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Reviewer on Public Officers by Atty.

Edwin Sandoval






16 Votes

THE LAW OF PUBLIC OFFICERS
Define Appointment. Discuss its nature.
Held: An appointment to a public office is the unequivocal act of designating or selecting by one having
the authority therefor of an individual to discharge and perform the duties and functions of an office or
trust. The appointment is deemed complete once the last act required of the appointing authority has been
complied with and its acceptance thereafter by the appointee in order to render it effective. Appointment
necessarily calls for an exercise of discretion on the part of the appointing authority. In Pamantasan ng
Lungsod ng Maynila v. Intermediate Appellate Court, reiterated in Flores v. Drilon, this Court has held:
The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he
may exercise freely according to his judgment, deciding for himself who is best qualified among those who
have the necessary qualifications and eligibilities. It is a prerogative of the appointing power x x x.
Indeed, it may rightly be said that the right of choice is the heart of the power to appoint. In the exercise of
the power of appointment, discretion is an integral thereof. (Bermudez v. Torres, 311 SCRA 733, Aug.
4, 1999, 3
rd
Div. [Vitug])
May the Civil Service Commission, or the Supreme Court, validly nullify an appointment on the
ground that somebody else is better qualified?
Held: The head of an agency who is the appointing power is the one most knowledgeable to decide who
can best perform the functions of the office. Appointment is an essentially discretionary power and must be
performed by the officer vested with such power according to his best lights, the only condition being that
the appointee should possess the qualifications required by law. If he does, then the appointment cannot be
faulted on the ground that there are others better qualified who should have been preferred. Indeed, this is
a prerogative of the appointing authority which he alone can decide. The choice of an appointee from
among those who possess the required qualifications is a political and administrative decision calling for
considerations of wisdom, convenience, utility and the interests of the service which can best be made by
the head of the office concerned, the person most familiar with the organizational structure and
environmental circumstances within which the appointee must function.
As long as the appointee is qualified the Civil Service Commission has no choice but to attest to and respect
the appointment even if it be proved that there are others with superior credentials. The law limits the
Commissions authority only to whether or not the appointees possess the legal qualifications and the
appropriate civil service eligibility, nothing else. If they do then the appointments are approved because the
Commission cannot exceed its power by substituting its will for that of the appointing authority. Neither can
we. (Rimonte v. CSC, 244 SCRA 504-505, May 29, 1995, En Banc [Bellosillo, J.])
Does the next-in-rank rule import any mandatory or peremptory requirement that the person
next-in-rank must be appointed to the vacancy?
Held: The next-in-rank rule is not absolute; it only applies in cases of promotion, a process which denotes
a scalar ascent of an officer to another position higher either in rank or salary. And even in promotions, it
can be disregarded for sound reasons made known to the next-in-rank, as the concept does not import any
mandatory or peremptory requirement that the person next-in-rank must be appointed to the vacancy. The
appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of
present employees, reinstatement, reemployment, and appointment of outsiders who have appropriate civil
service eligibility, not necessarily in that order. There is no legal fiat that a vacancy must be filled only by
promotion; the appointing authority is given wide discretion to fill a vacancy from among the several
alternatives provided by law.
What the Civil Service Law provides is that if a vacancy is filled by promotion, the person holding the
position next in rank thereto shall be considered for promotion.
In Taduran v. Civil Service Commission, the Court construed that phrase to mean that the person next-in-
rank would be among the first to be considered for the vacancy, if qualified. In Santiago, Jr. v. Civil
Service Commission, the Court elaborated the import of the rule in the following manner:
One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it
does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right
to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next
higher position x x x (Abila v. CSC, 198 SCRA 102, June 3, 1991, En Banc [Feliciano])
Can a person who lacks the necessary qualifications for a public position be appointed to it in a
permanent capacity? Illustrative case.
Held: At the outset, it must be stressed that the position of Ministry Legal Counsel-CESO IV is
embraced in the Career Executive Service. X x x
In the case at bar, there is no question that private respondent does not have the required CES
eligibility. As admitted by private respondent in his Comment, he is not a CESO or a member of the Career
Executive Service.
In the case of Achacoso v. Macaraig, et al., the Court held:
It is settled that a permanent appointment can be issued only to a person who meets all the requirements
for the position to which he s being appointed, including the appropriate eligibility prescribed. Achacoso did
not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be
withdrawn at will by the appointing authority and at a moments notice, conformably to established
jurisprudence.
The Court, having considered these submissions and the additional arguments of the parties in the
petitioners Reply and of the Solicitor-Generals Rejoinder, must find for the respondents.
The mere fact that a position belongs to the Career Service does not automatically confer security of tenure
in its occupant even if he does not possess the required qualifications. Such right will have to depend on the
nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have
the requisite qualifications for the position cannot be appointed to it in the first place or, only as an
exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate
eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so
designated.
Evidently, private respondents appointment did not attain permanency. Not having taken the
necessary Career Executive Service examination to obtain the requisite eligibility, he did not at the time of
his appointment and up to the present, possess the needed eligibility for a position in the Career Executive
Service. Consequently, his appointment as Ministry Legal Counsel-CESO IV/Department Legal Counsel
and/or Director III, was merely temporary. Such being the case, he could be transferred or reassigned
without violating the constitutionally guaranteed right to security of tenure.
Private respondent capitalizes on his lack of CES eligibility by adamantly contending that the
mobility and flexibility concepts in the assignment of personnels under the Career Executive Service do not
apply to him because he s not a Career Executive Service Officer. Obviously, the contention is without
merit. As correctly pointed out by the Solicitor General, non-eligibles holding permanent appointments to
CES positions were never meant to remain immobile in their status. Otherwise, their lack of eligibility would
be a premium vesting them with permanency in the CES positions, a privilege even their eligible
counterparts do not enjoy.
Then too, the cases on unconsented transfer invoked by private respondent find no application in
the present case. To reiterate, private respondents appointment is merely temporary; hence, he could be
transferred or reassigned to other positions without violating his right to security of tenure. (De Leon v.
Court of Appeals, 350 SCRA 1, Jan. 22, 2001, En Banc [Ynares-Santiago])
In the career executive service, is a career executive service (CES) eligibility all that an employee
needs to acquire security of tenure? Is appointment to a CES rank necessary for the acquisition
of such security of tenure?
Held: In the career executive service, the acquisition of security of tenure which presupposes a
permanent appointment is governed by the rules and regulations promulgated by the CES Board x x x.
As clearly set forth in the foregoing provisions, two requisites must concur in order that an employee in the
career executive service may attain security of tenure, to wit:
CES eligibility; and
Appointment to the appropriate CES rank.
In addition, it must be stressed that the security of tenure of employees in the career executive service
(except first and second level employees in the civil service), pertains only to rank and not to the office or to
the position to which they may be appointed. Thus, a career executive service officer may be transferred or
reassigned from one position to another without losing his rank which follows him wherever he is transferred
or reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower
salary grade, as he is compensated according to his CES rank and not on the basis of the position or office
he occupies.
In the case at bar, there is no question that respondent Ramon S. Roco, though a CES eligible, does not
possess the appropriate CES rank, which is CES rank level V, for the position of Regional Director of the
LTO (Region V). Falling short of one of the qualifications that would complete his membership in the CES,
respondent cannot successfully interpose violation of security of tenure. Accordingly, he could be validly
reassigned to other positions in the career executive service. x x x
Moreover, under the mobility and flexibility principles of the Integrated Reorganization Plan, CES personnel
may be reassigned or transferred from one position to another x x x.
One last point. Respondent capitalizes on the fact that petitioner Luis Mario M. General is not a CES
eligible. The absence, however, of such CES eligibility is of no moment. As stated in Part III, Chapter I,
Article IV, paragraph 5(c), of the Integrated Reorganization Plan
x x x the President may, in exceptional cases, appoint any person who is not a Career Executive Service
eligible; provided that such appointee shall subsequently take the required Career Executive Service
examination and that he shall not be promoted to a higher class until he qualified in such examination.
Evidently, the law allows appointment of those who are not CES eligible, subject to the obtention of said
eligibility, in the same manner that the appointment of respondent who does not possess the required CES
rank (CES rank level V) for the position of Regional Director of the LTO, is permitted in a temporary
capacity. (General v. Roco, 350 SCRA 528, Jan. 29, 2001, 1
st
Div. [Ynares-Santiago])
How are positions in the Civil Service classified? Discuss the characteristics of each.
Ans.: Positions in the Civil Service may be classified into: 1) Career Positions, and 2) Non-
Career Positions.
Career Positions are characterized by (1) entrance based on merit and fitness to be determined as far as
practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for
advancement to higher career positions; and (3) security of tenure (Sec. 7, Chap. 2, Subtitle A, Title I,
Bk. V, E.O. No. 292).
The Non-Career Service shall be characterized by (1) entrance on bases other than of the usual tests of
merit or fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or
which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to
the duration of a particular project for which purpose employment was made (Sec. 9, Chap. 2, Subtitle A,
Title I, Bk. V, E.O. No. 292).

