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REVIEWER ON THE LAW ON PUBLIC OFFICERS

Alberto C. Agra and Sarah Arriola


Ateneo Law School
Supreme Court Cases up to 31 July 2014

Part 1. Definitions, Distinctions, and Classifications

A. Meaning of office
1. Office may be defined as a position or function by virtue of which a person is
employed in anothers affairs, either by being appointed, elected, or appointed during
the pleasure of the appointing power or for a fixed term (63A Am. Jur. 2d 667).

B. Meaning of public office


a. It refers to the right, authority, and duty created and conferred by law, by which for a
given period, either fixed by law or enduring at the pleasure of the appointing power,
an individual is invested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the public (MECHEM, A
Treatise on the Law of Public Officers and Officers, pp. 1-2 (1890); see Aparri v.
Court of Appeals, 127 SCRA 231 (1984).

b. It is a charge, station or employment conferred by appointment or election by


government (Metchalf & Eddy v. Mitchell, 269 U.S. 514, 70 L. Ed. 384, 46 S. Ct. 172).

C. Purpose and Nature of Public Offices


1. It is created to effect the end for which government has been instituted, which is the
common good, and not for profit, honor, or private interest of any person, family, or
class of persons.
2. A public office is a public trust created in the interest and for the benefit of the people.

D. Public office is a public trust.


1. Holders are regarded as public servants. The powers delegated to them are held in trust
for the people and are to be exercised in behalf of the government or all citizens.
2. Holders are subject to highest standards of accountability and service.

E. Public office is not a property.


1. Holder are subject to removal or suspension according to law.
a. Proprietary claim to public office is precluded.
b. However, the officer is not to be denied due process of law by the abolition of the
office before expiration of term or by his removal/suspension according to law or by
the passage of a statute limiting or reducing his compensation.
c. An officer has no property rights in the books and papers pertaining to his office.

2. Holders are without any vested right in any public office.


a. Except constitutional offices which provide for special immunity on salary and
tenure, no one can be said to have any vested right to an office or its salary, let
alone an absolute right to it. (Sangguniang Bayan of San Andres, Catanduanes v.
Court of Appeals, 284 SCRA 270 (1998))

3. Holders right in nature of privilege entitled to protection.

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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
a. An office may be considered property within the protection of due process in
controversies relating to the question as to which of two persons is entitled thereto,
as well as concerns about ones constitutional right to security of tenure.

4. Holders right to personal claim.


a. Public office is personal to the incumbent or appointee. As such, it is not property
which passes to his heirs upon death.

Segovia v. Noel (47 Phil., 543 [1925])

S, a justice of the peace, was ordered by the Secretary of Justice to vacate the post when he
became 65 years old as per Act No. 3107. The said law amended Section 203 of the Administrative
Code by stating that justices of the peaceare to serve until they reach the age of 65. N, the
auxiliary justice, acted as justice of the peace. S filed for quo warranto.

S should not step down as per Act No. 3107. The Act did not amend the Administrative Code which
provides that a justice of the peace having the requisite legal qualifications shall hold office during
good behavior unless his office be lawfully abolished or merged into the jurisdiction of some other
justices. A statute operates only prospectively unless otherwise provided by the express terms of
the statute or by necessary implication.

The right to an office is not vested but such right shall be taken away only when the terms of the law
is clear in which the purpose is stated.

F. Public office is not a contract.


a. It creates no contractual relation between the holder and the public.
b. It exists by virtue of some law expressly or impliedly creating it.
c. It generally entitled the holder to compensation for performance of his public duties.
However, salary is a mere incident and forms no part of the office. It is not a necessary
criterion for determining the nature of the position (Laurel v. Desierto, 381 SCRA 48
(2002); Serana v. Sandiganbayan, 212 SCRA 224 (2008)).

G. Public Office and Public Contract distinguished

As to Public Office Public Contract


Creation A public office is an incident A contract originates from the
of sovereignty. will of the parties and subject to
the limitations imposed by law.
Object A public offices object is to A contract imposes obligations
carry out governmental and only upon those who entered it.
sovereign functions even
those not bound by contract.
Subject Matter and Scope In a public office, there is In a contract, there are terms
tenure, duration and defining and limiting the rights
continuity. and obligations of the parties.

H. Public Office and Public Employment distinguished

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As to Public Office Public Employment
Key Considerations There is a delegation of some No such delegation of sovereign
of the sovereign functions of functions to public employment.
government to a public office.

Every public office may be an Every public employment is not


employment. an office.
Manner of Creation A public office is created by Public employment lacks such
law with duties involving the elements of a public office.
exercise of some portion of
the sovereign power.

I. Essential elements of a public office:

a. It is created by the Constitution or by law or by some body or agency to which the


power to create the office has been delegated;

b. It must be invested with an authority to exercise some portion of the sovereign power of
the State to be exercised for public interest;

c. Its powers and functions are defined by the Constitution, or by law, or through legislative
authority;

d. The duties pertaining to a public office are performed independently, without control of a
superior power other than law, unless they are those of an inferior or subordinate officer,
created or authorized by the legislature and placed by it under the general control of a
superior officer or body; and

e. It is continuing and permanent in nature and not occasional or intermittent (State v.


Taylor, 144 N.W. 2d. 289).

J. Creation of public office

a. Generally, a public office is created by some constitutional or statutory provision or by


authority conferred by it.

b. By the exercise of Congress of its legislative function. Except for such offices created by
the Constitution, the legislative department has the primary discretion to determine
whether additional public offices shall be created, or whether these duties shall be
attached to and become ex officio duties of existing offices.

c. By the President in so far as bureaus, agencies, or offices in the executive department


are concerned, in the exercise of the continuing authority to reorganize the administrative
structure of the Office of the President (Buklod ng Kawaning EIIB v. Zamora, 360 SCRA
718 (2001)).

K. Modification or abolition of public offices

1. The power to create an office generally includes the power to modify or abolish it; as
well as the power to fix the number of positions and the salaries and emoluments of the
holders thereof and provide funds for the offices created.

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Alberto!C.!Agra,!Ateneo!Law!School
2. Office created by Congress
a. Unless prohibited by the Constitution, Congress may control, modify, consolidate,
or abolish public offices created by it whenever such course may seem necessary,
expedient, or conducive to the public good.

3. Offices created by the Constitution


a. Constitutional offices may be modified or abolished by the people through a
constitutional provision, and such offices are beyond the power of the legislature to
alter or discontinue. However, the mere mention of an office in the Constitution
does not necessarily endow the office with constitutional status which prevents its
abolition by Congress (63A Am. Jur. 2d 687-688).

L. Exercise of sovereign powers and functions


1. One of the most important criteria of public office
a. Public office implies an authority to exercise some portion of the sovereign power
of the State in making, executing, or applying the law.
2. Authority conferred by law
a. The authority to exercise some portion of the sovereign power is bestowed by law.
Unless the powers conferred are of this nature, the position is not a public office.
3. Extent of authority not material
a. It is the duties of an incumbents office which makes him a public officer and not the
extent of his authority.
4. Presumption of regularity of official acts
a. Public officers enjoy the presumption of regularity in the exercise of their functions,
and the presumption may be overthrown only be clear and convincing proof to the
contrary. However, the presumption does not apply when an officials acts are not
within the duties specified by law, particularly when his acts properly pertain or
belong to another entity, agency, or public official (Reyes, Jr. v. Belisario, 596 SCRA
31 (2009)).

Laurel vs. Desierto (381 SCRA 48 [2002])

The most important characteristic in determining whether a position is a public office or not, is the
delegation to an individual of some of the sovereign functions of the government, i.e. executive,
legislative or judicial functions to be exercised for the benefit of the public.

Petitioner, Laurel, was appointed as the Chairperson of the National Centennial Commission (NCC)
created under Executive Order No. 128. The NCC is tasked to undertake the preparations for the
celebration of the Philippine Independence. Such occasion is said to be a vehicle in showcasing
Filipino heritage and identity, which is mandated under Article XIV of the 1987 Constitution. The
NCC, therefore, performs an executive function in implementing the supreme law of the land. The
inescapable conclusion is that "NCC is a public office and petitioner, as its Chair, is a public officer."

That the petitioner did not receive a salary is of no moment because compensation is a mere
incident of public office. As NCC chair, petitioner is occupying an honorary office as distinguished
from a lucrative office albeit it is still a public office. "Neither is the fact that the NCC was
characterized by E.O. No. 128 as an "ad-hoc body" makes said commission less of a public office."

Serana vs. Sandiganbayan, et. al. (G.R. No. 162059, January 22, 2008)

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Alberto!C.!Agra,!Ateneo!Law!School
"As an investment in an individual of some portion of the sovereign functions of the government to
be exercised by him for the benefit of the public makes one a public officer." Petitioner Serana, as
the student regent of the University of the Philippines-Diliman is deemed a public officer because a
perusal of the existing charter of UP would show that the Board of Regents, where petitioner is a
member, exclusively exercises the powers of administration of the University.

The fact that Serana does not receive any salary as a student regent is of no moment because
compensation is not a essential element of public office.

Go vs. Sandiganbayan et. al. (G.R. No. 172602, 13 April 2007)

The fact that petitioner, Go, is not a public officer would not automatically exclude him from the
application of Section 3(g) of RA 3019 or The Anti Graft Law. Section 3(g) penalizes public officers
who enter into a transaction in behalf of the government, which is manifestly and grossly
disadvantageous to the latter, regardless of whether such public officers profited or will profit
thereby. To say otherwise could do violence with the avowed policy of the said law to "repress
certain acts of public officers and private persons."

"Private persons, when acting in conspiracy with public officers, may be indicted and if found guilty
be held liable for the pertinent offenses under Section 3 of RA 3019."

Javier vs. Sandiganbayan, et. al. (G.R. 147026-27, 11 September 2009)

Petitioner was invested by law with some portion of the sovereign functions of the government and
is therefore a public officer. She is the representative of the private sector in the National Book
Development Board (NBDB), which is a statutory agency created by RA 8047. The primary purpose
of the said law is to ensure the development of the book publishing industry and the NBDB is tasked
to supervise the implementation of the same.

Further, pursuant to the Anti-Graft Law, petitioner is a public officer since she was appointed by the
President to the Governing Board of the NBDB. The fact that she was not receiving a salary is
inconsequential because under the Anti-Graft Law, "the nature of one's appointment, and whether
the compensation one receives from the government is only nominal, is immaterial because the
person so elected or appointed is still considered a public officer."

Also, petitioner is a public officer under the Revised Penal Code considering that she takes part in
the performance of public functions in the government. During her tenure, she took pat in the
formulation of the implementing rules and regulations of RA 8047.

M. Tenure and duration


1. Existence of definite tenure is immaterial.
a. The duration of tenure need not be for a fixed period, but may be at the pleasure of
the appointing power (63A Am. Jur. 2d 670).
2. Continuance of office holder is immaterial.
a. The duties attached to the position continue although the officer holder may change.
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3. Permanence of office is immaterial.
a. If the other elements are present, it makes no difference whether there can be but
one act or a series of acts to be done whether the office expires as soon as the
one act is done, or is to be held for years or during good behavior.

N. Meaning of officer/public officer/employee/public official

1. Officer is one who holds a public office. Under the Administrative Code of 1987, it
refers to a person whose duties involve the exercise of discretion in the performance of
the functions of the government.

2. Public officer is such an officer as is required by law to be elected or appointed, who


has a designation or title given to him by law, and who exercises functions concerning
the public, assigned to him by law (63A Am. Jur. 2d 670). Under the Revised Penal
Code, any person who takes part in the performance of public functions or performs
public duties is deemed a public officer. The RPC definition, therefore, eliminates the
standard distinction between officer and employee.

3. Employee includes any person in the service of the government or any of its agencies,
divisions, subdivisions, or instrumentalities.

O. Officer and employee distinguished


1. In the law of public officer
a. The definition of public officer is imbued with greater importance, dignity, and
independence of his position. In addition, a public officer must be invested by law
with a portion of the sovereignty of the State and authorized to exercise functions of
an executive, legislative, or judicial character.

2. Under the Revised Penal Code


a. Any person who takes part in the performance of public functions or performs public
duties is deemed a public officer.

Azarcon vs. Sandiganbayan, et. al., (268 SCRA 747 [1997])

By signing the receipt for the truck constructively distraint by the Bureau of Internal Revenue,
petitioner, Azarcon, became the custodian of such properties with an obligation to preserve the
same and not allow any person to remove it without the authority of the BIR. This designation,
however, did not make him a "public officer" within the purview of the Revised Penal Code.
Petitioner's appointment is neither by popular election nor by direct provision of law nor by
competent authority. There is no provision in the National Internal Revenue Code that constitutes
the private individual appointed by the BIR as depositary, a public officer. Further, nowhere is
it provided in Article 222 of the RPC that a private individual falling therein as administrator or
depositary of funds or property attached or seized by public authority, is to be deemed a public
officer.

Since petitioner is not a public officer but a private individual, the Sandiganbayan has no jurisdiction
over him. Azarcon cannot be charged of malversation of public funds, absent an allegation that he
is a co-pricipal, accomplice or accessory acting in conspiracy with a public officer.

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Alberto!C.!Agra,!Ateneo!Law!School
P. Meaning of public official
1. Public Official is defined as an officer of the Government itself, as distinguished from
the officers and employees of instrumentalities of the government. However, the term
public official is ordinarily synonymously used with public officer.

