbecility are restrictions on a person’s capacity to act. o Section 40 (g) of the Local Government Code disqualifies the insane or feebleminded. 2) MISCONDUCT OR CRIME GR: A person convicted of a crime cannot run for or hold public office, especially if the crime is one involving moral turpitude o Basis: Article XI, Section 1: Public office is a public trust, and it requires that public officers be of utmost integrity o Conviction for any crime which carries with it the accessory penalty of temporary or permanent absolute disqualification will cause a person to be disqualified from holding any office in the Republic of the Philippines. In case of temporary absolute disqualification, the disqualification shall last during the term of the sentence (Article 30, Revised Penal Code). Penalties in which these accessory penalties are inherent include: Death (perpetual absolute disqualification) Reclusion perpetua and reclusion temporal (perpetual absolute disqualification) Prision mayor (temporary absolute disqualification) Prision correctional (suspension from public office only) o Section 40 (a), Local Government Code: persons sentenced by a final judgment for an offense involving moral turpitude or for an offense punishable by one year or more of imprisonment are disqualified from running for any elective local position within two years after serving sentence Exceptions: When pardoned and right to hold public office expressly restored. o Effect of pardon (Article 36, Revised Penal Code): GR: does not restore the right to hold public office or the right of suffrage E: if such rights be expressly restored by the terms of the pardon. 3) HOLDING OTHER OFFICE GR: A public officer is constitutionally prohibited from holding more than one office. Holding a first office constitutes a disqualification for a second office. o Bases: Article IX-B, Section 7 of the 1987 Constitution
EO 292: no elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Executive Secretary) The President may chair the NEDA (Article XII. Exceptions: o As to elective officers: The President who could chair the National Security Council (Civil Liberties Union v. driver. o When the law does not specifically impose disqualification as a consequence of a misconduct for which the penalty of removal or suspension is appropriate.e.g. Drilon) o Section 54 (1). e. Section 54 (2). Special Disqualifications – these are disqualifications which pertain only to particular set of officers. 7277. Section 13 may hold another office provided it is allowed by law or by the primary functions of their office (Article IX-B. 2) REMOVAL OR SUSPENSION FROM OFFICE GR: Removal or suspension per se does not operate to disqualify a person from holding public office. Title I. Section 13: prohibition on the President and the members of his official family o Article VIII. Section 3) o As to appointive officers: The Secretary of Justice may sit as ex-officio member of the JBC (Article VIII. related to the primary functions of their office. Page 2 .A. E: When the nature of the job requires particular body or sensory functions not possessed by a person with disability. Section 2: prohibition on the Members of the Constitutional Commissions o Article XI. Section 13: prohibition on Senators or Members of the HOR Article VII. 1) PHYSICAL INCAPACITY GR: Physical incapacity by itself is not a disqualification for public office. Chapter 7. Section 9) The Vice-President may be appointed as Cabinet Member (Article VII.. Section 12: prohibition on the Members of the Supreme Court and of other courts established by law o Article IX-A. Section 8: prohibition on the Ombudsman and his deputies o Article XVI. Article VI. without need for additional appointment and without additional compensation (Civil Liberties Union v. Executive Secretary) All other appointive officers not falling within Article VII. their deputies or assistants may sit in another office provided it is in an ex-officio capacity. Book V. Section 7. Book V. Section 5 (4): prohibition on members of the armed forces in the active service o Section 94 (a). Chapter 7. Local Government Code (but see Flores v.. o Basis: Section 5 of the Magna Carta for Persons with Disability (R. EO 292) o o B. Title I.A. Section 8) Cabinet members. i. 10524) expressly mandates equal opportunity for employment in favour of persons with disability. as amended by R.
city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives Page 3 . Rule: Public office is a full time job. Sec. Public officers are prohibited from directly or indirectly practicing other professions or from moonlighting in any other employment or occupational activity. o Article VI. o Article VII.g. where there is no constitutional or statutory ineligibility for such cause. Section 3 (7): persons impeached from office may be disqualified from holding any office under the Republic of the Philippines o When the removal or suspension from office is imposed as a consequence of misconduct in office. as a consequence of criminal proceedings against a public officer. o Article VII. the disciplining authority should not impose such disability. 1(2). 1(2). Article XI. Section 4: a person who has been elected to and has held office of President is absolutely disqualified for any re-election regardless of length of time he served as such. o Article IX-B. Section 4: a person who merely succeeded as President is disqualified only if he has served as such for more than four years. the judgment rendered metes out disqualification from holding any public office When. i. Local Government Code: public officers removed from office as a result of an administrative case are disqualified from running for any elective local position. 1(2). Section 14: no Senator or Member of the HOR may personally appear as counsel before any court of justice. the Ombudsman and his Deputies shall not be qualified to run for an elective office in an election immediately succeeding their cessation from office. quasi-judicial or administrative bodies. and the penalty specifically imposes a personal disqualification on the public officer concerned. 11: previous tenure of office works as a disqualification for certain appointive officers.. Article IX-C.e. Local Government Code: all governors. Article XI. who cannot be reappointed. 4) PRACTICE OF PROFESSION – this is not. o Section 90 (a). E. a disqualification but rather a limitation on the freedom of public officers to practice their professions or engage in other occupational activities. Section 13: absolute prohibition on the President and his official family from holding any other office or employment or directly or indirectly practicing any other profession. o However. Exceptions: o When the Constitution or the law itself disqualifies: Section 40 (b). when as a consequence of an administrative case against a public officer.. Sec. the accessory penalty of temporary or perpetual absolute disqualification is imposed in addition to removal from office. strictly speaking. a person removed from office cannot run or hold the same position to fill the vacancy created by his removal. 3) PREVIOUS TENURE OF OFFICE GR: Previous occupancy of the same office is a disqualification for certain public officers. o Article XI. Article IX-D. Exceptions: o Article VII. Section 11: although not the same office. Members of the Constitutional Commissions and the Ombudsman and his Deputies. Sec. Sec.