What is a primarily confidential position? What is the test to determine whether a position is
primarily confidential or not?
Held: A primarily confidential position is one which denotes not only confidence in the aptitude of the
appointee for the duties of the office but primarily close intimacy which ensures freedom from intercourse
without embarrassment or freedom from misgivings or betrayals of personal trust or confidential matters of
state. (De los Santos v. Mallare, 87 Phil. 289 [1950])
Under the proximity rule, the occupant of a particular position could be considered a confidential employee if
the predominant reason why he was chosen by the appointing authority was the latters belief that he can
share a close intimate relationship with the occupant which ensures freedom of discussion without fear or
embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. Withal,
where the position occupied is more remote from that of the appointing authority, the element of trust
between them is no longer predominant. (CSC v. Salas, 274 SCRA 414, June 19, 1997)

Does the Civil Service Law contemplate a review of decisions exonerating officers or employees
from administrative charges?
Held: By this ruling, we now expressly abandon and overrule extant jurisprudence that the phrase party
adversely affected by the decision refers to the government employee against whom the administrative
case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank
or salary, transfer, removal or dismissal from office and not included are cases where the penalty imposed
is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days
salary (Paredes v. Civil Service Commission, 192 SCRA 84, 85)or when respondent is exonerated of the
charges, there is no occasion for appeal.(Mendez v. Civil Service Commission, 204 SCRA 965, 968) In
other words, we overrule prior decisions holding that the Civil Service Law does not contemplate a review
of decisions exonerating officers or employees from administrative charges enunciated in Paredes v. Civil
Service Commission (192 SCRA 84); Mendez v. Civil Service Commission (204 SCRA 965); Magpale v. Civil
Service Commission (215 SCRA 398); Navarro v. Civil Service Commission and Export Processing Zone
Authority (226 SCRA 207) and more recently Del Castillo v. Civil Service Commission (237 SCRA 184). (CSC
v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

What is preventive suspension? Discuss its nature.
Held: Imposed during the pendency of an administrative investigation, preventive suspension is not a
penalty in itself. It is merely a measure of precaution so that the employee who is charged may be
separated, for obvious reasons, from the scene of his alleged misfeasance while the same is being
investigated. Thus preventive suspension is distinct from the administrative penalty of removal from office
such as the one mentioned in Sec. 8(d) of P.D. No. 807. While the former may be imposed on a respondent
during the investigation of the charges against him, the latter is the penalty which may only be meted upon
him at the termination of the investigation or the final disposition of the case. (Beja, Sr. v. CA, 207 SCRA
689, March 31, 1992 [Romero])

Discuss the kinds of preventive suspension under the Civil Service Law. When may a civil service
employee placed under preventive suspension be entitled to compensation?
Held: There are two kinds of preventive suspension of civil service employees who are charged with
offenses punishable by removal or suspension: (1) preventive suspension pending investigation (Sec. 51,
Civil Service Law, EO No. 292) and (2) preventive suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal and, after review, the respondent is exonerated(Section 47,
par. 4, Civil Service Law, EO No. 292).
Preventive suspension pending investigation is not a penalty. It is a measure intended to enable the
disciplining authority to investigate charges against respondent by preventing the latter from intimidating or
in any way influencing witnesses against him. If the investigation is not finished and a decision is not
rendered within that period, the suspension will be lifted and the respondent will automatically be
reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should
be reinstated. However, no compensation was due for the period of preventive suspension pending
investigation. The Civil Service Act of 1959(R.A. No. 2260) providing for compensation in such a case once
the respondent was exonerated was revised in 1975 and the provision on the payment of salaries during
suspension was deleted.
But although it is held that employees who are preventively suspended pending investigation are not
entitled to the payment of their salaries even if they are exonerated, they are entitled to compensation for
the period of their suspensionpending appeal if eventually they are found innocent.
Preventive suspension pending investigation x x x is not a penalty but only a means of enabling the
disciplining authority to conduct an unhampered investigation. On the other hand, preventive
suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if
respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should
be reinstated with full pay for the period of the suspension. (Gloria v. CA, G.R. No. 131012, April 21,
1999, En Banc [Mendoza])

Discuss the power of Ombudsman to conduct administrative investigations, and to impose
preventive suspension.
Held: Worth stressing, to resolve the present controversy, we must recall that the authority of the
Ombudsman to conduct administrative investigations is mandated by no less than the Constitution. x x x
R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory power to
conduct administrative investigations. x x x
Section 21 of R.A. 6770 names the officials subject to the Ombudsmans disciplinary authority x x x.
Petitioner is an elective local official accused of grave misconduct and dishonesty. That the Office of the
Ombudsman may conduct an administrative investigation into the acts complained of, appears clear from
the foregoing provisions of R.A. 6770.
However, the question of whether or not the Ombudsman may conduct an investigation over a particular act
or omission is different from the question of whether or not petitioner, after investigation, may be held
administratively liable. This distinction ought here to be kept in mind even as we must also take note that
the power to investigate is distinct from the power to suspend preventively an erring public officer.
Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an official
subject to its administrative investigation is provided by specific provision of law. x x x
We have previously interpreted the phrase under his authority to mean that the Ombudsman can
preventively suspend all officials under investigation by his office, regardless of the branch of government in
which they are employed, excepting of course those removable by impeachment, members of Congress and
the Judiciary.
The power to preventively suspend is available not only to the Ombudsman but also to the Deputy
Ombudsman. This is the clear import of Section 24 of R.A. 6770 abovecited.
There can be no question in this case as to the power and authority of respondent Deputy Ombudsman to
issue an order of preventive suspension against an official like the petitioner, to prevent that official from
using his office to intimidate or influence witnesses (Gloria v. CA, et al., G.R. No. 131012, April 21, 1999, p.
7, 306 SCRA 287)or to tamper with records that might be vital to the prosecution of the case against
him (Yasay, Jr. v. Desierto, et al., G.R. No. 134495, December 28, 1998, p. 9, 300 SCRA 494). In our view,
the present controversy simply boils down to this pivotal question: Given the purpose of preventive
suspension and the circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse
of discretion when he set the period of preventive suspension at six months?
Preventive suspension under Sec. 24, R.A. 6770 x x x may be imposed when, among other factors, the
evidence of guilt is strong. The period for which an official may be preventively suspended must not exceed
six months. In this case, petitioner was preventively suspended and ordered to cease and desist from
holding office for the entire period of six months, which is the maximum provided by law.
The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension
rests with the Ombudsman. The discretion as regards the period of such suspension also necessarily
belongs to the Ombudsman, except that he cannot extend the period of suspension beyond that provided by
law. But, in our view, both the strength of the evidence to warrant said suspension and the propriety of the
length or period of suspension imposed on petitioner are properly raised in this petition for certiorari and
prohibition. X x x
Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the
imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in
the case brought before us, it does appear to us that the imposition of the maximum period of six months is
unwarranted.
X x x [G]ranting that now the evidence against petitioner is already strong, even without conceding that
initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer
than necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that
the period during which petitioner was already preventively suspended, has been sufficient for the lawful
purpose of preventing petitioner from hiding and destroying needed documents, or harassing and preventing
witnesses who wish to appear against him. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2
nd
Div.
[Quisumbing])
Distinguish preventive suspension under the Local Government Code from preventive suspension
under the Ombudsman Act.
Held: We reach the foregoing conclusion, however, without necessarily subscribing to petitioners claim that
the Local Government Code, which he averred should apply to this case of an elective local official, has been
violated. True, under said Code, preventive suspension may only be imposed after the issues are joined,
and only for a maximum period of sixty days. Here, petitioner was suspended without having had the
chance to refute first the charges against him, and for the maximum period of six months provided by the
Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman
Law are distinct from those initiated under the Local Government Code. Respondents point out that the
shorter period of suspension under the Local Government Code is intended to limit the period of suspension
that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political
considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is
not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not
decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive
suspension.
Respondents may be correct in pointing out the reason for the shorter period of preventive
suspension imposable under the Local Government Code. Political color could taint the exercise of the
power to suspend local officials by the mayor, governor, or Presidents office. In contrast the Ombudsman,
considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics,
as respondents would have us believe.
In Hagad v. Gozo-Dadole, on the matter of whether or not the Ombudsman has been stripped of
his power to investigate local elective officials by virtue of the Local Government Code, we said:
Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly
or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in
question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down
the other.
It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman
Law is much too repugnant to the 60-day period that may be imposed under the Local Government