Q. Classification of public offices/public officers

1. As to nature of functions
a. Civil Office(r) - covers any kind of public office, whether executive, legislative, or
judicial, but excluding military offices.
b. Military office(r) - includes all offices in the armed forces which solely involve military
functions.

2. As to creation
a. Constitutional office(r) one created by the Constitution
b. Statutory office(r) one created by statute and over which Congress has full control.

3. As to the department of government to which it belongs


a. Legislative office(r) one charged with functions involving mainly the enactment of
laws.
b. Executive office(r) one charged with functions involving mainly the execution or
administration of laws.
c. Judicial office(r) one charged with functions connected with the adjudication of
actual justiciable controversies and the interpretation of laws.

4. As to the branch of government served


a. National office(r) includes any office in the national or central government as
distinguished from local governments.
b. Local office(r) includes any office in the political subdivisions of the Philippines
such as autonomous regions, provinces, cities, municipalities, barangays, and other
forms of local government.

5. As to whether exercise of discretion is required


a. Quasi-judicial office(r) includes any office (other than courts of justice) whose
officers are charged with functions that are not strictly judicial but require the
exercise of discretion or judgment.
b. Ministerial office(r) includes any office whose officers are charged with the duty to
execute mandates lawfully issued by their superior.

6. As to compensation
a. Lucrative office(r) any office to which salary, compensation or fees are attached.
b. Honorary office(r) no compensation is attached.

Part 2. Eligibility and Qualifications

A. In General

1. Meaning of eligibility/eligible/ineligibility/ineligible
a. Eligibility state or quality of being legally fitted or qualified to be chosen.
Eligibility to a public office is of a continuing nature and must exist both at the
commencement and during the occupancy of an office (Aguila v. Genato, 103 SCRA
(1981)).
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Alberto!C.!Agra,!Ateneo!Law!School
b. Eligible means being legally fitted or qualified to hold an office. Under the
Administrative Code of 1987, it refers to one who obtains a passing grade in a civil
service exam (Executive Order No. 292, Book V, Title I, Subtitle A, Chapter 1,
Section 5(8)).
c. Ineligibility refers to lack of qualifications required by law for holding public
office.
d. Ineligible may mean legally or otherwise disqualified to hold an office;
disqualified to be elected to an office; disqualified to hold an office if elected or
appointed to it.

2. Meaning of Qualification
a. It may refer to the endowment or accomplishment that fits one for office; or
b. It may refer to the act which a person is legally required to do before entering upon
the performance of his duties.

3. Nature of right to hold public office


a. Not a natural right
1. It exists only because of some law expressly or impliedly creating or conferring
it.
b. Not a constitutional right
1. It is not a constitutional right but a political privilege that depends upon the favor
of the people and subject to reasonable conditions for the public good, lawful,
and non-discriminatory terms laid down by law.

4. Power of Congress to prescribe qualifications


a. In general
1. Congress has the power to prescribe such qualifications which must have a
rational basis with the duties of the position in question, and not inconsistent
with constitutional provisions.
b. Where office is created by Congress
1. Congress is empowered to specify qualifications and disqualifications as long as
these are not contrary to the Constitution.
c. Where office is created by the Constitution
1. The constitutional criteria are exclusive and Congress has no power to require
different qualifications for constitutional offices other than those qualifications
laid in the Constitution, unless the Constitution expressly or impliedly gives the
power to set qualifications.
d. Where qualifications prescribed by the Constitution
1. Congress may prescribe certain qualifications unless it appears that this is
prohibited.

Ignacio v. Banate, Jr. (153 SCRA 546 [1987])

Banate was designated as member of the Sangguniang Panglungsod to replace Ignacio who claims
that Banate is not qualified because the latter is not an officer, much less, a member of the
Katipunang Panglunsod as required under the Local Government Code.

The appointment is not valid. Banata did not meet the qualifications required by law. An unqualified
person cannot be appointed to position, even in an acting capacity.

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5. Power of Congress to prescribe disqualifications
a. In the absence of constitutional inhibition, Congress may prescribe disqualifications.
In addition, Congress cannot remove a disqualification that the Constitution has
attached to the position.

Vargas v. Rilloraza (80 Phil. 297 [1948])

Vargas questions the People Courts Act which (1) disqualified justices who held office under the
Philippine Executive Commission during the Japanese regime from adjudicating in cases where the
accused held offices under the two; and (2) provided that the President may designate judges to
temporarily serve in the Supreme Court when the number of justices who left does not constitute a
quorum.

The Act is repugnant to the Constitution. It added grounds for disqualification of a Supreme Court
justice. It disqualified a majority of the members of the Supreme Court. In addition, the temporary
composition of the Supreme Court is not allowed as the Supreme Court is a permanent institution as
provided in the Constitution.

6. Construction of restrictions on eligibility


a. Presumption in favor of eligibility
1. A strong public policy exists in favor of eligibility. Hence, the right to public
office should be strictly construed against ineligibility. However, statutes
declaring qualifications are to receive liberal construction does not mean that
courts could give an unreasonable construction to uphold the right to hold
office.
b. Basis of presumption
1. A strong public policy exists in favor of eligibility to public office. A
constitutional provision, where the language and context allow, should be
construed as to preserve this eligibility as ambiguities are to be resolved in favor
of eligibility to office.
c. Rule of liberal construction
1. The right to public office should be strictly construed against ineligibility.
However, while statutes declaring qualifications are to receive liberal
construction, it does not mean that courts should give unreasonable
construction in order to uphold the right of one to hold office.

7. Time of possession of qualifications


a. Where time specified by Constitution or law
1. The candidate must possess the necessary qualifications at the time specified
by Constitution or law.
b. Where Constitution or law is silent
1. The courts may take recourse to some other means to determine specifications
such as through textual analysis of the terms used in the qualifications.
c. When qualification must always exist.
1. Eligibility to public office is of a continuing nature and must exist at the
commencement of the term and during the occupancy of the office (Aguila v.
Genato, 103 SCRA 380 (1981)).

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2. The qualifications prescribed for elective office cannot be erased by the
electorate alone. The will of the people as expressed through the ballot cannot
cure the vice of ineligiibilty especially if they mistakenly believed that the
candidate was qualified. (Frivaldo v. Commission on Elections, 174 SCRA 245
(1989))
3. It has been held, however, that Section 39 of the Local Government Code on
Qualifications ot Elective Officials does not specifiy any particular date or time
when the candidate must possess citizenship, unlike that for residence (which
must consist of at least 1 years residence immediately preceding the day of
election) and age (at least 23 years of age on election day).

8. Removal of disqualifications during term


a. Courts have not agreed on the effect of removal of disqualification after the
commencement and during the term of office. Some courts hold that such removal
validates the title of the incumbent. Other courts take the contrary view depending
on the nature of the disqualification, mode of removing it, time of removal, etc.

Castaeda v. Yap (91 Phil. 819 [1923])

Elected Mayor Yap claimed that Castaeda was estopped from questioning his eligibility (Mayor Yao
did not meet the minimum age requirement when he was proclaimed) because Castaeda failed to
do it before or during the election.

Castaeda is not estopped. A candidates eligibility is always subject to question. Under the
applicable law at the time of the case was decided, the right of an elective municipal office can be
contested only after proclamation. Good faith does not cure a candidates ineligibility, although it
might be a good defense in a criminal prosecution.

B. Particular Qualifications and Disqualifications

1. Qualifications usually required of public officers


a. Citizenship
1. Aliens are ineligible to public office, unless the privilege is extended to them by
law.

b. Age
1. The age limit for certain offices may, by constitutional or statutory provision, be
placed beyond the age of majority.

c. Right of Suffrage
1. Only electors or voters are eligible for public office.

d. Residence
1. Statute may require that a candidate for election or appointment to an office of a
political subdivision or unit be a resident or inhabitant thereof.

2. Residence and Domicile both mean an intention to reside in a fixed place


and personal presence in that place, coupled with conduct indicative of that
intention.

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Alberto!C.!Agra,!Ateneo!Law!School
e. Education
1. Some statutes prescribe educational qualifications for certain offices requiring
persons possessing professional attainments.

f. Ability to read and write


1. The qualification may be lawfully made since there is no constitutional
prohibition against it especially where it has a reasonable relationship to the
duties of the position in question.

g. Political affiliation
1. The Constitution and existing laws sometimes require membership in a political
party or group as a condition for eligibility to certain offices (Constitution, Article
VI, Section 17, 18; Local Government Code, Section 45(b)).

h. Civil service exam


1. Qualifications in an appropriate exam for appointment to first and second level
positions in the career service is required under the Civil Service Law to ensure
merit and fitness to perform the duties attached to the positions (Presidential
Decree No. 807, Section 19(7)).

2. Religious qualifications prohibited.


a. Religious beliefs or opinions cannot be made a test of political right and privilege.

b. No religious test shall be required for the exercise of civil or political rights
(Constitution, Article III, Section 5).

3. Power of Congress to impose property qualifications


a. View that law constitutional
1. Legislature has the power to impose property qualifications upon office holders,
unless inhibited by the constitution. This view holds that certain public officers
may be required to be resident property owners without violating due process
and equal protection laws.

b. View that law unconstitutional


1. This view holds that property ownership requirement runs against due process
and equal protection guarantees as there is no rational connection between
qualifications for administering public affairs and ownership of real property.

2. The Supreme Court declared as unconstitutional a law requiring all candidates


for public offices to post a surety bond equivalent to the one year salary or
emoluments for the position for which they are candidates (Maquera v. Borra, 15
SCRA 7 (1965)).

4. Qualifications prescribed by the Constitution for certain officers


a. President and Vice-President

No person may be elected President unless he is a natural-born citizen of the Philippines, a


registered voter, able to read and write, at least forty years of age on the day of the election, and a
resident of the Philippines for at least ten years immediately preceding such election. (Constitution,
Article VII, Section 2)

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b. Senators

No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day
of the election, is at least thirty-five years of age, able to read and write, a registered voter, and
resident of the Philippines for not less than two years immediately preceding the day of the
election. (Constitution, Article VI, Section 3)

c. Members of the House of Representatives

No person shall be a Member of the House of Representatives unless he is a natural-born citizen of


the Philippines, and, on the day of the election, is at least twenty-five years of age, able to read and
write, and, except the party-list representatives, a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less than one year immediately preceding the day
of the election. (Constitution, Article VI, Section 6)

d. Members of the Supreme Court and lower collegiate court

No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he
is a natural-born citizen of the Philippines. A Member of the Supreme Court must be at least forty
years of age, and must have been for fifteen years or more a judge of a lower court or engaged in
the practice of law in the Philippines. (Constitution, Article VIII, Section 7(1)).

1. A member of the judiciary must be a person of proven competence, integrity,


probity and independence. (Constitution, Article VIII, Section 7(3)).

e. Chairman and Commissioners of the Civil Service

The civil service shall be administered by the Civil Service Commission composed of a Chairman
and two Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, with proven capacity for public administration, and
must not have been candidates for any elective position in the elections immediately preceding their
appointment. (Constitution, Article IX-B, Section 1(1)).

f. Chairman and Commissioners of the Commission on Elections

There shall be a Commission on Elections composed of a Chairman and six Commissioners who
shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-
five years of age, holders of a college degree, and must not have been candidates for any elective
position in the immediately preceding elections. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for
at least ten years. (Constitution, Article IX-C, Section 1(1)).

g. Chairman and Commissioners of the Commission on Audit

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There shall be a Commission on Audit composed of a Chairman and two Commissioners, who shall
be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five
years of age, certified public accountants with not less than ten years of auditing experience, or
members of the Philippine Bar who have been engaged in the practice of law for at least ten years,
and must not have been candidates for any elective positions in the elections immediately preceding
their appointment. At no time shall all Members of the Commission belong to the same profession.
(Constitution, Article IX-D, Section 1(1)).

h. Chairman and Members of the Commission on Human Rights

The Commission shall be composed of a Chairman and four Members who must be natural-born
citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office
and other qualifications and disabilities of the Members of the Commission shall be provided by
law. (Constitution, Article XIII, Section 17(2)).

i. Ombudsman and his deputies

The Ombudsman and his deputies shall be natural-born citizens of the Philippines, and at the time
of their appointment, at least forty years old, of recognized probity and independence, and members
of the Philippine Bar, and must not have been candidates for any elective office in the immediately
preceding elections. The Ombudsman must have for ten years or more been a judge or engaged in
the practice of law in the Philippines. (Constitution, Article XI, Section 8).

5. Qualifications prescribed by law for certain officers

a. Secretaries of Departments

The Secretaries shall be citizens of the Philippines and not less than twenty-five years of age.
(Administrative Code of 1987, Book IV, Chapter 10, Section 45).

b. Presiding Justice and Associate Justices of the Court of Appeals

The Presiding Justice and Associate Justices shall have the same qualifications as those provided
in the Constitution for Justices of the Supreme Court. (Batas Pambansa Blg. 129, Section 7).

c. Judges of the Regional Trial Courts

No persons shall be appointed Regional Trial Court judge unless he is a natural-born citizen of the
Philippines, at least thirty-five years of age, and, for at least ten years, has been engaged in the
practice of law in the Philippines requiring admission to the practice of law as an indispensable
requisite. (Batas Pambansa Blg. 129, Section 15).

d. Judges of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts
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No person shall be appointed judge of a Metropolitan Trial Court, Municipal Trial Court, or
Municipal Circuit Trial Court unless he is a natural-born citizen of the Philippines, at least 30 years of
age, and, for at least five years, has been engaged in the practice of law in the Philippines, or has
held a public office in the Philippines requiring admission to the practice of law as an indispensable
requisite. (Batas Pambansa Blg. 129, Section 26).

e. Elective local official


1. An elective local official must be a citizen of the Philippines; a registered voter
in the barangay, municipality, city or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan,
the district where he intends to be elected; a resident therein for at least one (1)
year immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect.