or teach in schools except during session hours (Section 90 (b). Page 4 . Local Government Code: local elective officials shall not serve for more than three consecutive terms 7) NEWLY CREATED OFFICE OR OFFICE WHERE EMOLUMENTS WERE INCREASED Rule: Legislative officials are disqualified from holding an office which was created or which emoluments have been increased during the term for which he was elected. President. Section 7 (b). i. 6713: Public officers during their incumbency shall not engage in the private practice of their profession unless authorized by Constitution or by law. Section 4: a Senator shall not serve for more than two consecutive terms. Members of the Supreme Court. Section 4: the Vice-President shall not serve for more than two consecutive terms o Section 43 (b). engage in any occupation. or with persons exercising immediate supervision over him. o Basis: Article VI. Relationship with the appointing or recommending authority. o Article VI. 6) CONSECUTIVE TERMS Rule: Holding the same elective position for a specified number of terms is a disqualification for certain elective officers. there is no express prohibition. LGC) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency. Sec. but Section 81 of the LGC provides that an increase in compensation shall take effect only after the terms of office of those approving such increase has expired. Members of the Constitutional Commissions.e. Vice-President. provided they do not derive any monetary compensation therefrom. LGC) o When the public officer concerned has obtained a limited authority to practice his or her profession from the department head o Special disqualifications for elective officers: 5) IMPEACHMENT GR: Impeachment is a ground for disqualification from further holding office under the Republic of the Philippines. o Basis: Article XI. and the Ombudsman.A. o Article VII. R. Exceptions: o When the law itself allows such practice Sanggunian members may practice their professions.. is usually a disqualification. and only if the judgment of conviction so provides. Special disqualifications for appointive officers 8) RELATIONSHIP WITH THE APPOINTING POWER GR: Nepotic appointments are prohibited. Section 7: a Member of the HOR shall not serve for more than three consecutive terms. (Section 90 (c). 3 (7) Qualification: The disqualification applies only to impeachable officers. o Article VI. Section 13: disqualification of Senators and Members of the HOR o As for local elective officials. or the chief of bureau or office. provided that such practice will not conflict or tend to conflict with their official functions.
Exceptions: The following are exempted from the operation of the rules on nepotism: o Persons employed in a confidential capacity o Teachers o Physicians o Members of the AFP (Section 59 (2). For obvious reasons. o The disqualification applies to all appointive officers. Basis: Section 59 (1). paragraph 2 of the 1987 Constitution: Spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not. (See holding other office. o Article VII. as the latter is prohibited from holding any other office in the government. Section 1 (1). the rule applies only to appointive offices. or as Secretaries. Book V of E. it does not apply to an elective officer who is an incumbent by virtue of winning an election. chairmen or heads of bureaus or offices. within one year after such election. during the latter’s tenure. Local Government Code: No person shall be appointed in the career service of the local government if he is related within the fourth civil degree of consanguinity or affinity to the appointing or recommending authority. Chapter 7.O. be appointed as Members of the Constitutional Commissions. Title I. Section 13. o 9) PREVIOUS CANDIDACY IN AN ELECTIVE POSITION Rule: No candidate who has lost in any election shall. Section 6 of the 1987 Constitution. Book V of E. 292: prohibited relationship is up to third degree of consanguinity or affinity o Section 79. Local Government Code) Qualification: A Member of any Constitutional Commission must not have been a candidate for any elective position in the elections immediately preceding their appointment. Section 1 (1). or the Office of the Ombudsman. EO 292 Exception: o Losing candidates in a barangay election (Section 94 (b). o Section 94 (b). Local Government Code o Section 54(2). Section 1 (1). including GOCCs and their subsidiaries. Book V. Article IX-D. Title I. o Basis: Article IX-B.O. 292) Qualification: By its nature. Section 7 of the 1987 Constitution) Page 5 . Article IX-C. Chapter 7. be appointed to any office in the Government or any government-owned or controlled corporations or in any of their subsidiaries o Basis: Article IX-B. Chapter 7. Title I. Article IX-B. Undersecretaries.
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