Code. But per J. Vitug, the two provisions govern differently.
However, petitioner now contends that Hagad did not settle the question of whether a local
elective official may be preventively suspended even before the issues could be joined. Indeed it did not,
but we have held in other cases that there could be preventive suspension even before the charges against
the official are heard, or before the official is given an opportunity to prove his innocence. Preventive
suspension is merely a preliminary step in an administrative investigation and is not in any way the final
determination of the guilt of the official concerned.
Petitioner also avers that the suspension order against him was issued in violation of Section
26[2] of the Ombudsman Law x x x.
Petitioner argues that before an inquiry may be converted into a full-blown administrative
investigation, the official concerned must be given 72 hours to answer the charges against him. In his case,
petitioner says the inquiry was converted into an administrative investigation without him being given the
required number of hours to answer.
Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written
answer to the complaint against him. This, however, does not make invalid the preventive suspension order
issued against him. As we have earlier stated, a preventive suspension order may be issued even before
the charges against the official concerned is heard.
Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit to the
complaint filed by respondent Tagaan. We find this 10-day period is in keeping with Section 5[a] of the
Rules of Procedure of the Office of the Ombudsman x x x. (Garcia v. Mojica, 314 SCRA 207, Sept. 10,
1999, 2
nd
Div. [Quisumbing])
Does Section 13, Republic Act No. 3019 exclude from its coverage the members of Congress and,
therefore, the Sandiganbayan erred in decreeing the preventive suspension order against
Senator Miriam Defensor-Santiago? Will the order of suspension prescribed by Republic Act No.
3019 not encroach on the power of Congress to discipline its own ranks under the Constitution?
Held: The petition assails the authority of the Sandiganbayan to decree a ninety-day preventive
suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic of the Philippines, from any
government position, and furnishing a copy thereof to the Senate of the Philippines for the implementation
of the suspension order.
The authority of the Sandiganbayan to order the preventive suspension of an incumbent public
official charged with violation of the provisions of Republic Act No. 3019 has both legal and jurisprudential
support. X x x
In the relatively recent case of Segovia v. Sandiganbayan, the Court reiterated:
The validity of Section 13, R.A. 3019, as amended treating of the suspensionpendente lite of an accused
public officer may no longer be put at issue, having been repeatedly upheld by this Court.
The provision of suspension pendente lite applies to all persons indicted upon a valid information under the
Act, whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to
the career or non-career service. (At pp. 336-337)
It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension
upon determination of the validity of the information filed before it. Once the information is found to be
sufficient in form and substance, the court is bound to issue an order of suspension as a matter of course,
and there seems to be no ifs and buts about it. Explaining the nature of the preventive suspension, the
Court in the case of Bayot v. Sandiganbayan:
x x x It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted,
the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to
receive during suspension.
In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the
clear and unequivocal mandate of the law, as well as the jurisprudence in which the Court has, more than
once, upheld Sandiganbayans authority to decree the suspension of public officials and employees indicted
before it.
Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be
suspended only in the office where he is alleged to have committed the acts with which he has been
charged. Thus, it has been held that the use of the word office would indicate that it applies to any office
which the officer charged may be holding, and not only the particular office under which he stands accused.
(Bayot v. Sandiganbayan, supra; Segovia v. Sandiganbayan, supra.)
En passant, while the imposition of suspension is not automatic or self-operative as the validity of
the information must be determined in a pre-suspension hearing, there is no hard and fast rule as to the
conduct thereof. It has been said that
x x x No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the
accused should be given a fair and adequate opportunity to challenge the VALIDITY OF THE CRIMINAL
PROCEEDINGS against him, e.g., that he has not been afforded the right of due preliminary investigation;
that the acts for which he stands charged do not constitute a violation of the provisions of Republic Act 3019
or the bribery provisions of the Revised Penal Code which would warrant his mandatory suspension from
office under Section 13 of the Act; or he may present a motion to quash the information on any of the
grounds provided for in Rule 117 of the Rules of Court x x x.
Likewise, he is accorded the right to challenge the propriety of his prosecution on the
ground that the acts for which he is charged do not constitute a violation of Rep. Act 3019, or of the
provisions on bribery of the Revised Penal Code, and the right to present a motion to quash the information
on any other grounds provided in Rule 117 of the Rules of Court.
However, a challenge to the validity of the criminal proceedings on the ground that the acts for which the
accused is charged do not constitute a violation of the provisions of Rep. Act No. 3019, or of the provisions
on bribery of the Revised Penal Code, should be treated only in the same manner as a challenge to the
criminal proceeding by way of a motion to quash on the ground provided in Paragraph (a), Section 2 of Rule
117 of the Rules of Court, i.e., that the facts charged do not constitute an offense. In other words, a
resolution of the challenge to the validity of the criminal proceeding, on such ground, should be limited to an
inquiry whether the facts alleged in the information, if hypothetically admitted, constitute the elements of an
offense punishable under Rep. Act 3019 or the provisions on bribery of the Revised Penal Code. (Luciano v.
Mariano, 40 SCRA 187 [1971]; People v. Albano, 163 SCRA 511, 517-519 [1988])
The law does not require that the guilt of the accused must be established in a pre-suspension
proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to determine (1)
the strength of the evidence of culpability against him, (2) the gravity of the offense charged, or (3)
whether or not his continuance in office could influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence before the court could have a valid basis in decreeing preventive
suspension pending the trial of the case. All it secures to the accused is adequate opportunity to challenge
the validity or regularity of the proceedings against him, such as, that he has not been afforded the right to
due preliminary investigation, that the acts imputed to him do not constitute a specific crime warranting his
mandatory suspension from office under Section 13 of Republic Act No. 3019, or that the information is
subject to quashal on any of the grounds set out in Section 3, Rule 117, of the Revised Rules on Criminal
Procedure.
The pronouncement, upholding the validity of the information filed against petitioner, behooved
Sandiganbayan to discharge its mandated duty to forthwith issue the order of preventive suspension.
The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of
Congress to discipline its own ranks under the Constitution which provides that each
x x x house may determine the rules of its proceedings, punish its Members for disorderly behavior, and,
with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension,
when imposed, shall not exceed sixty days. (Section 16[3], Article VI, 1987 Constitution)
The suspension contemplated in the above constitutional provision is a punitive measure that is
imposed upon determination by the Senate or the House of Representatives, as the case may be, upon an
erring member. Thus, in its resolution in the case of Ceferino Paredes, Jr. v. Sandiganbayan, et al., the
Court affirmed the order of suspension of Congressman Paredes by the Sandiganbayan, despite his
protestations on the encroachment by the court on the prerogatives of Congress. The Court ruled:
x x x Petitioners invocation of Section 16 (3), Article VI of the Constitution which deals with the power of
each House of Congress inter alia to punish its Members for disorderly behavior, and suspend or expel a
Member by a vote of two-thirds of all its Members subject to the qualification that the penalty of
suspension, when imposed, should not exceed sixty days in unavailing, as it appears to be quite distinct
from the suspension spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary,
preventive measure, prescinding from the fact that the latter is not being imposed on petitioner for
misbehavior as a Member of the House of Representatives.
The doctrine of separation of powers by itself may not be deemed to have effectively excluded Members of
Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes each of the
three co-equal and independent, albeit coordinate, branches of the government the Legislative, the
Executive and the Judiciary has exclusive prerogatives and cognizance within its own sphere of influence
and effectively prevents one branch from unduly intruding into the internal affairs of either branch.
Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution,
empowers the Court to act not only in the settlement of actual controversies involving rights which are
legally demandable and enforceable, but also in the determination of whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government. The provision allowing the Court to look into any possible grave abuse
of discretion committed by any government instrumentality has evidently been couched in general terms in
order to make it malleable to judicial interpretation in the light of any emerging milieu. In its normal
concept, the term has been said to imply an arbitrary, despotic, capricious or whimsical exercise of
judgment amounting to lack or excess of jurisdiction. When the question, however, pertains to an affair
internal to either of Congress or the Executive, the Court subscribes to the view that unless an infringement
of any specific Constitutional proscription thereby inheres the Court should not deign substitute its own
judgment over that of any of the other two branches of government. It is an impairment or a clear
disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial
intervention. If any part of the Constitution is not, or ceases to be, responsive to contemporary needs, it is
the people, not the Court, who must promptly react in the manner prescribed by the Charter itself.
Republic Act No. 3019 does not exclude from its coverage the members of Congress and that, therefore, the
Sandiganbayan did not err in thus decreeing the assailed preventive suspension order.
Attention might be called to the fact that Criminal Case No. 16698 has been decided by the First Division of
the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court, nevertheless, deems it
appropriate to render this decision for future guidance on the significant issue raised by
petitioner. (Santiago v. Sandiganbayan, 356 SCRA 636, April 18, 2001, En Banc [Vitug])