2. Candidates for the position of governor, vice-governor or member of the


sangguniang panlalawigan, or mayor, vice-mayor or member of the sangguniang
panlungsod of highly urbanized cities must at least be twenty-three (23) years of
age on election day.

3. Candidates for the position of mayor or vice-mayor of independent component


cities, component cities, or municipalities must be at least twenty-one (21) years
of age on election day.

4. Candidates for the position of member of the sangguniang panlungsod or


sangguniang bayan must be at least eighteen (18) years of age on election day.

5. Candidates for the position of punong barangay or member of the sangguniang


barangay must be at least eighteen (18) years of age on election day.

6. Candidates for the sangguniang kabataan must be at least fifteen (15) years of
age, but not more than twenty-one (21) years of age on election day. (Local
Government Code (R.A. No. 7160), Section 39.)

f. Members of the Board of Election Inspectors

No person shall be appointed Chairman, member, or substitute member of the Board of Election
Inspectors unless he is of good moral character and irreproachable reputation, a registered voter of
the city or municipality, has never been convicted of any election offense or of any other crime
punishable by more than six months of imprisonment, or if there is a pending information against
him for any election offense. He must be able to speak and write English or the local dialect.
(Omnibus Election Code, Section 166)

SUMMARY OF QUALIFICATIONS

President and VP Senators Members of the Members of the


House of Supreme Court, lower
Representatives collegiate courts
Citizenship Natural-born Natural-born Natural-born Natural-born
Age 40 years 35 years 25 years 40 years
Residency Philippines, at least 10 Philippines, at least 2 District, at least 1 year -
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year year
Right to suffrage Resident voter Resident voter Resident voter -
Educational or Read and write Read and write Read and write 15 years or more, judge
professional or engaged in practice
background of law in the Philippines
Others Person of proven
competence, integrity,
probity and
independence

CSC Chair and COMELEC Chair COA Chair and CHR Chair and Ombudsman and
Commissioners and Commissioners Commissioners his Deputies
Commissioners
Composition Chairman + 2 Chairman + 6 Chairman + 2 Chairman + 4
Com Com Com Com
Citizenship Natural-born Natural-born Natural-born Natural-born Natural-born
Age 35 years 35 years 35 years 40 years
-

Educational or Proven capacity College degree CPA not less than Majority must be Lawyers in practice
professional for public holder 10 years of lawyers for at least 10 years
background administration BUT majority, auditing Recognized probity
including the experience or and independence
Chair, lawyers in lawyers in
practice of law for practice of law for
at least 10 years 10 years
No time all the
same profession
Disqualification Candidates for any elective position in Term of office and other
election immediately preceding their qualify to be provided by law
appointment

Department Presiding Justice and RTC Judge MTC, MCTC, MeTC


Secretary CA Assoc Justices Judge
Citizenship Citizen of the Natural born Natural born Natural born
Philippines
Age 25 years of age 40 years of age 35 years of age 30 years of age
Educational or - At least 15 years judge At least 10 years judge At least 5 years judge
Professional or practicing law in the or practicing law in the or practicing law in the
background Philippines Philippines Philippines

Gov & VGov, Mayor & VMayor Member of Punong Barangay Member of
Member of of Independent Sangguniang or Member of Sangguniang
Sangguniang Component Panglungsod or Sangguniang Kabataan
Panlalawigan,Ma Cities, Sangguniang Barangay
yor, VMayor, Component Bayan
Member of Cities,
Sangguniang Municipalities
Panglungsod of
Highly Urbanized
Cities
Citizenship Citizen of the Citizen of the Citizen of the Citizen of the Citizen of the
Philippines Philippines Philippines Philippines Philippines
Right of Suffrage Registered Voter Registered Voter Registered Voter Registered Voter Registered Voter
Age 23 years 21 years 18 years 18 years At least 15 but
not more than 21
Educational or Read and write Read and write Read and write Read and write Read and write
Professional Filipino or any Filipino or any Filipino or any Filipino or any Filipino or any
background local language or local language or local language or local language or local language or
dialect dialect dialect dialect dialect

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6. Disqualifications to hold public office

a. Causes of disqualification to hold public office


1. Mental or physical incapacity
a. Law requires a public officer to be in possession of his mental faculties.

b. Blindness may not necessarily disqualify a person from public office if he


possesses the other qualifications imposed by law.

2. Misconduct or crime
a. Persons convicted of crimes involving moral turpitude are usually
disqualified from holding public office.

b. The wording or the applicable constitutional or statutory provisions


determines whether the ineligibility to hold office because of a crime results
from mere commission or arises only after prosecution and conviction.

c. A violation of a municipal ordinance to qualify as a crime must involve at


least a certain degree of evil doing, immoral conduct, corruption, malice, or
want of principles reasonably related to the requirements of the public
office.

3. Impeachment
a. Persons subject to impeachment:
1. President
2. Vice-President
3. Members of the Supreme Court
4. Members of Constitutional Commission
5. Ombudsman
b. Judgment in impeachment cases is limited to removal from office and
disqualification to hold any office under the Republic of the Philippines but
the convicted person shall still be subject to prosecution, trial and
punishment according to law. (Constitution, Article XI, Section 3(7).

Estrada vs. Desierto (356 SCRA 108)

Section 3(7), Article XI of the 1987 Constitution does not require that petitioner should first be
convicted in the impeachment proceedings before he can face prosecution for the criminal offenses
filed before the Office of the Ombudsman. Instead, the said constitutional provision provides for two
things: first, judgment in impeachment is limited only to removal from office and disqualification from
holding any other office in the government; and second, the party convicted may still be held liable
under prosecution and punishment according to law.

Further, the impeachment proceedings have become moot and academic due to petitioner's
resignation. The impeachment court is now functus officio. It is unreasonable to demand that
petitioner should first be impeached before criminal cases may be filed against him because the
same would result to a perpetual bar from prosecution.

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4. Removal or suspension from office
a. Removal from office bars the removed officer from being elected or
appointed to fill the vacancy for the unexpired term but it does not disqualify
him to take some other office or be elected or appointed to a new term of
the same office.

5. Previous tenure of office


a. President is absolutely disqualified for any re-election regardless of the
length of his service. A person who succeeded as President is disqualified
for re-election if he has served for more than 4 years. (Constitution, Article
VII, Section 4)
b. Chairman and Commissioners of the Civil Service Commission, Commission
on Elections, and Commission on Audit are appointed by the President
without reappointment.
c. Ombudsman and his Deputies are not qualified to run for any office in the
election immediately succeeding their cessation from office.

6. Consecutive terms
a. Vice-President shall not serve for more than 2 successive terms.
Voluntary renunciation of the office shall not be considered an interruption of
the service for the full term for which he was elected. (Constitution, Article
VII, Section 4)
b. Senator shall not serve for more than 3 consecutive terms (Constitution,
Article VI, Section4)
c. Members of the House of Representatives shall not serve for more than 3
consecutive terms. (Constitution, Article VI, Section 7)
d. Elective officials (except barangay officials) shall not serve for more than 3
consecutive terms (Constitution, Article X, Section 8)

7. Holding more than one office


a. No constitutional right to holding incompatible offices.
b. A person who accepts and qualifies for a second and incompatible office is
deemed to vacate, or, by implication, to resign from the first office.

8. Relationship with the appointing power

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President
shall not, during his tenure, be appointed as members of the Constitutional Commissions, or the
Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus of
offices, including government-owned or controlled corporations and their subsidiaries.
(Constitution, Article VII, Section 13)

a. Appointments should be based solely on merit and fitness, uninfluenced by


any personal or filial consideration.

b. Restriction is not applicable to:


1. Members of family who contracted marriage with anyone in position
already
2. Persons employed in a confidential capacity
3. Teachers

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4. Physicians
5. Members of the Armed Forces of the Philippines

9. Office newly created or the emoluments of which have been increased

Senators and members of the House of Representatives are prohibited from being appointed to any
office which may have been created or the emoluments thereof increased during the term for which
they were elected. (Constitution, Article VI, Section 13)

a. Emolument does not refer to the fixed salary alone but includes such fees
and compensations which the incumbent is entitled to receive by law.

10. Being an elective official

No elective official shall be eligible for appointment or designation in any capacity to any public
office or position during his tenure. (Constitution, Article IX-B, Section 7)

a. Prohibition seeks to minimize the spoils system

b. The disqualification exists only during the tenure in office (versus term of
office) of the elective official.

c. Elective official must forfeit his seat if he decides to accept appointment in


another public office or position during his term.

11. Having been a candidate for any elective position

No candidate who has lost in any election, shall within one year after such election, be appointed to
any office in the Government or any government-owned or controlled corporations or in any of its
subsidiaries. (Constitution, Article IX-B, Section 6)

Members of the Civil Service Commission, Commission on Elections, and Commission on Audit are
also prohibited by the Constitution to become candidates for any elective position in the elections
immediately preceding their appointment. (Constitution, Article IX-B, Section 1(1); Article IX-C,
Section 1(1), Article IX-D, Section 1(1))

12. Under the Local Government Code


a. The following are disqualified from running for any elective local position:
1. Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by 1 year or more of
imprisonment, within 2 years after serving sentence;
2. Those removed from office as a result of an administrative case;

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3. Those convicted by final judgment for violating the oath of allegiance to
the Republic;
4. Those with dual citizenship;
5. Fugitive from justice in criminal or non-political cases here or abroad;
6. Permanent residents in a foreign country or those who have acquired
the right to reside abroad and continue to avail of the same right after
the effectivity of this Code; and
7. Insane or feeble-minded.

b. With respect to the appointment of elective and appointive local officials and
candidates who lost in an election, the Code provides that they cannot,
within 1 year after such election, be appointed to any office in the
government or government-owned or controlled corporations or in any of its
subsidiaries (except losing candidates in barangay elections).

(a) No elective or appointive local official shall be eligible for appointment or designation in any
capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive
local official shall 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.

(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall,
within one (1) year after such election, be appointed to any office in the government or any
government-owned or -controlled corporations or in any of their subsidiaries. (Republic Act No.
7160, Section 94)

Part 3. Acquisition of Right or Title to Office

A. In General
1. Modes of commencing official relations
a. The selection of persons for public office can only be obtained in the manner
prescribed by the Constitution or by law, generally through either:
1. Election
2. Appointment

2. Meaning of Appointment
a. It is the act of designation by the executive officer, board, or body to whom that
power has been delegated, of the individual who is to exercise the powers and
functions of a given office (versus being elected in office by popular vote).
(Borromeo v. Mariano, 41 Phil. 322 (1921)

b. It is equivalent to filling a vacancy in an office. (Conde v. National Tobacco Corp., 15


SCRA 118 (1961)

c. It is the nomination or designation of an individual to an office. (Borromeo v.


Mariano, 41 Phil. 322 (1921)

3. Where appointing power resides

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a. Inherently belongs to the people
1. The selection of persons for public office is primarily a prerogative of the people
but they cannot always be called upon to act immediately when the selection is
necessary. Thus, it can be said that the power of the people to select has been
conferred by them to the Constitution or laws.

b. Entrusted to designated elected and appointed public officials

c. The appointment of public officials is generally belongs to the executive department,


but appointments may also be made by the Congress or the courts to the extent
that it is incident to the discharge of their respective functions. (Government v.
Springer, 50 Phil. 259 (1927)

d. The power to appoint carries with it the power or remove or discipline. (Aguirre, Jr. v.
De Castro, 321 SCRA 95 (1999); Bagatsing v. Herrera, 65 SCRA 434 (1975); Lacson
v. Romero, 84 Phil. 740 (1949)

4. Appointing power generally regarded as an executive function


a. Where power exercised by executive department
1. The power of appointment is intrinsically an executive function. Under the
principle of separation of powers, the creation of a public office is a legislative
function; the appointment of persons to office is an executive function; and the
legislature may confer this appointing power on the President or another public
officer or board within the executive department.

b. Where power exercised by other departments


1. Appointments to office by one department do not involve an encroachment
upon the function of any other branch.

5. Power to appoint discretionary


a. Power of courts to review appointment
1. Unless gravely abused, the courts will not review the appointment or
reappointment of a public officer. It cannot be subject to a write of mandamus
to compel the exercise of such discretion.

2. The appointing power has the prerogative to select, according to his judgment,
persons whom he thinks is best qualified among those who have the necessary
qualifications and eligibilities, provided, however, that it be exercised in good
faith and not in a malicious, harsh, oppressive, vindictive or wanton manner or
out of malice or spite. (Pamantasan ng Lungsod ng Maynila v. Intermediate
Appellate Court, 140 SCRA 22 (1985)

b. Power of the Civil Service Commission to revoke appointment


1. The Commission has no authority to revoke an appointment on the ground that
another person is more qualified for a particular position; neither does it have
authority to direct the appointment of a substitute of its choice or a successful
protestant.

2. The Commission has the power to recall or revoke an appointment initially


approved if such appointment is void from the beginning due to fraud on the
part of the appointee or because it was issued in violation of law. (Debulgado v.
Civil Service Commission, 236 SCRA 184 (1994)

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Concepcion v. Paredes (42 Phil. 599 [1921])

The Philippine legislature has no power to enact laws which expressly or impliedly diminish the
authority conferred by the Act of Congress on the Chief Executive.