May an elective public official be validly appointed or designated to any public office or position
during his tenure?
Ans.: No elective official shall be eligible for appointment or designation in any capacity to any
public office or position during his tenure. (Sec. 7, 1
st
par., Art. IX-B, 1987 Constitution)

May an appointive public official hold any other office or
employment?
Ans.: Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporation. (Sec. 7, 2
nd
par., Art. IX-
B, 1987 Constitution)
May the President, Vice-President, Members of the Cabinet, their deputies or assistants hold any
other office or employment?
Ans.: The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment
during their tenure. (Sec. 13, Art. VII, 1987 Constitution)
Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their
deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general
under Section 7, par. (2), Article IX-B?
Held: The threshold question therefore is: does the prohibition in Section 13, Article VII of the
1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad
exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B which, for easy
reference is quoted anew, thus: Unless otherwise allowed by law or by the primary functions of his position,
no appointive official shall hold any other office or employment in the government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporation or their
subsidiaries.
We rule in the negative.
The practice of designating members of the Cabinet, their deputies and assistants as members of
the governing bodies or boards of various government agencies and instrumentalities, including
government-owned and controlled corporations, became prevalent during the time legislative powers in this
country were exercised by former President Ferdinand E. Marcos pursuant to his martial law
authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned
and controlled corporations created by presidential decrees and other modes of presidential issuances where
Cabinet members, their deputies or assistants were designated to head or sit as members of the board with
the corresponding salaries, emoluments, per diems, allowances and other perquisites of office. X x x
This practice of holding multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment. X x x
Particularly odious and revolting to the peoples sense of propriety and morality in government
service were the data contained therein that Roberto v. Ongpin was a member of the governing boards of
twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-
three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and
Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose
A. Rono of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11)
each; and Lilia Bautista and Teodoro Q. Pena of ten (10) each.
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the
Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the
people that the 1986 Constitutional Commission, convened as it was after the people successfully unseated
former President Marcos, should draft into its proposed Constitution the provisions under consideration
which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental
offices and employment. X x x
But what is indeed significant is the fact that although Section 7, Article IX-B already contains a
blanket prohibition against the holding of multiple offices or employment in the government subsuming both
elective and appointive public officials, the Constitutional Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet,
their deputies and assistants from holding any other office or employment during their tenure, unless
otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional provisions
in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the
President and his official family in so far as holding other offices or employment in the government or
elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other
provisions of the Constitution on the disqualifications of certain public officials or employees from holding
other offices or employment. Under Section 13, Article VI, [N]o Senator or Member of the House of
Representatives may hold any other office or employment in the Government x x x. Under section 5(4),
Article XVI, [N]o member of the armed forces in the active service shall, at any time, be appointed in any
capacity to a civilian position in the Government, including government-owned or controlled corporations or
any of their subsidiaries. Even Section 7(2), Article IX-B, relied upon by respondents provides [U]nless
otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any
other office or employment in the Government.
It is quite notable that in all these provisions on disqualifications to hold other office or
employment, the prohibition pertains to an office or employment in the government and government-owned
or controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII
which states that [T]he President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment
during their tenure. In the latter provision, the disqualification is absolute, not being qualified by the
phrase in the Government. The prohibition imposed on the President and his official family is therefore all-
embracing and covers both public and private office or employment.
Going further into Section 13, Article VII, the second sentence provides: They shall not, during
said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries. These sweeping, all-embracing prohibitions imposed on the President and his official
family, which prohibitions are not similarly imposed on other public officials or employees such as the
Members of Congress, members of the civil service in general and members of the armed forces, are proof
of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to
impose upon said class stricter prohibitions.
Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the primary functions
of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the
general rule applicable to all elective and appointive public officials and employees, while Section 13, Article
VII is meant to be the exception applicable only to the President, the Vice-President, Members of the
Cabinet, their deputies and assistants.
This being the case, the qualifying phrase unless otherwise provided in this Constitution in
Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of
the 1987 Constitution. To construe said qualifying phrase as respondents would have us to do, would
render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to
impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and
assistants with respect to holding other offices or employment in the government during their
tenure. Respondents interpretation that Section 13 of Article VII admits of the exceptions found in Section
7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution
as to when the high-ranking officials of the Executive Branch from the President to assistant Secretary, on
the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary
downwards, on the other, may hold any other office or position in the government during their tenure.
Moreover, respondents reading of the provisions in question would render certain parts of the
Constitution inoperative. This observation applies particularly to the Vice-President who, under Section 13
of Article VII is allowed to hold other office or employment when so authorized by the Constitution, but who
as an elective public official under Sec. 7, par. (1) of Article IX-B is absolutely ineligible for appointment or
designation in any capacity to any public office or position during his tenure. Surely, to say that the phrase
unless otherwise provided in this Constitution found in Section 13, Article VII has reference to Section 7,
par. (1) of Article IX-B would render meaningless the specific provisions of the Constitution authorizing the
Vice-President to become a member of the Cabinet (Sec. 3, Ibid.), and to act as President without
relinquishing the Vice-Presidency where the President shall not have been chosen or fails to qualify (Sec. 7,
Article VII). Such absurd consequence can be avoided only by interpreting the two provisions under
consideration as one, i.e., Section 7, par. (1) of Article IX-B providing the general rule and the other, i.e.,
Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2)
of Article IX-B be construed vis--vis Section 13, Article VII.
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with
respect to holding multiple offices or employment in the government during their tenure, the exception to
this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices and employment. Verily, wherever the language used in the
constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation
(Varney v. Justice, 86 Ky 596; 6 S.W. 457; Hunt v. State, 22 Tex. App. 396, 3 S.W. 233). The phrase
unless otherwise provided in this Constitution must be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member
of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under
Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officiomember of the Judicial
and Bar Council by virtue of Section 8 (1), Article VIII.
It being clear x x x that the 1987 Constitution seeks to prohibit the President, Vice-President,
members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or
employment in the government, except in those cases specified in the Constitution itself and as above
clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by
law and as required by the primary functions of their office, the citation of Cabinet members (then called
Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive
officials should be considered as mere personal opinions which cannot override the constitutions manifest
intent and the peoples understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2),
Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is
unconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or
assistant secretaries may hold in addition to their primary position to not more than two (2) positions in the
government and government corporations, Executive Order No. 284 actually allows them to hold multiple
offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987
Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict
application of the prohibition mandated under Section 13, Article VII on the operations of the Government,
considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason
of their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held
by the executive official concerned without additional compensation as provided by law and as required by
the primary functions of his office do not fall under the definition of any other office within the
contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue
of legislation, including chairmanships or directorships in government-owned or controlled corporations and
their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than
real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full
attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a
department heads ability and expertise, he should be allowed to attend to his duties and responsibilities
without the distraction of other governmental offices or employment. He should be precluded from
dissipating his efforts, attention and energy among too many positions and responsibility, which may result
in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention,
knowledge and expertise, particularly at this stage of our national and economic development, far outweigh
the benefits, if any, that may be gained from a department head spreading himself too thin and taking in
more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the Court
hereby orders respondents x x x to immediately relinquish their other offices or
employment, as herein defined, in the government, including government-owned
or controlled corporations and their subsidiaries. (Civil Liberties Union v.
Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])
Does the prohibition against holding dual or multiple offices or employment under Section 13,
Article VII of the Constitution apply to posts occupied by the Executive officials specified therein
without additional compensation in an ex-officio capacity as provided by law and as required by
the primary functions of said officials office?
Held: The prohibition against holding dual or multiple offices or employment under Section 13,
Article VII of the Constitution must not, however, be construed as applying to posts occupied by the
Executive officials specified therein without additional compensation in an ex-officio capacity as provided by
law and asrequired (As opposed to the term allowed used in Section 7, par. (2), Article IX-B of the
Constitution, which is permissive. Required suggests an imposition, and therefore, obligatory in
nature) by the primary functions of said officials office. The reason is that these posts do not comprise any
other office within the contemplation of the constitutional prohibition but are properly an imposition of
additional duties and functions on said officials. To characterize these posts otherwise would lead to absurd
consequences, among which are: The President of the Philippines cannot chair the National Security Council
reorganized under Executive Order No. 115. Neither can the Vice-President, the Executive Secretary, and
the Secretaries of National Defense, Justice, Labor and Employment and Local Government sit in this
Council, which would then have no reason to exist for lack of a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be prohibited.
Indeed, the framers of our Constitution could not have intended such absurd consequences. A
Constitution, viewed as a continuously operative charter of government, is not to be interpreted as
demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible,
should be avoided.
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering
positions held without additional compensation in ex-officiocapacities as provided by law and as required by
the primary functions of the concerned officials office. The term ex-officio means from office; by virtue of
office. It refers to an authority derived from official character merely, not expressly conferred upon the
individual character, but rather annexed to the official position. Ex officio likewise denotes an act done in
an official character, or as a consequence of office, and without any other appointment or authority than
that conferred by the office. An ex-officio member of a board is one who is a member by virtue of his title
to a certain office, and without further warrant or appointment. To illustrate, by express provision of law,
the Secretary of Transportation and Communications is theex-officio Chairman of the Board of the Philippine
Ports Authority (Sec. 7, E.O. 778), and the Light Rail Transit Authority (Sec. 1, E.O. 210).
The Court had occasion to explain the meaning of an ex-officio position inRafael v. Embroidery
and Apparel Control and Inspection Board, thus: An examination of Section 2 of the questioned statute
(R.A. 3137) reveals that for the chairman and members of the Board to qualify they need only be
designated by the respective department heads. With the exception of the representative from the private
sector, they sit ex-officio. I order to be designated they must already be holding positions in the offices
mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of
Customs, cannot, under the act, be designated a representative from that office. The same is true with
respect to the representatives from the other offices. No new appointments are necessary. This is as it
should be, because the representatives so designated merely perform duties in the Board in addition to
those already performed under their original appointments.
The term primary used to describe functions refers to the order of importance and thus
means chief or principal function. The term is not restricted to the singular but may refer to the plural (33A
Words and Phrases, p. 210). The additional duties must not only be closely related to, but must be required
by the officials primary functions. Examples of designations to positions by virtue of ones primary
functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the
Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority and
the Civil Aeronautics Board.
If the functions to be performed are merely incidental, remotely related, inconsistent,
incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions would
fall under the purview of any other office prohibited by the Constitution. An example would be the Press
Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming
Corporation. The same rule applies to such positions which confer on the cabinet official management
functions and/or monetary compensation, such as but not limited to chairmanships or directorships in
government-owned or controlled corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet Members,
their deputies or assistants which are not inconsistent with those already prescribed by their offices or
appointments by virtue of their special knowledge, expertise and skill in their respective executive offices is
a practice long-recognized in many jurisdictions. It is a practice justified by the demands of efficiency,
policy direction, continuity and coordination among the different offices in the Executive Branch in the
discharge of its multifarious tasks of executing and implementing laws affecting national interest and general
welfare and delivering basic services to the people. It is consistent with the power vested on the President
and his alter egos, the Cabinet members, to have control of all the executive departments, bureaus and
offices and to ensure that the laws are faithfully executed. Without these additional duties and functions
being assigned to the President and his official family to sit in the governing bodies or boards of
governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as required by
their primary functions, they would be deprived of the means for control and supervision, thereby resulting
in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not
transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional
duties or functions must be required by the primary functions of the official concerned, who is to perform
the same in an ex-officio capacity as provided by law, without receiving any additional compensation
therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his services in the said
position. The reason is that these services are already paid for and covered by the compensation attached
to his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the
Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the
primary function of his principal office in defining policy in monetary and banking matters, which come under
the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra
compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some other
such euphemism. By whatever name it is designated, such additional compensation is prohibited by the
Constitution. (Civil Liberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc
[Fernan, CJ])
Should members of the Cabinet appointed to other positions in the government pursuant to
Executive Order No. 284 which later was declared unconstitutional by the SC for being violative
of Section 13, Article VII of the Constitution be made to reimburse the government for whatever
pay and emoluments they received from holding such other positions?
Held: During their tenure in the questioned positions, respondents may be considered de
facto officers and as such entitled to emoluments for actual services rendered. It has been held that in
cases where there is no de jure officer, a de factoofficer, 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, and
may in an appropriate action recover the salary, fees and other compensations attached to the office. This
doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit
by the services of an officer de facto and then be freed from all liability to pay any one for such
services. Any per diem, allowances or other emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore be retained by them. (Civil Liberties Union v.
Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])

May a Senator or Congressman hold any other office or
employment?
Ans.: No Senator or Member of the House of Representatives may hold any other office or
employment in the government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his
seat. Neither 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. (Sec. 13, Art. VI, 1987 Constitution).

What are the situations covered by the law on nepotism?
Held: Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a
relative within the third civil degree of consanguinity or affinity of any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office; and
d) person exercising immediate supervision over the appointee.
Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the
appointing or recommending authority is. To constitute a violation of the law, it suffices that an
appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or
affinity of the chief of the bureau or office, or the person exercising immediate supervision over the
appointee. (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

What are the exemptions from the operation of the rules on nepotism?
Ans.: The following are exempted from the operation of the rules on nepotism: (a) persons employed in a
confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines.
The rules on nepotism shall likewise not be applicable to the case of a member of any family
who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in
the same office or bureau, in which event the employment or retention therein of both husband and wife
may be allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)

What is the doctrine of forgiveness or condonation? Does it apply to pending criminal cases?
Held: 1. A public official cannot be removed for administrative misconduct committed during a prior term,
since his re-election to office operates as a condonation of the officers previous misconduct to the extent of
cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal
cases pending against petitioner. (Aguinaldo v. Santos, 212 SCRA 768, 773 [1992])
2. A reelected local official may not be held administratively accountable for misconduct committed during
his prior term of office. The rationale for this holding is that when the electorate put him back into office, it
is presumed that it did so with full knowledge of his life and character, including his past misconduct. If,
armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past
misdeeds. (Mayor Alvin B. Garcia v. Hon. Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999
[Quisumbing])

What is the Doctrine of Condonation? Illustrative case.
Held: Petitioner contends that, per our ruling in Aguinaldo v. Santos, his reelection has rendered the
administrative case filed against him moot and academic. This is because his reelection operates as a
condonation by the electorate of the misconduct committed by an elective official during his previous
term. Petitioner further cites the ruling of this Court in Pascual v. Hon. Provincial Board of Nueva Ecija,
citing Conant v. Brogan, that
x x x When the people have elected a man to office, it must be assumed that they did this with knowledge
of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty
of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the
people.
Respondents, on the other hand, contend that while the contract in question was signed during the previous
term of petitioner, it was to commence or be effective only on September 1998 or during his current
term. It is the respondents submission that petitioner went beyond the protective confines of
jurisprudence when he agreed to extend his act to his current term of office. Aguinaldo cannot apply,
according to respondents, because what is involved in this case is a misconduct committed during a previous
term but to be effective during the current term.
Respondents maintain that,
x x x petitioner performed two acts with respect to the contract: he provided for a suspensive period
making the supply contract commence or be effective during his succeeding or current term and during his
current term of office he acceded to the suspensive period making the contract effective during his current
term by causing the implementation of the contract.
Hence, petitioner cannot take refuge in the fact of his reelection, according to respondents.
Further, respondents point out that the contract in question was signed just four days before the
date of the 1998 election and so it could not be presumed that when the people of Cebu City voted
petitioner to office, they did so with full knowledge of petitioners character.
On this point, petitioner responds that knowledge of an officials previous acts is presumed and
the court need not inquire whether, in reelecting him, the electorate was actually aware of his prior
misdeeds.
Petitioner cites our ruling in Salalima v. Guingona, wherein we absolved Albay governor Ramon
R. Salalima of his administrative liability as regards a retainer agreement he signed in favor of a law firm
during his previous term, although disbursements of public funds to cover payments under the agreement
were still being done during his subsequent term. Petitioner argues that, following Salalima, the doctrine
of Aguinaldo applies even where the effects of the acts complained of are still evident during the subsequent
term of the reelected official. The implementation of the contract is a mere incident of its
execution. Besides, according to petitioner, the sole act for which he has been administratively charged is
the signing of the contract with F.E. Zuellig. The charge, in his view, excludes the contracts execution or
implementation, or any act subsequent to the perfection of the contract.
In Salalima, we recall that the Solicitor General maintained that Aguinaldodid not apply to that
case because the administrative case against Governor Rodolfo Aguinaldo of Cagayan was already pending
when he filed his certificate of candidacy for his reelection bid. Nevertheless, in Salalima, the Court applied
the Aguinaldodoctrine, even if the administrative case against Governor Salalima was filed after his
reelection.
We now come to the concluding inquiry. Granting that the Office of the Ombudsman may
investigate, for purposes provided for by law, the acts of petitioner committed prior to his present term of
office; and that it may preventively suspend him for a reasonable period, can that office hold
him administratively liable for said acts?
In a number of cases, we have repeatedly held that a reelected local official may not be held
administratively accountable for misconduct committed during his prior term of office. The rationale for this
holding is that when the electorate put him back into office, it is resumed that it did so with full knowledge
of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him,
then such reelection is considered a condonation of his past misdeeds.
However, in the present case, respondents point out that the contract entered into by petitioner
with F.E. Zuellig was signed just four days before the date of the elections. It was not made an issue during
the election, and so the electorate could not be said to have voted for petitioner with knowledge of this
particular aspect of his life and character.
For his part, petitioner contends that the only conclusive determining factor as regards the
peoples thinking on the matter is an election. On this point we agree with petitioner. That the people voted
for an official with knowledge of his character is presumed, precisely to eliminate the need to determine, in
factual terms, the extent of this knowledge. Such an undertaking will obviously be impossible. Our rulings
on the matter do not distinguish the precise timing or period when the misconduct was committed, reckoned
from the date of the officials reelection, except that it must be prior to said date.
As held in Salalima,
The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is still a good
law. Such a rule is not only founded on the theory that an officials reelection expresses the sovereign will
of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline
which was committed during his previous term. We may add that sound policy dictates it. To rule otherwise
would open the floodgates to exacerbating endless partisan contests between the reelected official and his
political enemies, who may not stop to hound the former during his new term with administrative cases for
acts alleged to have been committed during his previous term. His second term may thus be devoted to
defending himself in the said cases to the detriment of public service x x x.
The above ruling in Salalima applies to this case. Petitioner cannot anymore be heldadministratively liable
for an act done during his previous term, that is, his signing of the contract with F.E. Zuellig.
The assailed retainer agreement in Salalima was executed sometime in
1990. Governor Salalima was reelected in 1992 and payments for the retainer continued to be made during
his succeeding term. This situation is no different from the one in the present case, wherein deliveries of
the asphalt under the contract with F.E. Zuellig and the payments therefor were supposed to have
commenced on September 1998, during petitioners second term.
However, respondents argue that the contract, although signed on May 7, 1998, during
petitioners prior term, is to be made effective only during his present term.
We fail to see any difference to justify a valid distinction in the result. The agreement between
petitioner (representing Cebu City) and F.E. Zuellig was perfected on the date the contract was signed,
during petitioners prior term. At that moment, petitioner already acceded to the terms of the contract,
including stipulations now alleged to be prejudicial to the city government. Thus, any culpability petitioner
may have in signing the contract already became extant on the day the contract was signed. It hardly
matters that the deliveries under the contract are supposed to have been made months later.
While petitioner can no longer be held administratively liable for signing the contract with F.E.
Zuellig, however, this should not prejudice the filing of any case other than administrative against
petitioner. Our ruling in this case, may not be taken to mean the total exoneration of petitioner for
whatever wrongdoing, if any, might have been committed in signing the subject contract. The ruling now is
limited to the question of whether or not he may be held administratively liable therefor, and it is our
considered view that he may not. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2
nd
Div.
[Quisumbing])

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and
reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting as
a collegial body, can authorize such reappointment. Moreover, petitioner maintains that a
reassignment without her consent amounts to removal from office without due process and
therefore illegal.
Held: Petitioners posturing will hold water if Benipayo does not possess any color of title to the
office of Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC
Chairman, and consequently he has full authority to exercise all the powers of that office for so long as
his ad interimappointment remains effective. X x x. The Chairman, as the Chief Executive of the COMELEC,
is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with
the Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the
approval of the COMELEC en banc.
Petitioners appointment papers x x x indisputably show that she held her Director IV position in
the EID only in an acting or temporary capacity. Petitioner is not a Career Executive Service (CES), and
neither does she hold Career Executive Service Eligibility, which are necessary qualifications for holding the
position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil
Service Commission. Obviously, petitioner does not enjoy security of tenure as Director IV. X x x
Having been appointed merely in a temporary or acting capacity, and not possessed of the
necessary qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her
reassignment was contrary to the Civil Service Law. X x x
Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under
Section 261 (h) of the Omnibus Election Code x x x.
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en bancto effect transfers or
reassignments of COMELEC personnel during the election period. Moreover, petitioner insists that the
COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election
period.
Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated
November 6, 2000, exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. X x x
The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or
reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel
and not to head office personnel like the petitioner. Under the Revised Administrative Code, the COMELEC
Chairman is thesole officer specifically vested with the power to transfer or reassign COMELEC
personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC
personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself
this power because that will mean amending the Revised Administrative Code, an act the COMELEC en
banc cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel
should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to
require such concurrence will render the resolution meaningless since the COMELEC en banc will have to
approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No.
3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel,
without need of securing a second approval from the COMELEC en banc to actually implement such transfer
or reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC
personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in
COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the
election period. Thus, Benipayos order reassigning petitioner from the EID to the Law Department does not
violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayos order designating
Cinco Officer-in-Charge of the EID is legally unassailable. (Matibag v. Benipayo, 380 SCRA 49, April 2,
2002, En Banc [Carpio])

May the appointment of a person assuming a position in the civil service under a completed
appointment be validly recalled or revoked?
Held: It has been held that upon the issuance of an appointment and the appointees assumption of the
position in the civil service, he acquires a legal right which cannot be taken away either by revocation of the
appointment or by removal except for cause and with previous notice and hearing. Moreover, it is well-
settled that the person assuming a position in the civil service under a completed appointment acquires a
legal, not just an equitable, right to the position. This right is protected not only by statute, but by the
Constitution as well, which right cannot be taken away by either revocation of the appointment, or by
removal, unless there is valid cause to do so, provided that there is previous notice and hearing.
Petitioner admits that his very first official act upon assuming the position of town mayor was to issue Office
Order No. 95-01 which recalled the appointments of the private respondents. There was no previous notice,
much less a hearing accorded to the latter. Clearly, it was petitioner who acted in undue haste to remove
the private respondents without regard for the simple requirements of due process of law. While he argues
that the appointing power has the sole authority to revoke said appointments, there is no debate that he
does not have blanket authority to do so. Neither can he question the CSCs jurisdiction to affirm or revoke
the recall.
Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code specifically
provides that an appointment accepted by the appointee cannot be withdrawn or revoked by the appointing
authority and shall remain in force and in effect until disapproved by the Commission. Thus, it is the CSC
that is authorized to recall an appointment initially approved, but only when such appointment and approval
are proven to be in disregard of applicable provisions of the civil service law and regulations.
Moreover, Section 10 of the same rule provides:
Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect immediately
upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position,
he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the
Commission. The appointment shall remain effective until disapproved by the Commission. In no case shall
an appointment take effect earlier than the date of its issuance.
Section 20 of Rule VI also provides:
Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the
following grounds:
Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan;
Failure to pass through the agencys Selection/Promotion Board;
Violation of the existing collective agreement between management and employees relative to promotion; or
Violation of other existing civil service law, rules and regulations.
Accordingly, the appointments of the private respondents may only be recalled on the above-cited
grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were
midnight appointments. The CSC correctly ruled, however, that the constitutional prohibition on so-called
midnight appointments, specifically those made within two (2) months immediately prior to the next
presidential elections, applies only to the President or Acting President. (De Rama v. Court of Appeals, 353
SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago])