Reyes v. Abeleda (22 SCRA 825 [1968])

A person next-in-rank, competent and qualified to hold the position, is entitled to a vacancy
occurring in any competitive or classified position in the government. If there are 2 or more persons
under equal circumstances, seniority must be given preference.

Cuyugkeng v. Cruz (108 Phil. 1147 [1960])

JC questioned the appointment of PC as members of the Board of medical Examiners since his
name was not included in the list made by the Executive Council of the Philippine Medical
Association pursuant to Section 13 of Republic Act No. 2382.

The appointment of PC was valid but the members of the Supreme Court had three views.
The first view believes that Section 14 is unconstitutional because it would constitute a reduction
and impairment of the appointing power vested in the President by the Constitution. Moreover,
inclusion in the list is not one of the requirements in Section 14.

The second view is that Section 13 is unconstitutional but is merely directory in nature.

Third view says that it is not necessary to pass upon the constitutionality of Section 13 or to
determine whether it is merely directory or mandatory. The appointment is sanctioned by Section
15, for in cases of conflicts between 2 provisions of the same statute, the latter one prevails.

6. Power may be absolute or conditional


a. Absolute where the choice of the appointing authority is conclusive if it falls upon
an eligible person. No further consent or approval is necessary.

b. Conditional where assent or approval by some other officer or body, such as the
Commission on Appointments, is necessary to complete the appointment.

7. Restrictions on the power to appoint


a. Generally
1. Persons to be appointed to a public office should possess the required
qualifications and be selected solely with a view to the public welfare.

b. Under the Constitution


1. Appointments by the President are subject to the following Constitutional
provisions:
a. The spouse and relatives by consanguinity of affinity within the fourth civil
degree of the President shall not, during his tenure be appointed as
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Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of
bureaus or offices, including government-owned or controlled corporations
and their subsidiaries. (Constitution, Article VII, Section 13)

b. Two months immediately before the next presidential elections up to the


end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public
safety. (Constitution, Article VII, Section 15)

c. The Congress, may, by law, vest the appointment of other officers lower in
rank in the President alone, in the court, or in the heads of departments,
agencies, commissions or boards. (Constitution, Article VII, Section 16)

d. The Supreme Court shall have the following powers: x x x Appoint all
officials and employees of the judiciary in accordance with the Civil Service
Law. (Constitution, Article VIII, Section 5(6))

e. The Members of the Supreme Court and judges of lower court shall be
appointed by the President from a list of at least three nominees prepared
by the Judicial and Bar Council for every vacancy. Such appointments need
no confirmation. For the lower courts, the President shall issue the
appointments within ninety days from the submission of the list.
(Constitution, Article VIII, Section 9)

f. The Constitutional Commissions shall appoint their officials and employees


in accordance with law. (Constitution, Article IX-A, Section 4)

g. The Members of the Civil Service Commission, Commission on Elections,


and Commission on Audit shall be appointed without reappointment x x
x. Appointment to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity. (Constitution, Article IX-B, Section 1(2);
Article IX-C, Section 1(2); Article IX-D, Section 1(2).

h. No candidate who has lost in any election shall, within one year after such
election, be appointed to any office in the government or any government-
owned or controlled corporations or in any of their subsidiaries.
(Constitution, Article IX-B, Section 6)

i. The officials and employees of the Office of the Ombudsman, other than
the Deputies, shall be appointed by the Ombudsman according to the Civil
Service Law. (Constitution, Article XI, Section 6)

j. The Ombudsman and his Deputies shall be appointed by the President


from a list of at least six nominees prepared by the Judicial and Bar Council,
and from a list of three nominees for every vacancy thereafter. Such
appointments shall require no confirmation. All vacancies shall be filled
within three months after they occur. (Constitution, Article XI, Section 9)

c. Under existing laws

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1. Restrictions on the power to appoint are normally found in the provisions
prescribing the qualifications and disqualifications to a public office. Unless
prohibited by the Constitution, Congress may add qualifications or
disqualifications to those provided in the Constitution but may not supersede
them.

8. When appointment deemed complete


a. Not subject to confirmation
1. When the power of appointment is absolute, the formal evidence of appointment
(i.e., the commission) may issue at once.

b. Subject to confirmation
1. Where the confirmation of some other officer of body is required, the
commission can be issued only when confirmation is obtained.

c. Approval by the Civil Service Commission


1. Appointments to positions in the Civil Service must be submitted to the
Commissioner for approval. The attestation of the CSC merely assures the
eligibility of the appointee and is actually not necessary to complete the
appointment.

d. Effects of completed appointment


1. Appointing officers power over the office is terminated in all cases where by law
the officer is not removable by him. The right to the office is in the appointee.
Appointment to a position already filled cannot be made.

9. Acceptance of appointment precedes acceptance by the appointee and is entirely


distinct from it
a. Not necessary to completion or validity of appointment
1. When the appointing officer acts within his authority, the appointment is
complete whether it is accepted or refused.

b. Necessary to possession of office


1. Acceptance is not necessary to give validity to an appointment but it is
necessary to enable the appointee to have full possession, enjoyment, and
responsibility of an office. (Magana v. Auditor-General, 107 Phil. 900 (1960)

10. Form of acceptance


a. Express may be done verbally, in writing, by taking the oath of office, or posting of
bond.

b. Implied when, without formal acceptance, the appointee exercises or performs the
duties and functions of an office.

11. Obligation of elected or appointed individual to accept office


a. Generally not subject to compulsion
1. A person may not be compelled to accept a public office.

2. Exceptions:
a. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the
fulfillment thereof, all citizens may be required, under conditions provided by

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law, to render personal military or civil service. (Constitution, Article II,
Section 4)

b. The penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both,
shall be imposed upon any person who, having been elected by popular
election to a public office, shall refuse without legal motive to be sworn in or
to discharge the duties of said office. (Revised Penal Code, Article 234)

c. Male inhabitants of a certain age may be required to assist in preserving the


peace and order of the community. (U.S. v. Pompeya, 31 Phil. 245 (1915))

b. Obligation in the nature of a social duty


1. Every person who enters into civil society must have a social duty to share in the
public burdens by accepting and performing the duties of public offices to which
he may be lawfully chosen.

12. Necessity of written appointment


a. View that appointment should be evidenced by a writing
1. The appointment must be evidenced in a way that the public may know when
and in what manner the duty has been performed because appointment to office
affects the public and not merely private rights.

b. Contrary view
1. The right of the appointee to be inducted depends upon the fact of
appointment, and not on his ability to establish the fact of appointment by
production of the written appointment where the law does not provide a specific
manner in which the appointment shall be made.

Venecia v. Peralta (8 SCRA 692 [1963])

Venecia was appointed acting chairman of NAWASA in 1961 by the President. He, however, said
that he was appointed ad interim, and took his oath of office as such. The Commission on
Appointments confirmed the appointment. Less than a year after, Peralta was appointed ad interim
by the new President to the same position.

Venecias oath and confirmation did not imply a prior ad interim appointment. The only reliable
evidence on the matter is that Venecia was appointed only as acting Chairman, and this could not
ripen into a permanent one even with the confirmation by the Commission on Appointments
because there was no valid nomination or recess of appointment. It was incumbent upon Venecia to
prove that he was indeed appointed ad interim, and the better rule requires some kind of written
memorial that could render title to public office indubitable.

13. Revocation of appointment


a. Where appointment final and complete
1. General rule is that once appointment to an office is made and complete, it is
not subject to reconsideration or revocation, except if the officer is removable at
the will of the appointing power.

b. Where appointee has assumed position


1. The moment an appointee assumes a position in the civil service under a
completed and approved appointment, he acquires a legal, not merely an
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equitable right, which is protected by statute and the Constitution and can only
be revoked or removed for cause and with previous notice and hearing.

c. Where protestant more qualified than appointee


1. As long as the appointee possesses the minimum required qualifications, he
cannot be removed even if protestant is more qualified than the first appointee.

B. Appointments by the President


1. Power of appointment of the President
a. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forced from the rank of colonel
or naval captain and other officers whose appointments are vested in him in this
Constitution. He shall also appoint other officers of the Government whose
appointments are not otherwise provided by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in the courts, in the heads of
departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress. (Constitution, Article VII, Section 16)

b. Four groups of officials whom the President is authorized to appoint:


1. Heads of executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from the rank of colonel or naval captain,
regular members of the JBC, SC and judges, Chairman and Commissioners of
the COMELEC and Commission on Audit, Members of the regional consultative
commission

2. All other officers whose appointments are not otherwise provided by law.

3. Those whom the President may be authorized by law to appoint.

4. Other officers lower in rank whose appointments the Congress, by law, vests in
the President alone.

2. Confirmation of appointments by Commission on Appointments


a. Only the officers in the first group above require the consent or confirmation of the
Commission on Appointments. Congress cannot, by law, require confirmation of
appointments of other officers.

b. The President appoints the members of the SC, judges of the lower courts including
the Sandiganbayan, the Tanodbayan and his deputies from a list made by the
Judicial and Bar Council. These do not require confirmation of the Commission on
Appointments. Same rule applies if the Vice-President is appointed to a cabinet
position.

c. The Administrative Code also vests in the President the power to appoint the
Chairman and members of the Commission on Human Rights, which is likewise not
subject to confirmation of the Commission on Appointments. (Administrative Code,

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Book V, Chapter 13, Title II, Subtitle A, Section 4; Bautista v. Salonga, 172 SCRA
160 (1989))

3. Appointments by other officials


a. Article VII, Section 16 of the Constitution vests in the courts, heads of departments,
agencies, commissions, or boards the power to appoint officers lower in rank in their
respective offices. Lower in rank refers to officers subordinate to those
enumerated officers upon whom the power of appointment may be vested.

4. Kinds of Presidential appointments


a. Regular
1. Those appointments made while Congress is in session.
2. These are actually mere nominations which are subject to confirmation by the
Commission on Appointments.

b. Ad interim
1. Those made while Congress is not in session or is in recess.

c. Permanent
1. Those which subsist until lawfully terminated.

d. Temporary or Acting
1. Those which last until a permanent appointment is made.

Appointments which are required to be submitted to the Commission on


Appointments are either regular or ad interim and are permanent in nature.

5. Ad interim appointments
a. These are appointments made by the President while Congress is in recess, thus,
the Commission on Appointments may only deliberate upon such appointments
when Congress goes into session.

b. The President is usually aided by the Commission on Appointments advice when it


comes to appointments. In the case of ad interim appointments, however, the
President acts alone and the system of checks and balances vital to our system of
government is not in place.

c. Ad interim appointments, however, are necessary due to the existence of situations


where there is a clear and present urgency caused by an impending obstruction or
paralysis of the functions assigned to office to be filled if no immediate appointment
is made.

d. An ad interim appointment is permanent in nature and not a mere temporary or


acting appointment even if it is subject to confirmation by the Commission on
Appointments. However, it may be recalled or revoked by the President before
confirmation.

Rosales v. Yenko (15 SCRA 766 [1965])

R was appointed ad interim Chairman of the Board of Examiners, but his appointment papers were
not released to him. The Civil Service Commission informed him that his appointment had been

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recalled and the President instead appointed Y as acting Chairman.

The ad interim appointment of R is invalid, illegal and does not subsist. Since his appointment was
never released, it is incomplete and there was in fact and in law no ad interim appointment that
could be validly transmitted to and acted upon by the Commission on Appointments.

6. Temporary or acting appointments


a. Generally, the power to appoint vested in the President includes temporary or acting
appointments, unless otherwise provided by law. (Cabiling v. Pabualan, 14 SCRA
274 (1965))

b. Since acting appointments are temporary, they cannot be validly confirmed by the
Commission on Appointments because confirmation presupposes a valid
nomination of ad interim appointment. (Valencia v. Peralta, 8 SCRA 692 (1963))

c. A person appointed in an acting capacity has no personality to bring a quo warranto


action against the permanent appointee to the position as he is not entitled to the
office. (Sevilla v. Court of Appeals, 209 SCRA 637 (1992); Rules of Court, Rule 66,
Section 6)

d. A person appointed in an acting capacity has no fixed tenure of office and his
appointment can be terminated at the pleasure of the appointing power. However,
such appointments cannot be used to circumvent the security of tenure principle in
the Constitution and Civil Service Law. (Civil Service Commission v. Darangina, 513
SCRA 648 (2007); Gayatao v. Civil Service Commission, 210 SCRA 183 (1992))

e. An unqualified person cannot be appointed even in an acting capacity. (Ignacio v.


Banate, Jr., 153 SCRA 546 (1987))

7. Designations
a. Designation is merely the imposition of new or additional duties upon an officer to
be performed by him in a special manner while performing the functions of his
permanent office.

b. It presupposes that the officer is already in service by virtue of an earlier


appointment. It is revocable and temporary in character and does not confer
security of tenure.

c. It does not entitle the officer designated to additional benefits or the right to claim
salary attached to the position. Neither can the Commission on Appointments
validly act upon it, as there is no appointment issued. (Dimaandal v. Commission on
Audit, 291 SCRA 322 (1998)

8. Steps in the appointing process


a. Nomination
1. It is the exclusive prerogative of the President and Congress may only limit such
prerogative in cases where concurrence of the Commission on Appointments is
needed and where legislature is vested with the power to prescribe the
qualifications to a given appointive office. (Manalang v. Quitoriano, 94 Phil. 903
(1954))

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Rafael v. EACIB (21 SCRA 336 [1967])

Republic Act No. 3137 created the Embroidery and Apparel Control and Inspection Board (EACIB),
Section 2 of which provides the composition of the Board. The validity of the Act was attacked on
the ground that while Congress may create an office, it cannot specify who the President can
appoint therein.