Is a government employee who has been ordered arrested and detained for a non-bailable
offense and for which he was suspended for his inability to report for work until the termination
of his case, still required to file a formal application for leave of absence to ensure his
reinstatement upon his acquittal and thus protect his security of tenure? Concomitantly, will his
prolonged absence from office for more than one (1) year automatically justify his being dropped
from the rolls without prior notice despite his being allegedly placed under suspension by his
employer until the termination of his case, which finally resulted in his acquittal for lack of
evidence?
Held: EUSEBIA R. GALZOTE was employed as a lowly clerk in the service of the City Government of Makati
City. With her meager income she was the lone provider for her children. But her simple life was disrupted
abruptly when she was arrested without warrant and detained for more than three (3) years for a crime she
did not commit. Throughout her ordeal she trusted the city government that the suspension imposed on her
was only until the final disposition of her case. As she drew near her vindication she never did expect the
worst to come to her. On the third year of her detention the city government lifted her suspension, dropped
her from the rolls without prior notice and without her knowledge, much less gave her an opportunity to
forthwith correct the omission of an application for leave of absence belatedly laid on her.
Upon her acquittal for lack of evidence and her release from detention she was denied
reinstatement to her position. She was forced to seek recourse in the Civil Service Commission which
ordered her immediate reinstatement with back wages from 19 October 1994, the date when she presented
herself for reassumption of duties but was turned back by the city government, up to the time of her actual
reinstatement.
Plainly, the case of petitioner City Government of Makati City revolves around a rotunda of doubt,
a dilemma concerning the legal status and implications of its suspension of private respondent Eusebia R.
Galzote and the automatic leave of absence espoused by the Civil Service Commission. Against this concern
is the punctilious adherence to technicality, the requirement that private respondent should have filed an
application for leave of absence in proper form. The instant case is therefore a dispute between, at its
worst, private respondents substantial compliance with the standing rules, and the City Governments
insistence that the lowly clerk should have still gone through the formalities of applying for leave despite her
detention, of which petitioner had actual notice, and the suspension order couched in simple language that
she was being suspended until the final disposition of her criminal case.
The meaning of suspension until the final disposition of her case is that should her case be
dismissed she should be reinstated to her position with payment of back wages. She did not have to apply
for leave of absence since she was already suspended by her employer until her case would be
terminated. We have done justice to the workingman in the past; today we will do no less by resolving all
doubts in favor of the humble employee in faithful obeisance to the constitutional mandate to afford full
protection to labor (Const., Art. XIII, Sec. 3, par. 1; Art. II, Sec. 18)
As may be gleaned from the pleadings of the parties, the issues are: (1) whether private
respondent Eusebia R. Galzote may be considered absent without leave; (b) whether due process had been
observed before she was dropped from the rolls; and, (3) whether she may be deemed to have abandoned
her position, hence, not entitled to reinstatement with back salaries for not having filed a formal application
for leave. Encapsulated, the issues may be reduced to whether private respondent may be considered
absent without leave or whether she abandoned her job as to justify being dropped from the service for not
filing a formal application for leave.
Petitioner would have private respondent declared on AWOL and faults her for failing to file an
application for leave of absence under Secs. 20 (Now Sec. 52 of Rule XVI, Leave of Absence, of Res. No. 91-
1631 dated 27 December 1991, as amended by CSC MC No. 41, s. 1998) and 35 (Now Sec. 63 of Rule XVI,
Leave of Absence, of Res. No. 91-1631 dated 27 December 1991, as amended by CSC MC Nos. 41, s. 1998
and 14, s. 1999) of the CSC Rules and rejects the CSCs ruling of an automatic leave of absence for the
period of her detention since the current Civil Service Law and Rules do not contain any specific provision
on automatic leave of absence.
The Court believes that private respondent cannot be faulted for failing to file prior to her
detention an application for leave and obtain approval thereof. The records clearly show that she had been
advised three (3) days after her arrest, or on 9 September 1991, that petitioner City government of Makati
City had placed her under suspension until the final disposition of her criminal case. This act of petitioner
indubitably recognized private respondents predicament and thus allowed her to forego reporting for work
during the pendency of her criminal case without the needless exercise of strict formalities. At the very
least, this official communication should be taken as an equivalent of a prior approved leave of absence
since it was her employer itself which placed her under suspension and thus excused her from further
formalities in applying for such leave. Moreover, the arrangement bound the City Government to allow
private respondent to return to her work after the termination of her case, i.e., if acquitted of the criminal
charge. This pledge sufficiently served as legitimate reason for her to altogether dispense with the formal
application for leave; there was no reason to, as in fact it was not required, since she was for all practical
purposes incapacitated or disabled to do so.
Indeed, private respondent did not have the least intention to go on AWOL from her post as Clerk III of
petitioner, for AWOL means the employee leaving or abandoning his post without justifiable reason and
without notifying his employer. In the instant case, private respondent had a valid reason for failing to
report for work as she was detained without bail. Hence, right after her release from detention, and when
finally able to do so, she presented herself to the Municipal Personnel Officer of petitioner City Government
to report for work. Certainly, had she been told that it was still necessary for her to file an application for
leave despite the 9 September 1991 assurance from petitioner, private respondent would have lost no time
in filing such piece of document. But the situation momentarily suspending her from work persisted:
petitioner City Government did not alter the modus vivendi with private respondent and lulled her into
believing that its commitment that her suspension was only until the termination of her case was true and
reliable. Under the circumstances private respondent was in, prudence would have dictated petitioner, more
particularly the incumbent city executive, in patria potestas, to advise her that it was still necessary
although indeed unnecessary and a useless ceremony to file such application despite the suspension
order, before depriving her of her legitimate right to return to her position. Patria potestas in piatate debet,
non in atrocitate, consistere. Paternal power should consist or be exercised in affection, not in atrocity.
It is clear from the records that private respondent Galzote was arrested and detained without a warrant on
6 September 1991 for which reason she and her co-accused were subjected immediately to inquest
proceedings. This fact is evident from the instant petition itself and its attachments x x x. Hence, her
ordeal in jail began on 6 September 1991 and ended only after her acquittal, thus leaving her no time to
attend to the formality of filing a leave of absence.
But petitioner City Government would unceremoniously set aside its 9 September 1991
suspension order claiming that it was superseded three (3) years later by a memorandum dropping her from
the rolls effective 21 January 1993 for absence for more than one (1) year without official leave. Hence,
the suspension order was void since there was no pending administrative charge against private respondent
so that she was not excused from filing an application for leave.
We do not agree. In placing private respondent under suspension until the final disposition of
her criminal case, the Municipal Personnel Officer acted with competence, so he presumably knew that his
order of suspension was not akin to either suspension as penalty or preventive suspension since there was
no administrative case against private respondent. As competence on the part of the MPO is presumed, any
error on his part should not prejudice private respondent, and that what he had in mind was to consider her
as being on leave of absence without pay and their employer-employee relationship being merely
suspended, not severed, in the meantime. This construction of the order of suspension is actually more
consistent with logic as well as fairness and kindness to its author, the MPO. Significantly, the idea of
a suspended employer-employee relationship is widely accepted in labor law to account for situations
wherein laborers would have no work to perform for causes not attributable to them. We find no basis for
denying the application of this principle to the instant case which also involves a lowly worker in the public
service.
Moreover, we certainly cannot nullify the City Governments order of suspension, as we have no
reason to do so, much less retroactively apply such nullification to deprive private respondent of a
compelling and valid reason for not filing the leave application. For as we have held, a void act though in
law a mere scrap of paper nonetheless confers legitimacy upon past acts or omissions done in reliance
thereof. Consequently, the existence of a statute or executive order prior to its being adjudged void is an
operative fact to which legal consequences are attached. It would indeed be ghastly unfair to prevent
private respondent from relying upon the order of suspension in lieu of a formal leave application.
At any rate, statements are, or should be, construed against the one responsible for the
confusion; otherwise stated, petitioner must assume full responsibility for the consequences of its own act,
hence, he should be made to answer for the mix-up of private respondent as regards the leave
application. At the very least, it should be considered estopped from claiming that its order of suspension is
void or that it did not excuse private respondent from filing an application for leave on account of her
incarceration. It is a fact that she relied upon this order, issued barely three (3) days from the date of her
arrest, and assumed that when the criminal case would be settled she could return to work without need of
any prior act. x x x
The holding of the Civil Service Commission that private respondent was on automaticleave of absence
during the period of her detention must be sustained. The CSC is the constitutionally mandated central
personnel agency of the Government tasked to establish a career service and adopt measures to promote
morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the civil service (Const., Art.
IX-B, Sec. 3) and strengthen the merit and rewards system, integrate all human resources development
programs for all levels and ranks, and institutionalize a management climate conducive to public
accountability. Besides, the Administrative Code of 1987 further empowers the CSC to prescribe, amend,
and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other
pertinent laws, and for matters concerning leaves of absence, the Code specifically vests the CSC to ordain

Sec. 60. Leave of absence. Officers and employees in the Civil Service shall be entitled to leave of
absence, with or without pay, as may be provided by law and the rules and regulations of the Civil Service
Commission in the interest of the service.
Pursuant thereto the CSC promulgated Resolution No. 91-1631 dated 27 December 1991
entitled Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws which
it has several times amended through memorandum circulars. It devotes Rule XVI to leaves of
absence. Petitioner City Government relies upon Secs. 20 and 35 to debunk the CSC ruling of
an automaticleave of absence. Significantly, these provisions have been amended so that Sec. 20 of
the Civil Service Rules is now Sec. 52 of Rule XVI, on Leave of Absence, ofResolution No. 91-1631 dated 27
December 1991 as amended by CSC MC No. 41, s. 1998, and Sec. 35 is now Sec. 63 as amended by CSC
MC Nos. 41, s. 1998 and 14, s. 1999.
As a general rule, Secs. 20 and 52, as well as Secs. 35 and 63, require an approved leave of
absence to avoid being an AWOL. However, these provisions cannot be interpreted as exclusive and
referring only to one mode of securing the approval of a leave of absence which would require an employee
to apply for it, formalities and all, before exceeding thirty (30) days of absence in order to avoid from being
dropped from the rolls. There are, after all, other means of seeking and granting an approved leave of
absence, one of which is the CSC recognized rule ofautomatic leave of absence under specified
circumstances. x x x
As properly noted, the CSC was only interpreting its own rules on leave of absence and not a
statutory provision (As a matter of fact, Sec. 60 of the Administrative Code does not provide for any rule on
leave of absence other than that civil servants are entitled to leave of absence) in coming up with this
uniform rule. Undoubtedly, the CSC like any other agency has the power to interpret its own rules and any
phrase contained in them with its interpretation significantly becoming part of the rules themselves. x x x
Under RA 6656 (An Act to Protect the Security of Tenure of Civil Service Officers and Employees
in the Implementation of Government Reorganization) and RA 7160 (The Local Government Code of
1991), civil servants who are found illegally dismissed or retrenched are entitled to full pay for the period of
their separation.
Our final point. An efficient and honest bureaucracy is never inconsistent with the emphasis on
and the recognition of the basic rights and privileges of our civil servants or, for that matter, the
constitutional mandates of the Civil Service Commission. In fact only from an enlightened corps of
government workers and an effective CSC grows the professionalization of the bureaucracy. Indeed the
government cannot be left in the lurch; but neither could we decree that government personnel be
separated from their jobs indiscriminately regardless of fault. The fine line between these concerns may be
difficult to clearly draw but if we only exerted extra effort to rebel against the allure of legal over-
simplification, justice would have been done where it is truly due. (City Government of Makati City v.
Civil Service Commission, 376 SCRA 248, Feb. 6, 2002, En Banc [Bellosillo])

What is abandonment of office? What are its essential elements?
Held: Abandonment of an office is the voluntary relinquishment of an office by the holder, with the
intention of terminating his possession and control thereof. In order to constitute abandonment of an office,
it must be total and under such circumstances as clearly to indicate an absolute relinquishment. There must
be a complete abandonment of duties of such continuance that the law will infer a
relinquishment. Abandonment of duties is a voluntary act; it springs from and is accompanied by
deliberation and freedom of choice. There are, therefore, two essential elements of abandonment: first, an
intention to abandon and second, an overt or external act by which the intention is carried into effect.
Generally speaking, a person holding a public office may abandon such office by non-user or
acquiescence. Non-user refers to a neglect to use a right or privilege or to exercise an office. However,
non-performance of the duties of an office does not constitute abandonment where such non-performance
results from temporary disability or from involuntary failure to perform. Abandonment may also result from
an acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal,
an unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute
an abandonment of the office. Where, while desiring and intending to hold the office, and with no willful
desire or intention to abandon it, the public officer vacates it in deference to the requirements of a statute
which is afterwards declared unconstitutional, such a surrender will not be deemed an abandonment and the
officer may recover the effect. (Canonizado v. Aguirre, 351 SCRA 659, 665-668, Feb. 15, 2001, En
Banc [Gonzaga-Reyes])

By accepting another position in the government during the pendency of a case brought
precisely to assail the constitutionality of his removal may a person be deemed to have
abandoned his claim for reinstatement?
Held: Although petitioners do not deny the appointment of Canonizado as Inspector General, they maintain
that Canonizados initiation and tenacious pursuance of the present case would belie any intention to
abandon his former office. Petitioners assert that Canonizado should not be faulted for seeking gainful
employment during the pendency of this case. Furthermore, petitioners point out that from the time
Canonizado assumed office as Inspector General he never received the salary pertaining to such position x x
x.
By accepting the position of Inspector General during the pendency of the present case brought
precisely to assail the constitutionality of his removal from the NAPOLCOM Canonizado cannot be deemed
to have abandoned his claim for reinstatement to the latter position. First of all, Canonizado did not
voluntarily leave his post as Commissioner, but was compelled to do so on the strength of Section 8 of RA
8551 .
In our decision of 25 January 2000, we struck down the abovequoted provision for being violative
of petitioners constitutionally guaranteed right to security of tenure. Thus, Canonizado harbored no willful
desire or intention to abandon his official duties. In fact, Canonizado, together with petitioners x x x lost no
time disputing what they perceived to be an illegal removal; a few weeks after RA 8551 took effect x x x
petitioners instituted the current action x x x assailing the constitutionality of certain provisions of said
law. The removal of petitioners from their positions by virtue of a constitutionally infirm act necessarily
negates a finding of voluntary relinquishment. (Canonizado v. Aguirre, 351 SCRA 659, 665-668, Feb.
15, 2001, En Banc [Gonzaga-Reyes])

Distinguish term of office from tenure of the incumbent.
Held: In the law of public officers, there is a settled distinction between term and tenure. [T]he term
of an office must be distinguished from the tenure of the incumbent. The term means the time during which
the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall
succeed one another. The tenure represents the term during which the incumbent actually holds the
office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for
reasons within or beyond the power of the incumbent. (Thelma P. Gaminde v. COA, G.R. No. 140335,
Dec. 13, 2000, En Banc [Pardo])

Discuss the operation of the rotational plan insofar as the term of office of the Chairman and
Members of the Constitutional Commissions is concerned.
Held: In Republic v. Imperial, we said that the operation of the rotational plan requires two conditions,
both indispensable to its workability: (1) that the terms of the first three (3) Commissioners should start on
a common date, and (2) that any vacancy due to death, resignation or disability before the expiration of the
term should only be filled only for the unexpired balance of the term.
Consequently, the terms of the first Chairmen and Commissioners of the Constitutional Commissions under
the 1987 Constitution must start on a common date, irrespective of the variations in the dates of
appointments and qualifications of the appointees, in order that the expiration of the first terms of seven,
five and three years should lead to the regular recurrence of the two-year interval between the expiration of
the terms.
Applying the foregoing conditions x x x, we rule that the appropriate starting point of the terms of office of
the first appointees to the Constitutional Commissions under the 1987 Constitution must be on February 2,
1987, the date of the adoption of the 1987 Constitution. In case of a belated appointment or qualification,
the interval between the start of the term and the actual qualification of the appointee must be counted
against the latter. (Thelma P. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo])

What is the hold-over doctrine? What is its purpose?
Held: 1. The concept of holdover when applied to a public officer implies that the office has a fixed term
and the incumbent is holding onto the succeeding term. It is usually provided by law that officers elected or
appointed for a fixed term shall remain in office not only for that term but until their successors have been
elected and qualified. Where this provision is found, the office does not become vacant upon the expiration
of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry
over until his successor is elected and qualified, even though it be beyond the term fixed by law.
Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to
stay in office until his successor is appointed or chosen and has qualified. The legislative intent of not
allowing holdover must be clearly expressed or at least implied in the legislative enactment, otherwise it is
reasonable to assume that the law-making body favors the same.
Indeed, the law abhors a vacuum in public offices, and courts generally indulge in the strong presumption
against a legislative intent to create, by statute, a condition which may result in an executive or
administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully
authorized to exercise its functions. This is founded on obvious considerations of public policy, for the
principle of holdover is specifically intended to prevent public convenience from suffering because of a
vacancy and to avoid a hiatus in the performance of government functions. (Lecaroz v. Sandiganbayan,
305 SCRA 397, March 25, 1999, 2
nd
Div. [Bellosillo])
2. The rule is settled that unless holding over be expressly or impliedly prohibited, the incumbent may
continue to hold over until someone else is elected and qualified to assume the office. This rule is
demanded by the most obvious requirements of public policy, for without it there must frequently be cases
where, from a failure to elect or a refusal or neglect to qualify, the office would be vacant and the public
service entirely suspended. Otherwise stated, the purpose is to prevent a hiatus in the government
pending the time when the successor may be chosen and inducted into office. (Galarosa v. Valencia, 227
SCRA 728, Nov. 11, 1993, En Banc [Davide, Jr.])

What is resignation? What are the requisites of a valid resignation?
Held: 1. It is the act of giving up or the act of an officer by which he declines his office and renounces the
further right to use it. It is an expression of the incumbent in some form, express or implied, of the
intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful
authority. To constitute a complete and operative resignation from public office, there must be: (a) an
intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper
authority. The last one is required by reason of Article 238 of the Revised Penal Code. (Sangguniang
Bayan of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998)
2. Resignation x x x is a factual question and its elements are beyond quibble: there must be an intent to
resign and the intent must be coupled by acts of relinquishment. The validity of a resignation is not
governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It
can be implied. As long as the resignation is clear, it must be given legal effect. (Estrada v. Desierto,
G.R. Nos. 146710-15, March 2, 2001, en Banc [Puno])

What is abandonment of an office? What are its requisites? How is it distinguished from
resignation?
Held: Abandonment of an office has been defined as the voluntary relinquishment of an office by the
holder, with the intention of terminating his possession and control thereof. Indeed, abandonment of office
is a species of resignation; while resignation in general is a formal relinquishment, abandonment is a
voluntary relinquishment through nonuser.
Abandonment springs from and is accompanied by deliberation and freedom of choice. Its concomitant
effect is that the former holder of an office can no longer legally repossess it even by forcible reoccupancy.
Clear intention to abandon should be manifested by the officer concerned. Such intention may be express
or inferred from his own conduct. Thus, the failure to perform the duties pertaining to the office must be
with the officers actual or imputed intention to abandon and relinquish the office. Abandonment of an office
is not wholly a matter of intention; it results from a complete abandonment of duties of such continuance
that the law will infer a relinquishment. Therefore, there are two essential elements of
abandonment; first, an intention to abandon and, second, an overt or external act by which the intention
is carried into effect. (Sangguniang Bayan of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan.
16, 1998)