Section 2 of Republic Act No. 3137 does not deprive the President of his power to appoint. Where
no appointments are necessary, and officials occupy another position in an ex-oficio capacity, the
President is not deprived of his constitutional power to make appointments even if Congress
prescribes which officials should occupy the said ex-oficio positions.

b. Confirmation
1. The power to confirm or reject certain appointments belongs to Congress
through the Commission on Appointments since it is a check on the executive.

2. A confirmation cannot be reconsidered after the President has been notified of


the confirmation and has completed the appointment by issuing a commission
the appointee even if the rules of the confirming body provide for
reconsideration.

c. Issuance of commission
1. Commission is the written authority from a competent source given to the
officer as his warrant for the exercise of the powers and duties of the office. It is
the written evidence of the appointment.

2. When a person is elected to office, his right as established as a result of the


election and does not depend upon the issuance of a commission. Issuance of
a commission to an elected officer is merely a ministerial act and not a part of
the act of appointment. Instead, the elected officer is entitled to a certificate of
election.

C. Appointments in the Civil Service


1. The Civil Service System
a. Scope - all branches, subdivisions, instrumentalities and agencies of the
government including GOCCs with original charter. This covers the administrative
personnel of the entire government system, both national and local, including the
military.

b. Purpose to enable the national and local government and all its instrumentalities
and agencies to render more efficient services to the public by enabling them to
obtain efficient public servants. The Civil Service system seeks to establish a merit
system of fitness and efficiency as the basis of appointments.

2. Classifications of positions in the Civil Service


a. Career Service
1. Characteristics of career service:

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a. Entrance is based on merit and fitness which is determined by competitive
examinations or are based on highly technical qualifications

b. Security of tenure

c. Opportunity for advancement to higher career positions

2. Career service includes:


a. Open career positions for appointments requiring prior qualification in an
appropriate examination;

b. Closed career positions which are scientific or highly technical in nature.


These include faculty and academic staff of state colleges and universities,
and scientific and technical positions in scientific or research institutions
which shall establish and maintain their own merit system

c. Positions in the Career Executive Service (i.e., Undersecretary, Assistant


Secretary, Bureau Director, Assistant Bureau Director, Chief of Department
Service, and other officers of equivalent rank as may be identified by the
Career Executive Service Board and appointed by the President);

d. Career officers other than those in the Career Executive Service who are
appointed by the President (i.e., Foreign Service Officers in the Department
of Foreign Affairs);

e. Commissioned officers and enlisted men of the Armed Forces

f. Personnel of government-owned and controlled corporations whether


performing governmental or proprietary functions who do not fall under non-
career services; and

g. Permanent laborer, whether skilled, semi-skilled, or unskilled.

b. Non-Career Service
1. Characteristics of non-career service:
a. Entrance on bases other than those of the usual test of merit and fitness

b. Tenure which is limited to a period specified by law or coterminous with that


of the appointing authority or subject to his pleasure or limited to the
duration of a particular project

2. Non-career service includes:


a. Elective officials and their personal or confidential staffs

b. Department heads and other officers of cabinet rank and their staffs

c. Chairmen and members of commissions and boards with fixed terms of


office and their staffs

d. Contractual personnel (i.e., whose employment in the government is in


accordance with a special contract to undertake a specific work or job
requiring special or technical skills not available in the employing agency,

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within a specific period and shall not exceed 1 year, and performs with
minimum direction and supervision)

e. Emergency and seasonal personnel (Presidential Decree No. 807 (1975),


Sections 5 and 6; Executive Order No, 292, Book V, Title I, Sections 7 and 9)

f. Casual employees (employment is not permanent but occasional,


unpredictable, sporadic and brief in nature) (Chua v. Civil Service
Commission, 206 SCRA 65 (1992))

CSC v. Pililla Water District (G.R. No. 190147, 5 March 2013)

The position of General Manager of a water district is primarily confidential in nature. Thus, the
General Manager of a water district who is appointed on coterminous status may serve or hold office
for a maximum of six years, which is the tenure of the appointing authority, subject to reappointment
for another six years unless sooner removed by the BOD for loss of trust and confidence, or for any
cause provided by law and with due process. This, however, does not convert the appointment from
co-terminous to permanent.

3. Classes of positions in the career service


a. Three major levels of positions in the career service appointment requiring
examinations:
1. Clerical, trades, crafts, and custodial service positions

2. Professional, technical, and scientific positions

3. Career Executive Service (officials of this level have no security of tenure and
may be removed anytime unless they have secured an eligibility from the Career
Executive Service Board (CESB) and have been issued the Career Executive
Service Officer (CESO) rank by the President upon recommendation of the
CESB)

b. Requirements of competitive examinations


1. Entrance to the first two levels are through competitive examinations.

2. Entrance to the third level is prescribed by the CESB and does not require
previous qualifications to the lower level.

3. For promotion to a higher position in one or more related occupational groups,


no examination is required within the same level. However, the candidate for
promotion must have previously passed the examination for the level.
(Presidential Decree No. 807 (1975), Section 7; Executive Order No, 292, Book
V, Title I, Section 8)

4. Constitutional classification
a. Competitive - Those whose appointments are made according to merit and fitness
as determined by competitive examinations.

b. Non-competitive Those whose appointments do not take into account merit and
fitness as determined by competitive examinations. These include positions which
are policy-determining, primarily confidential, or highly technical in nature.
(Constitution, Article XI-B, Section 2(2))
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5. Determination of merit and fitness by competitive examinations
a. Generally, the selection of any appointee to any government position shall be made
only according to merit and fitness to be determined, as far as practicable, by
competitive examinations to perform duties and assume the responsibility of the
position, without regard to any other consideration such as sex, color, social status,
religion, or political affiliation.

b. In order to be competitive, the examination must be given under an objective


standard of grading and must conform to measures and standards.

c. Denominating an examination as competitive does not make it competitive. The


examination must be competitive in substance, not merely in form.

d. Oral examinations may be deemed competitive where tests of manual or


professional skill are necessary.

6. Exemption from rule of non-competitive positions


a. Though policy-determining, primarily confidential and highly technical positions are
exempt from competitive examinations and still enjoy the operation of the principle:
no officer or employee in the Civil Service shall be removed or suspended except
for cause provided by law.

b. Whether an administrative position is primarily confidential, policy-determining, or


highly technical is the nature of the functions attached to the position.

c. Policy determining position


1. Its occupant is vested with the power of formulating policies for the government
or any of its agencies, subdivisions or instrumentalities.

d. Primarily confidential position


1. Its occupant enjoys more than the ordinary confidence in his aptitude of the
appointing power but bears primarily such close intimacy which insures freedom
of intercourse without embarrassment of freedom from misgiving of betrayal of
personal trust on confidential matters of the State. More than ordinary
confidence is required.

2. A position may be considered primarily confidential when the President, upon


recommendation of the Civil Service Commissioner, has declared it to be.
(Salazar v. Mathay, 73 SCRA 275 (1976))

3. It is the nature of the position which finally determines whether a position is


primarily confidential.

4. Primarily confidential appointee is not subject to removal at the pleasure of the


appointing authority. Instead, termination of such an appointees official relation
can be justified on the ground of loss of confidence, which involves no removal
but merely the expiration of the term of office. (Hernandez v. Villegas, 14 SCRA
544 (1965))

5. The provincial administrator position has been classified into a primarily


confidential, non-career position through R.A. No. 7160. The nature of a position
may change by law according to the dictates of Congress. The right to hold a
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position, on the other hand, is a right that enjoys constitutional and statutory
guarantee, but may itself change according to the nature of the position.
Congress has the power and prerogative to introduce substantial changes in the
provincial administrator position and to reclassify it as a primarily confidential,
non-career service position. When done in good faith, these acts would not
violate a public officers security of tenure, even if they result in his removal from
office or the shortening of his term. (Provincial Government of Camarines Norte
v. Gonzales, G.R. 185740, 23 July 2013).

e. Highly-technical position Its occupant is required to posses skills or training in the


supreme or superior degree.

7. Qualification standards in the Civil Service


a. These are the minimum requirements for a class of position in terms of education,
training, experience, civil service eligibility, physical fitness, and other qualities
required for successful performance. The degree of qualifications is determined by
the appointing authority on the basis of qualification standards for the particular
position.

b. Use of qualification standards


1. As basis for civil service examinations for positions in the career service

2. As guides in the appointment and other personnel actions in the adjudication of


protested appointments

3. In determining training needs

4. As aid in the inspection and audit of the agencies personnel work programs
(Presidential Decree No. 807, Section 20)

c. Establishment, administration and maintenance of qualification standards


1. The department or agency, with the assistance and approval of the Civil Service
Commission and in consultation with the Wage and Position Classification
Office, is responsible for the establishment, administration and maintenance of
qualification standards.

d. Approval of qualification standards


1. Approval of the Civil Service Commission is required by law because it is the
governments central personnel agency entrusted with the enforcement of laws
relative to the selection, promotion, and discipline of civil servants.

e. Offsetting of deficiencies
1. When necessary, education, experience or training may be used
interchangeably to offset deficiencies, except the required eligibility. The
decision as to when the conditions give rise to necessity to interchange
education with experience or training and vice-versa rests upon the sound
discretion of the appointing authority.

8. Kinds of appointment in the career service


a. Permanent
1. One which is issued to a person who meets all the requirements for the position
including the appropriate eligibility prescribed.

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2. A permanent appointee is entitled to security of tenure and his appointment
lasts until lawfully terminated.

b. Temporary or acting
1. One which is issued to a person who meets all the requirements for the position
to which he is being appointed except the appropriate civil service eligibility.

2. His appointment shall not exceed 12 months and he may be replaced sooner if
a qualified civil service eligible becomes available. A temporary appointment
does not become permanent just because the appointee is allowed to continue
in it for a number of years.

9. Instances of temporary appointment


a. Where the appointee does not possess civil service eligibility.

b. Where the appointee has civil service eligibility but different from that which is
appropriate to the position for which he was appointed.

c. Where the appointment is made by the President to fill an executive office during the
absence or incapacity of the incumbent.

d. Where the appointee has not passed any civil service examination.

e. Where the new appointment is still subject to a condition and compliance has not
been made yet. (i.e., subject to the consent and approval of the municipal council
(pursuant to Republic Act No. 1551, Section 1)

f. Where a new incumbent has been appointed to fill the position of a regular
employee who has been illegally suspended or dismissed. There is no vacancy in
this case and the illegally dismissed employee is entitled to be reinstated to his
position.

g. Where a person is designated as an officer in charge

h. Where the appointment is made at the pleasure of the appointing power

10. Separation of temporary employees


a. A temporary appointment can be terminated or withdrawn at the pleasure of the
appointing power, without notice of hearing, or at a moments choice, and
regardless of the grounds or reasons. The appointee can be transferred or
reassigned without violating the Constitutional provision on security of tenure.

b. The Constitution mandates, however, that temporary employees in the government


shall be given such protection as may be provided by law. This aims to protect
temporary appointees from indiscriminate dismissals and to make sure that their
separation or replacement is made only for justifiable causes.

11. Qualification in an appropriate examination


a. As a general rule, qualification in an appropriate examination is required for
appointment to first and second level positions in the career service.

b. Temporary appointment of non-eligibles in the absence of eligibles

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1. Where there is an eligible available, no person who is not an eligible for the
position may be appointed even in a temporary capacity to any vacant position
in the career service, except when the immediate filling of the vacancy is
urgently required in the public interest or when the vacancy is not permanent.

c. Appointment to a position requiring lower eligibility


1. A person with civil service eligibility acquired by successfully passing an
examination shall be qualified for a position requiring a lower eligibility if he
possesses the other requirements for appointment to such position.

d. Issuance / revocation of certificate of eligibility


1. The Civil Service Commissions power to issue a certificate of eligibility carries
with it the power to revoke the certificate for being null and void, and may do so
motu proprio without notice and hearing to the examinee concerned, applying
the rule of res ipsa loquitor. No evidentiary hearing is required if the case simply
involves a rechecking of the examination papers.

12. Approval / recall of appointments by the Civil Service Commission


a. Appointments required to be approved
1. General rule: The Civil Service Commission must approve all appointments,
whether original or promotional, to positions in the civil service and disapprove
those where the appointees do not possess the appropriate eligibility or required
qualifications.

2. Exception: Presidential appointments, members of the Armed Forces of the


Philippines, police forces, firemen, and jail guards.

b. Right of appointee to a hearing in case of disapproval


1. Where the Civil Service Commission disapproves an appointment, the appointee
need not be previously heard since the action does not involve the imposition of
an administrative penalty.

2. The appointee is given the opportunity to be heard by filing a motion for


reconsideration of the disapproval.

3. The Civil Service Commission may recall, on its own initiative, the erroneous
initial approval of an appointment and review the same anew.

c. Effectivity of appointment until disapproval


1. An appointment shall take effect immediately upon issue by the appointing
authority if the appointee assumes his duties immediately and shall remain
effective until disapproved by the Civil Service Commission.