What is the effect of acceptance of an incompatible office to a claim for reinstatement?
Held: The next issue is whether Canonizados appointment to and acceptance of the position of Inspector
General should result in an abandonment of his claim for reinstatement to the NAPOLCOM. It is a well-
settled rule that he who, while occupying one office, accepts another incompatible with the first, ipso facto
vacates the first office and his title is thereby terminated without any other act or proceeding. Public policy
considerations dictate against allowing the same individual to perform inconsistent and incompatible
duties. The incompatibility contemplated is not the mere physical impossibility of one persons performing
the duties of the two offices due to a lack of time or the inability to be in two places at the same moment,
but that which proceeds from the nature and relations of the two positions to each other as to give rise to
contrariety and antagonism should one person attempt to faithfully and impartially discharge the duties of
one toward the incumbent of the other.
There is no question that the positions of NAPOLCOM Commissioner and Inspector General of the
IAS are incompatible with each other. As pointed out by respondents, RA 8551 prohibits any personnel of
the IAS from sitting in a committee charged with the task of deliberating on the appointment, promotion, or
assignment of any PNP personnel, whereas the NAPOLCOM has the power of control and supervision over
the PNP. However, the rule on incompatibility of duties will not apply to the case at bar because at no point
did Canonizado discharge the functions of the two offices simultaneously. Canonizado was forced out of his
first office by the enactment of Section 8 of RA 8551. Thus, when Canonizado was appointed as Inspector
General x x x he had ceased to discharge his official functions as NAPOLCOM Commissioner. x x x Thus, to
reiterate, the incompatibility of duties rule never had a chance to come into play for petitioner never
occupied the two positions, of Commissioner and Inspector General, nor discharged their respective
functions, concurrently.
As in the Tan v. Gimenez and Gonzales v. Hernandez cases, Canonizado was compelled to leave his position
as Commissioner, not by an erroneous decision, but by an unconstitutional provision of law. Canonizado,
like the petitioners in the above mentioned cases, held a second office during the period that his appeal was
pending. As stated in the Comment filed by petitioners, Canonizado was impelled to accept this subsequent
position by a desire to continue serving the country, in whatever capacity. Surely, this selfless and noble
aspiration deserves to be placed on at least equal footing with the worthy goal of providing for oneself and
ones family, either of which are sufficient to justify Canonizados acceptance of the position of Inspector
General. A Contrary ruling would deprive petitioner of his right to live, which contemplates not only a right
to earn a living, as held in previous cases, but also a right to lead a useful and productive life. Furthermore,
prohibiting Canonizado from accepting a second position during the pendency of his petition would be to
unjustly compel him to bear the consequences of an unconstitutional act which under no circumstance can
be attributed to him. However, before Canonizado can re-assume his post as Commissioner, he should first
resign as Inspector General of the IAS-PNP.(Canonizado v. Aguirre, 351 SCRA 659, Feb. 15, 2001, En
Banc [Gonzaga-Reyes])

When may unconsented transfers be considered anathema to security of tenure?
Held: As held in Sta. Maria v. Lopez:
x x x the rule that outlaws unconsented transfers as anathema to security of tenure applies only to an
officer who is appointed not merely assigned to a particular station. Such a rule does not pr[o]scribe a
transfer carried out under a specific statute that empowers the head of an agency to periodically reassign
the employees and officers in order to improve the service of the agency. x x x
The guarantee of security of tenure under the Constitution is not a guarantee of perpetual employment. It
only means that an employee cannot be dismissed (or transferred) from the service for causes other than
those provided by law and after due process is accorded the employee. What it seeks to prevent is
capricious exercise of the power to dismiss. But where it is the law-making authority itself which furnishes
the ground for the transfer of a class of employees, no such capriciousness can be raised for so long as the
remedy proposed to cure a perceived evil is germane to the purposes of the law. (Agripino A. De
Guzman, Jr., et al. v. COMELEC, G.R. No. 129118, July 19, 2000, En Banc [Purisima])

Discuss Abolition of Office.
Held: The creation and abolition of public offices is primarily a legislative function. It is acknowledged that
Congress may abolish any office it creates without impairing the officers right to continue in the position
held and that such power may be exercised for various reasons, such as the lack of funds or in the interest
of economy. However, in order for the abolition to be valid, it must be made in good faith, not for political
or personal reasons, or in order to circumvent the constitutional security of tenure of civil service
employees.
An abolition of office connotes an intention to do away with such office wholly and permanently, as the word
abolished denotes. Where one office is abolished and replaced with another office vested with similar
functions, the abolition is a legal nullity. Thus, in U.P. Board of Regents v. Rasul we said:
It is true that a valid and bona fide abolition of an office denies to the incumbent the right to security of
tenure (De la Llana v. Alba, 112 SCRA 294 [1982]). However, in this case, the renaming and restructuring
of the PGH and its component units cannot give rise to a valid and bona fide abolition of the position of PGH
Director. This is because where the abolished office and the offices created in its place have similar
functions, the abolition lacks good faith (Jose L. Guerrero v. Hon. Antonio V. Arizabal, G.R. No. 81928, June
4, 1990, 186 SCRA 108 [1990]). We hereby apply the principle enunciated in Cezar Z. Dario v. Hon.
Salvador M. Mison (176 SCRA 84 [1989]) that abolition which merely changes the nomenclature of positions
is invalid and does not result in the removal of the incumbent.
The above notwithstanding, and assuming that the abolition of the position of the PGH Director and the
creation of a UP-PGH Medical Center Director are valid, the removal of the incumbent is still not justified for
the reason that the duties and functions of the two positions are basically the same.
This was also our ruling in Guerrero v. Arizabal, wherein we declared that the substantial identity in the
functions between the two offices was indicia of bad faith in the removal of petitioner pursuant to a
reorganization. (Alexis C. Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132,
Jan. 25, 2000, En Banc [Gonzaga-Reyes])

What is reorganization? When is it valid? When is it invalid?
Held: 1. Reorganization takes place when there is an alteration of the existing structure of government
offices or units therein, including the lines of control, authority and responsibility between them. It involves
a reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy
of functions. Naturally, it may result in the loss of ones position through removal or abolition of an
office. However, for a reorganization to be valid, it must also pass the test of good faith, laid down in Dario
v. Mison:
x x x As a general rule, a reorganization is carried out in good faith if it is for the purpose of economy or to
make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually
occurs because the position itself ceases to exist. And in that case, security of tenure would not be a
Chinese wall. Be that as it may, if the abolition which is nothing else but a separation or removal, is done
for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid
abolition takes place and whatever abolition is done, is void ab initio. There is an invalid abolition as
where there is merely a change of nomenclature of positions, or where claims of economy are belied by the
existence of ample funds. (Alexis C. Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R. No.
133132, Jan. 25, 2000, En Banc [Gonzaga-Reyes])
2. While the Presidents power to reorganize can not be denied, this does not mean however that
the reorganization itself is properly made in accordance with law. Well-settled is the rule that reorganization
is regarded as valid provided it is pursued in good faith. Thus, in Dario v. Mison, this Court has had the
occasion to clarify that:
As a general rule, a reorganization is carried out in good faith if it is for the purpose of economy or to
make the bureaucracy more efficient. In that event no dismissal or separation actually occurs because the
position itself ceases to exist. And in that case the security of tenure would not be a Chinese wall. Be that
as it may, if the abolition which is nothing else but a separation or removal, is done for political reasons or
purposely to defeat security of tenure, or otherwise not in good faith, no valid abolition takes place and
whatever abolition done is void ab initio. There is an invalid abolition as where there is merely a change of
nomenclature of positions or where claims of economy are belied by the existence of ample funds. (Larin
v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)

What are the circumstances evidencing bad faith in the removal of employees as a result of
reorganization and which may give rise to a claim for reinstatement or reappointment)?
Held: Where there is a significant increase in the number of positions in the new staffing pattern of the
department or agency concerned;
Where an office is abolished and another performing substantially the same functions is created;
Where incumbents are replaced by those less qualified in terms of status of appointment, performance and
merit;
Where there is a reclassification of offices in the department or agency concerned and the reclassified offices
perform substantially the same functions as the original offices;
Where the removal violates the order of separation provided in Section 3 hereof.
(Sec. 2, R.A. No. 6656; Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)


Can a member of the cabinet hold an outside employment in the private sector for compensation while
acting as a cabinet member?

Thank you for your query, Brown. As far as Section 36 (24) of the Civil Service Law is concernced,
members of the cabinet shall not be allowed to pursue business, vocation or profession without the
permission required by the CSC rules and regulations. The test is whether or not such private practice
would be prejudicial to the best interest of public service, or when there is conflict of interest between his
office and his personal business or profession.
Further, RA 6713 has this provision on the matter:
Section 7. Prohibited Acts and Transactions. In addition to acts and omissions of public officials and
employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited
acts and transactions of any public official and employee and are hereby declared to be unlawful:
(a) Financial and material interest. Public officials and employees shall not, directly or indirectly, have
any financial or material interest in any transaction requiring the approval of their office.
(b) Outside employment and other activities related thereto. Public officials and employees during their
incumbency shall not:
(1) Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent,
trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless
expressly allowed by law;
(2) Engage in the private practice of their profession unless authorized by the Constitution or law,
provided, that such practice will not conflict or tend to conflict with their official functions; or
(3) Recommend any person to any position in a private enterprise which has a regular or pending official
transaction with their office.
These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or
separation from public office, except in the case of subparagraph (b) (2) above, but the professional
concerned cannot practice his profession in connection with any matter before the office he used to be
with, in which case the one-year prohibition shall likewise apply.
(c) Disclosure and/or misuse of confidential information. Public officials and employees shall not use or
divulge, confidential or classified information officially known to them by reason of their office and not
made available to the public, either:
(1) To further their private interests, or give undue advantage to anyone; or
(2) To prejudice the public interest.