2. An appointment to the civil service must be submitted to the Civil Service


Commission for approval within 30 days from issuance by the appointing
authority to determine whether the appointee is qualified to hold the position
and whether the rules in the process of appointment were followed. If not
submitted and absent the favorable certification or approval, the appointment is
ineffective and the appointment can still be recalled or withdrawn by the
appointing authority.

d. Criterion to be employed

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1. Whether or not the appointee possesses the appropriate civil service eligibility or
the required approved qualifications to an office is used by the Civil Service
Commission as the sole criterion when it acts on appointments.

e. Extent of Commissions authority


1. The Civil Service Commissions authority is restricted to reviewing the
appointments and approving and disapproving them based on the requirements
of the Civil Service Law.

2. The Civil Service Commission does not have the power to make the
appointment itself or to direct the appointing authority to change the
employment status of an employee (e.g. from temporary to permanent).
(Province of Camarines Sur v. Court of Appeals, 246 SCRA 281 (1995))

3. The Civil Service Commission has no authority to revoke an appointment on the


ground that another is more qualified, but it may order reinstatement of an
illegally demoted or dismissed employee. (Gayatao v. Civil Service Commission,
201 SCRA 183 (1992); Cabagnot v. Civil Service Commission, 223 SCRA 59
(1993)).

f. Attestation of appointment
1. Purpose: to determine whether the appointee possesses the requisite civil
service eligibility.

2. When the appointee is qualified, and all other requirements have been satisfied,
the Civil Service Commission has no choice but to attest the appointment.
Once this function is discharged, the Commissions participation in the
appointment process ceases.

g. Keeping of records of all appointments


1. The Civil Service Commission is required to keep a record of all appointments of
all officers and employees in the civil service.

h. Recall of appointment
1. The Civil Service Commission is authorized to recall an appointment initially
approved, but only when such appointment and approval are proven to be in
disregard of the applicable provisions of the Civil Service Law and regulations.

i. Grounds for recall (Omnibus Implementing Regulations of the Revised


Administrative Code, Rule VI, Section 20):
1. Non-compliance with the procedures / criteria provided in the agencys Merit
Promotion Plan;

2. Failure to pass through the agencys Selection / Promotion Board;

3. Violation of the existing collective bargaining agreement between management


and employees relative to promotion; or

4. Violation of other existing civil service law, rules and regulations.

13. Appointment through certification


a. An appointment through certification to a position in the civil service is issued to a
person who has been selected from a list of qualified persons certified by the Civil
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Service Commission from an appropriate register of eligibles and who meets all the
other requirements of the position.

b. All such persons must undergo a 6-month probationary period and thorough
character investigation in order to acquire permanent civil service status.

D. Vacancy
1. Meaning of vacancy
a. There is vacancy when an office is empty and without a legally qualified incumbent
appointed or elected to it with a lawful right to exercise its powers and perform its
duties.

2. Existence of physical vacancy not essential


a. An office may be vacant when it is occupied by one who is not a de jure officer, as
by mere usurper, or by one who is holding over.

3. Appointment to non-vacant position


a. No person may be appointed to an office which is not yet vacant. Otherwise, such
appointment is null and void ab initio.
b. Where a regular employee is illegally dismissed, transferred or demoted, his position
does not become vacant.

4. Classification of vacancy
a. Original When an office is created and no one has been appointed to it yet.

b. Constructive When the incumbent has no legal right or claim to continue in office
and can be legally replaced by another functionary.

c. Accidental When the incumbent having died, resigned, or been removed, there is
no one in esse discharging the duties of the office.

d. Absolute When the term of an incumbent having expired and the latter not having
held over, no successor is in being who is legally qualified to assume the office.

5. Causes of vacancy
a. Death, permanent disability, removal from office, or resignation of the incumbent, if
illegally suspended or dismissed, the office is not vacant. Resignation or removal
must be valid so that the office may be declared vacant.

b. Abandonment, expiration of term, conviction of a crime, impeachment, conviction,


acceptance of incompatible office, creation of a new office, reaching the age limit,
and recall, or by failure of persons chosen for office to accept or qualify for the
office.

6. Filling of anticipated vacancies


a. Generally appointment legal
1. A prospective appointment to fill an anticipated vacancy in public office, made
by a person or body which, as then constituted, is empowered to fill the vacancy
when it arises, is legal appointment and vests title to the office in the appointee.

b. Where appointment to take effect after expiration of appointing power

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1. Appointing power cannot forestall the right and prerogatives of their successors
by appointing successors to the offices expiring and after its power to appoint
itself has expired.

E. Qualifying to Office
1. Qualification (as an act) to an office
a. The person appointed or elected to a public office is usually required by law, before
entering upon the performance of his duties, to do some act by which he shall
signify his acceptance of the office and his undertaking to execute the trust confided
in him. This generally consists in taking of an oath, or giving an official bond.

2. Effect of failure to qualify


a. Failure or neglect to qualify at all would be deemed evidence of a refusal of the
office. However, a failure or neglect to qualify within a period prescribed, if
afterwards supplied, would not be deemed a rejection of the office.

b. A person appointed to an office who fails to qualify does not become an officer de
jure; he may be regarded as an officer de facto.

3. Oath of office for public officers and employees


a. Oath is an outward pledge whereby one formally calls upon God to witness to the
truth of what he says or to the fact that he sincerely intends to do what he says.

b. Under the Constitution

Before they enter on the execution of their office, the President, Vice-President, or the Acting
President shall take the following oath or affirmation:

I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President
(or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and consecrate to myself to the service of the Nation. So
help me God. (Constitution, Article VII, Section 5)

Before they enter on the execution of their office, the President, Vice-President, or the Acting
President shall take the following oath or affirmation:

I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President
(or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and consecrate to myself to the service of the Nation. So
help me God. (Constitution, Article VII, Section 5)

All public officers and employees shall take an oath or affirmation to uphold and defend this
Constitution. (Constitution, Article IX-B, Section 4)

All members of the armed forces shall take an oath or affirmation to uphold and defend this
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Constitution. (Constitution, Article XVI, Section 5(1))

c. Under the Administrative Code of 1987

All public officers and employees of the government including every member of the armed forces
shall, before entering upon the discharge of his duties, take an oath or affirmation to uphold and
defend the Constitution; that he will bear true faith and allegiance to it; obey the laws, legal orders
and decrees promulgated by duly constituted authorities; that he will well and faithfully discharge to
the best of his ability the duties of the office or position upon which he is about to enter; and that he
voluntarily assumes the obligation imposed by his oath of office, without mental reservation or
purpose of evasion. Copies of the oath shall be deposited with the Civil Service Commission and
the National Archives. (Administrative Code of 1987 (Executive Order No. 292), Book I, Chapter 10,
Section 40)

d. Under the Local Government Code

All elective and appointive local officials and employees shall, upon assumption to office, subscribe
to an oath or affirmation of office in the prescribed form. The oath or affirmation of office shall be
filed with the office of the local chief executive concerned. A copy of the oath or affirmation of office
of all elective and appointive local officials and employees shall be preserved in the individual
personnel records filed under the custody of the personnel office, division, or section of the local
government unit concerned. (Republic Act no. 7160, Section 92)

4. Necessity of oath of office


a. General rule: Oath of office is a qualifying requirement for a public office but it is not
indispensable. It is merely incident to the office and constitutes no part of the office
itself.

b. Exception: Oath taking is mandatory for the President, Vice-President, or the Acting
President.

5. Officers authorized to administer oath


a. Officers with general authority to administer oath:
1. Notaries public
2. Members of the judiciary
3. Clerks of court
4. Secretary of either House of the Congress
5. Secretaries of departments
6. Bureau directors
7. Registrars of deeds
8. Provincial governors
9. Lieutenant governors
10. City mayors

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11. Any other officer in the service of the Philippines whose appointment is vested in
the President

b. Oaths may also be administered by another officer whose duties, as defined by law
or regulation, require presentation to him of any statement under oath.

6. Public officers and employees required to give bonds


a. Accountable public officers Those who are entrusted with the collection and
custody of public money.

b. Public ministerial officers Those whose actions may affect rights and interest of
individuals.

7. Nature of official bonds


a. It is in the nature of an indemnity bond rather than penal or forfeiture bond.

b. It is an obligation binding the sureties to make good the officers default.

c. It creates a primary contractual obligation between the injured party and the officer
and surety.

d. It is merely a collateral security for the performance of the officers duty.

8. Necessity of giving official bonds


a. Requirement, a mere incident of office
1. The furnishing of a bond is a mere incident of office. Although the bond and
oath requirements are not absolute criterion to distinguish an office, it may be
considered with others in determining the character of the position in question.

b. Where time prescribed within which to give bond


1. It is the statute that fixes the time the bond should be given after the
appointment. The failure to give the bond does not ipso facto work as a
forfeiture to the office, but it continues as a ground for such.

2. However, the rule does not apply when the giving of the bond within the time
prescribes is expressly made a condition precedent to the right to the office.

F. De Facto Officers
1. The de facto doctrine
a. It is the principle which holds that a person who, by the proper authority, is admitted
and sworn into office is deemed to be rightfully in such office until, by judicial
declaration in a proper proceeding, he is ousted therefrom, or his admission thereto
is declared void.

2. Basis and reason for the doctrine


a. The doctrine arises from the fear of chaos that would result from multiple and
repetitious suits challenging every action taken by every official whose claim to
office could be open to question, and seeks to protect the public by insuring the
orderly functioning of the government despite technical defects in title to office.

3. De facto officer defined


a. One who has the reputation of being the office he assumed to be and yet is not a
good officer in the point of law.
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b. One where the duties of the office are exercised:
1. Without a known appointment or election, but under such circumstances of
reputation or acquiescence as were calculated to induce people, without injury,
to submit to or invoke his action, supposing him to be the officer he assumed to
be; or

2. Under color of a known and valid appointment or election, but where the officer
has failed to conform to some precedent requirement or condition, such as to
take an oath, give a bond, or the like; or

3. Under color of a known election or appointment, void because the officer was
not eligible, or because there was a want of power in the electing or appointing
body, or by reason of some defect or irregularity in its exercise, such ineligibility,
want of power, or defect being unknown to the public officer; or

4. Under color of an election or appointment by or pursuant to a public,


unconstitutional law, before the same is adjudged as such. (Luna v. Rodriguez,
37 Phil. 180 (1917))

4. De jure officer defined


a. One who has the lawful right to the office in all respects, but who has either been
ousted from it, or who has never actually taken possession of it.

5. Requirements to become officer de jure


a. He must possess the legal qualifications for the office in question;

b. He must be lawfully chosen to such office; and

c. He must have qualified himself to perform the duties of such office according to the
mode prescribed by the Constitution or law.

6. Officer de jure and officer de facto distinguished

Officer de Jure Officer de Facto


Rests on right Rests on reputation
Has lawful right to title to the office Has the possession and performs the duties
under color of right or authority without being
technically qualified in all points of law to act
Cannot be removed in a direct proceeding May be ousted in a direct proceeding against
him.

a. There can be no officer, either de jure or de facto, where there is no office to fill.
While there can be no de facto officer where there is no de jure office, there may be
a de facto officer in a de jure office. (Government of the Philippine Islands v.
Springer, 50 Phil. 259 (1927); Turanda v. Sandiganbayan, 249 SCRA 342 (1995))

Funa v. Agra (G.R. No. 191644, 19 February 2013)

A de facto officer is one who derives his appointment from one having colorable authority to appoint,
if the office is an appointive office, and whose appointment is valid on its face. He may also be one

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who is in possession of an office, and is discharging its duties under color of authority, by which is
meant authority derived from an appointment, however irregular or informal, so that the incumbent is
not a mere volunteer. Consequently, the acts of the de facto officer are just as valid for all purposes
as those of a de jure officer, in so far as the public or third persons who are interested therein are
concerned.

7. Usurper or intruder defined


a. One who takes possession of the office and undertakes to act officially without color
of right or authority, either actual or apparent. He is not an officer at all for any
purpose.

b. Usurper may become an officer de facto if his assumption to the office is


acquiesced in, as when he continued to act in office for such a long time as to give
rise to the presumption that he has been duly appointed or elected.

8. Officer de facto and usurper distinguished

Officer de Facto Usurper


Has a color of right or title to the office Has neither lawful title nor color of right or title to
the office
The public does not know his lack of title or He simply assumes to act as an officer where
authority to exercise his functions the public knows or ought to know that he is
such a usurper
Can be removed in a direct proceeding against Can be ousted at any time in any proceeding
him
All legitimate acts in the exercise of his authority Acts are absolutely null and void
are valid insofar as the rights of the public and
third persons are concerned

Barte v. Dichoso (47 SCRA 77 [1972])

After having qualified and extended an ad interim appointment by the President as Acting Vice-
Mayor, Barte performed the duties and functions of the office. His appointment was bypassed by
the National Assembly. Subsequently, the Executive Secretary informed Barte that a new
designation was under consideration, for which reason the respondent City Treasurer denied
payment of Bartes salary.

The Supreme Court ruled that Barte has no right to continue in office and receive his salary because
his ad interim appointment ceased or expired upon the adjournment of the session of the National
Assembly. Worse, he was informed by the Executive Secretary that his designation as Acting Vice-
Mayor ceased upon adjournment of the regular session of the National Assembly and that a new
designation was still under consideration. A public officer having the capacity to act on behalf of the
government in whom the exercise of sovereignty is vested has to be chosen in the manner and form
provided by law. Otherwise, he would be a plain usurper of official functions.

9. Double occupancy of a single office


a. If there is only one officer provided by law, there cannot be an officer de jure and an
officer de facto in possession of the same office at the same time. Neither can there
be 2 officers de facto in possession of an office for which only one incumbent is
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provided by law. Where 2 are acting simultaneously as de facto officers in 1 office,
the owner who appears to have a better legal title will alone be recognized.

b. Where the officer de jure is also the officer de facto, the lawful title and possession
are united and no other person can be an officer de facto to that office.

10. Elements of de facto officership


a. There must be a de jure office
1. An appointment or election of one to an office that has no legal existence gives
no color of existence to the office or color of authority to the person so
appointed or elected.

2. The rule has been applied in the following instances:


a. Where persons assume to act as incumbents of offices which have been
abolished or under authority of statutes which have been repealed;

b. Where there is no law or ordinance even attempting to create an office;

c. Where the de jure officer whom the purported de facto officer replaces did
not resign in the manner required by law, so that there was no de jure office
to be filled; or

d. Where statutory conditions of the creation of the office have not been
complied with

b. There must be a color of right or general acquiescence by the public


1. The color of right may consist in an election or appointment, or in holding over
after the expiration of ones term, or acquiescence by the public in the acts of
such officer for such a length of time as to raise the presumption of colorable
right by election or appointment.

c. There must be actual physical possession of the office in good faith


1. Physical possession must be in good faith, under color of right or title, and
accompanied by the faithful exercise of the functions of the office and discharge
of duties. Mere possession makes the possessor an intruder or usurper whose
acts in the office are wholly void.

11. Instances of de facto officers


a. A lawyer who was instructed by the Acting Provincial Governor to file an information
for homicide, where the latter had no authority under the law to designate him as
assistant fiscal; neither was said lawyer authorized to act as such by the Department
of Justice, even assuming that the appointment was irregular, yet could be
considered a de facto officer. (People v. Penesa, 81 Phil. 398 [1948])

b. A person who has been proclaimed elected to public office and assumes it on the
basis of the returns and proclamation though later ousted as the result of an election
contest, is at least a de facto officer prior to ouster and entitled to retain the
emoluments received during that time. (Rodriguez v. Tan, 91 Phil. 724 [1952])

c. One whose appointment to a competitive position was not approved by the


Commissioner of Civil Service under the pertinent rules on the matter may be

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considered as de facto officer and consequently, he may be removed from office
even without cause. (Favis v. Rupisan, 17 SCRA 190 [1968])

d. A public official or employee who assumed office under an incomplete appointment


is merely a de facto officer for the duration of his occupancy of the office for the
reason that he assumed office under color of a known appointment which is void by
reason of some defect or irregularity in its existence. (Corpuz v. Court of Appeals,
285 SCRA 23 [1998])

e. Where the mayor, because of poor health, designated the Vice-Mayor to act in his
place, then the latter designated the first ranking councilor who, not being also in
good health, in turn, designated the third ranking councilor to act as mayor, when
under the law then in force, such designation should be made by the Provincial
Governor with the consent of the Provincial Board, still the Acting Mayor was acting
under color of authority, as distinguished from a usurper who is one who has neither
title nor color of right to an office. his acts are official acts of a de facto officer, and,
therefore, valid and binding. All the requisites of de facto officership are present in
this case, i.e., an office and actual physical possession of the office, under color of
title or authority. (Codilla v. Martinez, 110 Phil. 24 [1960])

f. A judge who, in good faith, continues to act and is recognized by common error
after the abolition of his court is deemed de facto judge of a court which succeeds
to the jurisdiction of that presided over by him; and the judgment pronounced by a
judge de facto who is generally accepted and recognized as judge by common error
of the community, is valid and binding. (U.S. v. Abalos, 2 Phil. 73 [1903])

g. A judge who continued to exercise his duties after his appointment was disapproved
by the Commission on Appointments according to a newspaper report but before
receiving official notification regarding the rejection of his appointment is a de facto
judge, and all his official actions as such judge are valid on all legal points and for all
kinds of cases as if he were a de jure. (Regala v. Judge of CFI, 77 Phil. 684 [1946])

12. Office created under an unconstitutional statute


a. View that occupant not even officer de facto
1. Where an office does not legally exist, the pretended officer is merely a usurper
whose acts are null and void.

b. Contrary view
1. For the sake of public policy, the incumbent will be recognized as an officer de
facto until the unconstitutionality of the act has been judicially determined.

13. Legal effects of acts of de facto officers


a. As regards the officers themselves
1. A party suing or defending his own right as a public officer must show that he is
an officer de jure and it is not sufficient to show that he is merely a de facto
officer because the acts of the de facto officer, as far as himself is concerned,
are void.

b. As regards the public and third persons


1. Acts of a de facto officer are valid until his title to office is adjudged insufficient.
The officers authority may not be collaterally attacked or inquired into as if there
is no difference between a de jure and a de facto officer.

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14. Proceedings to try right or title of a de facto officer
a. In order to question the right of a de facto officer, a direct proceeding of quo
warranto must be brought. His title and the validity of his acts cannot be collaterally
questioned in proceedings to which he is not a party or not instituted to determine
their validity.

b. It may be instituted only by the person claiming to be entitled to the office or by the
Republic as represented by the Solicitor General or by the public prosecutor.

15. Right to compensation of a de facto officer


a. General rule: A de facto officer cannot maintain an action to recover the salary and
other emoluments attached to the office.

b. Exception: If one becomes a de facto officer without bad faith and renders service,
he may recover the compensation provided by law for the period he rendered the
service, or retain the emolument received during that time.

c. Exception to the exception: The rule that a de facto officer is entitled to receive the
salary for services actually rendered does not apply where the officer was not
appointed but merely designated. Designation does not entail payment of additional
benefits or grant upon the person so designated the right to claim the salary
attached to the position. (Dimaandal v. Commission on Audit, 291 SCRA 322
(1998))

16. Liabilities of a de facto officer


a. A de facto officer is held to the same degree of accountability for official acts as a
de jure officer.

b. While the official acts of a de facto officer are valid and may be binding with regard
to third persons and the public, such officer may be liable for all penalties imposed
by law for usurping or unlawfully holding office, or for exercising the functions
thereof without lawful right or without being qualified according to law.

c. A de facto officer cannot excuse his responsibility for crimes committed in his
official capacity by asserting his de facto status.

d. A rightful incumbent can recover the salary received by a de jure officer during the
latters wrongful incumbency even if the de facto officer occupied the office in good
faith and under color of title. (General Manager, PPA v. Monserate, G.R. No.
129616, April 17, 2002; Monroy v. Court of Appeals, 20 SCRA 620 (1967); Civil
Liberties Union v. Executive Secretary, 194 SCRA 317 (1991); Arimao v. Taher, 498
SCRA 74 (2006))

Part 4. Powers, Duties, and Norms of Conduct of Public Officers

A. Source of powers and authority of public office

The Philippines is a democratic and republican state. Sovereignty resides in the people and all
government authority emanates from them. (Constitution, Article II, Section 1)

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1. The entire source of public governmental authority is found in the people themselves,
either directly or through representatives chosen by them.

B. Authority of public officer not presumed


1. A public officer exercises power, not rights. As such, there is no presumption of
authority in the officer itself, either express or implied. In the absence of a valid grant,
public officers are devoid of power. (Villegas v. Subido, 33 SCRA 49 (1969))

C. Authority of public officer and private agents distinguished


1. In the case of private agents, authority may be classified according to their nature and
effect, into universal, general and special agencies. This classification cannot apply in
its entirety to the case of public agents.

2. Universal authority in any public agent cannot exist under our constitutional government.
There are public officers, however, whose authority is general in its nature, while that of
others is expressly limited and special.

D. Ascertainment of authority of public officer


1. It is presumed that all persons having occasion to deal with a public officer have
knowledge of his authority as it is bring created by law or being a matter of public
record. However, persons should not rely on mere presumption of authority. Instead,
they must see to it that the authority is sufficient for the assumed purposes.

2. Every citizen has the right to assume that the public officer charged by law with certain
duties knows such duties and performs them in accordance with law.

E. Scope of power of a public officer


1. Expressly conferred upon him by the law under which he has been appointed or elected;

2. Expressly annexed to the office by the law which created it or some other law referring
to it; or

3. Attached to the office as incidents of it.

Lo Cham v. Ocampo (77 Phil. 635 [1946])

A lawyer with the DOJ medico-legal section was temporarily detailed to assist the fiscal, and he was
given the powers and functions of an assistant fiscal. He signed the information in the case at bar.
The opposing counsel filed a motion to quash alleging his lack of authority.

The lawyer has the power to sign the information as the powers and functions of the fiscal can be
entrusted to someone else. The duties of a public office include all those which are truly within its
scope, and which are essential to the accomplishment of the main purpose for which the office is
created. Even powers that are incidental or collateral are included if it is germane to and serve to
promote the accomplishment of the principal purpose.

Radio Communications of the Philippines, Inc. v. Santiago (58 SCRA 493 [1974])

The Public Service Commission punished Radio Communications with a fine. They appealed
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alleging that the Public Service Commission has no power to do so since there is an express
limitation in the law exempting radio companies from the jurisdiction of the body.

The Court ruled that the Public Service Commission has no power to impose such a fine. Except for
constitutional officials who can trace their competence to act to the fundamental law itself, a public
officer must locate in the statute relied upon a grant of power before he may exercise it. It need not
be express. It may be implied from the wording of the law. Acts done without authority can be set
aside.

F. Territorial limitation of authority of public officers


1. Limited to territory where law has effect
a. Since authority is derived from law, such authority cannot exist in places where the
law has no effect. It is limited and confined to that territory over which the law has
sovereign force.

2. Action at a place not authorized by law ordinarily invalid


a. If a public officer is authorized by law to perform duties at a particular place, any
action in any other place has no effect. This rule is applicable to officers whose
duties are essentially local in nature such as judges and notaries, and officers who
attempt to levy on and sell land situated in districts other than those in which they
have jurisdiction.

G. Duration of authority
1. Duration of term
a. The exercise of authority by a public officer is limited to that term during which he is
invested by law with the rights and duties of the office. He cannot exercise authority
granted by law before his term begins or after it has terminated.

2. Where officer chosen to act in reference to a particular subject


a. When an officer is chosen to perform a single act as when he is chosen for a definite
term, his authority ceases once the act is done.

H. Construction of grant of powers


1. Express grant of power are subjected to a strict interpretation in order to be construed
as conferring only those powers which are expressly imposed or necessarily implied.

I. Classification of powers and duties


1. From their nature: It is the nature of the act to be performed and not the office of the
officer that distinguishes a ministerial and a discretionary act.

a. Ministerial
1. A duty is ministerial when it is absolutely certain, and imperative, involving
merely execution of a specific duty arising from fixed and designated facts.
There is no element of discretion in the duty.

2. It is one which a person performs on a given statement of facts, and in a


prescribed manner, in obedience to the mandate of legal authority, without
regard to or the exercise of his own judgment upon the propriety or impropriety
of the act done. (Lamb v. Phipps, 23 Phils. 156 (1912); De Guzman, Jr. v.
Mendoza, 453 SCRA 565 (2005))

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b. Discretionary
1. Such duties require the exercise of reason in adapting the means to the end,
and discretion in determining how or whether the act shall be done. It arises
when the act can be performed in more than one way, which leads the
performer in which way it should be performed.

2. From the standpoint of the obligation of the officer to perform his powers and duties

a. Mandatory
1. Powers are generally construed as mandatory, even if the language may be
permissive, when it is for the benefit of the public or individuals.

b. Permissive
1. Directory provisions usually state the manner and mode on how the official will
do the duties, and those which are designed merely to secure order, uniformity,
system, and dispatch in public business.

3. From the stand point of the relationship of the officer to his subordinates

a. Power of control
1. It implies that the officer has the power to manager, direct and govern, including
the power to alter and to set aside what a subordinate had done in the
performance of his duties and to substitute his own judgment for that of the
latter. An officer with such a power can lay down the rules in the doing of an
act, and it is discretionary upon him to have the act undone if he is not followed,
or he may decide to do it himself.

b. Power of supervision
1. It is power of mere oversight over an inferior body. An officer with
supervisory power merely sees to it that all the rules are followed, but he
himself does not lay down such rules, nor does he have the discretion to
modify or replace them.

J. Ministerial and discretionary powers distinguished


1. Nature of act
a. The character of a duty as ministerial or discretionary must be determined by the
nature of the act to be performed, and not by the office of the performer.

2. Exercise of discretion
a. The key distinction is whether the duty is mandatory or whether the act complained
of involves policy making or judgment.

1. An act is discretionary if it involves enforcement or administration of a


mandatory duty at the operational level, even if professional expert evaluation is
required.

2. An act is ministerial if nothing is left to the discretion of the person who must
perform.

K. Meaning of discretion
1. It is the act or the liberty to decide according to the principles of justice and ones ideas
of what is right and proper under the circumstances, without willfulness or favor.
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2. It is the faculty conferred by law upon public officers to act according to the dictates of
their own judgment and conscience, uncontrolled by the judgment and conscience of
others. (Lamb v. Phipps, 23 Phils. 156 (1912))

L. Exercise of discretion limited


1. The exercise of discretion by an officer is still limited to the evident purposes of the act,
and to what is known as a sound and legal discretion, excluding all arbitrary, capricious,
inquisitorial and oppressive proceedings.

Lamb v. Phipps (22 Phil. 456 [1922])

Lamb has been a public servant for 12 years. He has accounted for all the property that came into
his possession. Phipps, an auditor, did not issue a clearance in favor of Lamb due to a fear of suit
that a third party may file. Lamb filed a petition for mandamus.

Mandamus cannot compel the issuance of a clearance. The right to allow or disallow a claim
against the government is within the discretion of the auditor. A mandamus may issue to compel an
action only when, by reason of unnecessary delays in taking in any action at all, persons have been
deprived of a right and have no adequate and speedy remedy in the ordinary course of law. The
mandamus cannot issue in this case, as Lamb could appeal the decision of Phipps to the Governor
General before resorting to the courts.

Aprueba v. Ganzon (18 SCRA 8 [1966])

A Mayor closed down the cafeteria of the City Market due to violations of an ordinance. Stall
owners filed a petition for mandamus to compel said mayor to reopen the cafeteria on the grounds
that there were no delinquency rentals, it has complied with health regulations, and that it is
ministerial on the part of the mayor to allow them to operate. The City Charter provides that the
mayor shall have the power to grant and refuse municipal licenses and to revoke the same for
violation of conditions upon which they were granted or if unlawful acts are committed under such
licenses, or for any other reason for the public interest.

The privilege of stall owners rested on the sound discretion of the mayor and refusal on his part to
grant continuance of the privilege cannot be compelled by mandamus. The writ will not issue to
control or review the exercise of discretion by a public officer where the law imposes upon him the
right of a duty to exercise judgment within the scope of his authority.

Miguel v. Zulueta (16 SCRA 860 [1966])

Pursuant to resolutions of the provincial board, Governor Zulueta issued 2 Executive Orders naming
the provincial government building Provincial Capitol of Iloilo and the renovated session hall
hterein as President Garcia Hall. The architect put up a sign President Garcia Hall on the
provincial government building, in violation of a law that prohibited the naming of buildings, among
other things, after living persons. Mandamus proceedings were instituted to have the sign removed
and replaced.

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Mandamus lies. The putting up of the sign was patently illegal. While naming the session hall
President Garcia Hall was not illegal, putting up the sign on the provincial building itself was.
Zulueta is not only duty bound to observe the law, he is bound to enforce it. Thus, he may be
compelled to remove or rectify the unlawful act by mandamus, at the instance of the taxpayer.
Where the issue involved is one of public right and the issuance of a writ of mandamus is to compel
the observance of the law, petitioner need not show that he has any special or legal interest in the
result of the proceeding. It is sufficient that he is interested as a citizen in having the laws executed
and the duty enforced.

M. Remedy to compel exercise of duty


1. Where clear duty is imposed on a public official, mandamus lies to compel action if
unnecessary and unreasonable delay in the exercise of the duty occurs.

2. If the duty is ministerial, mandamus lies to compel a specific action.

3. If the duty is discretionary, mandamus lies to require action only.

N. Delegation of discretionary powers


1. General rule: There can be no delegation of discretionary duties to another.

2. Exception: when the power of delegation is given to him.

Torres v. Ribo (81 Phil. 44 [1948])

Candidates for upcoming elections were disqualified to form part of the Provincial Board of
Canvassers. Pursuant to the Election Code (which enumerates the valid substitutes for positions in
the Board), COMELEC appointed substitutes for the positions. However, some of the substitutes
were unable to take their appointments on time on November 22 and only arrived on November 24.
In the interim, the COMELEC appointed two other substitutes who did not belong to the
enumeration under the Election Code.

The substitution was invalid. The members of the Board of Canvassers is designated by law, and
the enumeration for the substitutes thereof is exclusive. Appointments falling outside the officers
allowed by law is not permissible even if such appointments are by COMELEC itself. The
appointment of a substitute member is personal and restricted and his powers must be performed
by him directly and in person. An officer to whom discretion is entrusted cannot delegate it to
another. The powers of the board are not purely ministerial, and they exercise quasi-judicial
functions. Thus, the Board was deemed constituted only at the time when all its members were
from lawful and valid appointments for purposes of the start of periods of appeal / protest.

O. Delegation of ministerial powers


1. General rule: Delegation of ministerial powers is permissible, since the mechanical
nature of the acts can presumably be performed by anyone when performance thereof
has been guided by the judgment or discretion of the person chosen.

2. Exception: When delegation is expressly disallowed, or when the acts require the public
officer to perform them in person.
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P. Time to perform official acts
1. Where no time stated in statute
a. The duty must be performed within a reasonable time.

2. Where time stated in statute


a. General rule: The time period expressed is to be construed as directory and not
mandatory, unless the nature of the act to be performed or the language used in the
statute evidences an intention to limit the power of the officer.

Q. Ratification of unauthorized acts


1. A defective exercise of the powers of a public officer may be ratified.
a. If the act was absolutely void in the beginning, either for want of power on the part
of the public officer to perform the act, or the principal himself could not have
lawfully performed the act, there can be no ratification.
b. If the act was merely voidable, it can be ratified.

2. In the absence of ratification, the State is not estopped by the unauthorized or illegal
acts of its agents.

3. Superior officers may ratify acts done by inferior officers only if they themselves are
empowered to make such acts and contracts.

R. Judicial review of official acts


1. Where act involves exercise of discretionary power
a. No judicial interference for acts of officers in the performance of their duties which
are discretionary in nature or involve the exercise of judgment in the absence of
showing of an abuse of discretion or an arbitrary decision, fraud or corruption.
When the law gives an officer the power to determine the existence of certain facts,
such officer is the sole and exclusive judge of the existence of those facts.

2. Where act involves performance of purely ministerial duty


a. Refusal to act may be compelled by mandamus; while injurious acts that threaten
such duty may be subject of injunction.

3. Where act reviewed done without jurisdiction


a. If the executive officer does not have jurisdiction of the matter before him, the courts
may interfere through mandamus or injunction.

S. Norms of conduct of public officials and employees


1. Public office is a public trust
a. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency, act with patriotism and justice, and lead modest lives. (Constitution,
Article XI, Section 1)

2. Standards of personal conduct (The Code of Conduct and Ethical Standards for Public
Officials and Employees, Republic Act No. 6713, approved February 20, 1989)
a. Commitment to public interest
b. Professionalism
c. Justness and sincerity
d. Political neutrality
e. Responsiveness to the public
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f. Nationalism and patriotism
g. Commitment to democracy
h. Simple living

3. Duties of the Civil Service Commission


a. Observance of these standards, including dissemination of information programs
and workshops authorizing merit increases to employees who are deemed
outstanding.

b. Research and experimentation on motivation measures and raising levels of


observance of the above standards.

T. System of incentives and rewards


1. Criteria in the conferment of awards:
a. Years of service
b. Quality and consistency of performance
c. Obscurity of position
d. Level of salary
e. Unique and exemplary quality of achievement
f. Risk or temptation inherent in the work
g. Any favorable similar circumstance

2. Forms of incentives and rewards


a. Bonuses
b. Citations
c. Directorships in government-owned or controlled corporations
d. Scholarship grants (local or foreign)
e. Paid vacations
f. Automatic promotion, provided that if there is no vacant next higher position, the
position shall be included in the next budget of the office, unless the creation of the
position will result in distortion. Where there is no next higher position immediately
available, a salary increase equivalent to the next higher position shall be given.

3. Committee on Awards
a. Composition:
1. Ombudsman
2. Chairman and co-chairmen of the Civil Service Commission
3. Chairman of the Commission on Audit
4. Two (2) government employees to be appointed by the President

b. Functions and responsibilities of the Committee:


1. Conduct a periodic, continuing review of performance of officials and employees
in all departments, offices, and agencies;

2. Establish a system of annual incentives and rewards to the end that due
recognition is given to officials and employees of outstanding merit on the basis
of the criteria or standards set forth above;

3. Determine the form of rewards to be granted;

4. Formulate and adopt its own rules to govern the conduct of its activism, which
shall include guidelines for evaluating nominees, and mechanism for recognizing
the awardees in public ceremonies, and the creation of sub-committees.
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U. Duties of public officers as trustees for the public
1. In general The obligation of a public officer does not include risking or giving his life or
incurring disablement.
a. Duty to obey the law until it is determined as unconstitutional

b. Duty to accept and continue in office


1. Mandamus may be invoked to compel acceptance by a person elected or
appointed to a public office.
2. Resignation does not relieve an office of the duties of his office, at least until a
successor is appointed.

c. Duty to accept burden of office

d. Duty as to diligence and care


1. Standard of care: Every public officer is bound to use reasonable skill and
diligence in the performance of his official duties.
2. When public funds and property for official use and purpose are involved, public
officers are expected to act using the diligence of a good father of a family.

e. Duties in choice and supervision of subordinates


1. The degree of care in selecting subordinates must depend upon the nature of
the work to be performed and the circumstances of each case.

2. Ethical duties
a. Public officers are bound to perform their duties honestly, faithfully and to the best
of their abilities.

b. Duty as to outside activities


1. It is the duty of public officers to refrain from outside activities which interfere
with the proper discharge of their duties.

c. Duty where personal interest is involved


1. A public officer may not use his official power to further his own interest.

d. Duty to act with civility


1. Public officers and employees should exude uprightness not only in the
performance of their official duties but also in their personal and private dealings
with other people.

V. Duty to make financial disclosure

All Members of the Senate and the House of Representatives shall, upon assumption of office,
make a full disclosure of their financial and business interest. They shall notify the House concerned
of a potential conflict of interest that may arise from the filing of a proposed legislation of which they
are authors. (Constitution, Article VI, Section 12)

A public officer or employee shall, upon assumption of office and as often as may be required by
law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the
President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the
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Constitutional Commissions and other constitutional offices, and officers of the armed forces with
general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.
(Constitution, Article XI, Section 17)

Morfe v. Mutuc (22 SCRA 424 [1968])

Section 7 of Republic Act No. 3019, requiring submission of sworn statements of assets and
liabilities every other year by government officials / employees is constitutionally challenged.

The Court upheld the statute as a valid exercise of police power with the aim of curtailing corruption
and maintaining the standard of honesty in the government. Due process is present because a
public office is not property, and due process will still be observed if and when the time comes to
remove an officer because of a pending removal. Given the realities of public service, the exercise
of police power in this case is valid. The intrusion of the statute into the privacy of officials has a
reasonable relation to the aim of the statute, and further, the public sector is subject to the control of
the state. The right against unreasonable search and seizure does not apply here, since it only
protects the sanctity of the domicile and communications. The self-incrimination guarantee only
comes into play when there is an existence of actual cases (civil, criminal, or administrative). Finally,
the law goes into the wisdom of the legislation, thus, it is a political questions that courts may not
intrude upon.

W. Specific duties of public officials and employees


1. Act promptly on letters and requests
a. Public officers must respond to communications within 15 days from receipt thereof.

2. Submit annual performance reports


a. Annual performance reports must be submitted by responsible officers within 45
days from the end of the year, according to existing rules and regulations. These
reports shall be open to the public.

3. Process documents and papers expeditiously


a. These must be filed within a reasonable time and signed, as far as practicable, by 3
officers. Next-in ranks may sign for absent signatories.

4. Act immediately on the publics personal transactions

5. Make documents accessible to the public

X. Actions on requests and petitions


1. General rule: When an oral or written request or petition can be disposed of promptly,
the public officer should do so immediately, in no case beyond 15 days from receipt of
the request or petition.

2. Written requests, petitions, or motions, sent by means of letters, telegrams, or the like,
must be acted upon by the public official or employee within 15 days from receipt
thereof, subject to the following:

a. When the request is within the jurisdiction of the public officer:


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1. Write a note or letter of acknowledgment where the matter is merely routinary or
the action desired may be acted upon in the ordinary course of business,
specifying the date when the matter will be disposed of and the name of the
official or employee in charge thereof.

2. Where the matter is non-routinary or the issues involved are not simple or
ordinary, write a note or letter of acknowledgment informing the interested party,
petitioner, or correspondent of the action to be taken or when such requests,
petitions, or motions can be acted upon, and prescribe the time, manner and
place of submission of additional information, if necessary. If all the
requirements are fulfilled, the public officer should inform the interested party of
the action to be taken and when such shall occur.

b. When the request is outside the jurisdiction of the public officer:


1. Refer the request to the proper office / agency.

2. Acknowledge the communication by letter, attaching the letter of referral to the


proper agency.

3. Agency referred to must take action in accordance with the letter, within 15 days
from receipt of the communication by the agency concerned.

Y. Processing of papers and documents


1. All papers and documents must be processed and completed within a reasonable time
from the preparation thereof, subject to the following rules:

a. When the law specifies a period for the action to be taken, the same shall be
followed.

b. When the law states no period, the agency concerned shall issue rules prescribing
reasonable time, taking into account the following factors:
1. Nature of the subject matter
2. Adequacy of the requirements necessary
3. Lack of resources caused by circumstances beyond the control of the office
4. Legal constraints that prevent action
5. Fault or neglect of the party concerned
6. Force majeure

Z. Signing of any written action or decision


1. As far as practicable, any written action or decision must contain not more than 3 initials
or signatures.

2. When the duly authorized signatories are absent, the official next-in-rank or officer-in-
charge shall sign based on the foregoing rules:
a. If there is only one official next-in-rank, he shall automatically be the signatory;
b. If there are two or more officials next in rank, the appropriate officer shall prescribe
the order of priority;
c. If no official next-in-rank is available, the office shall designate an officer-in-charge
from among the lower ranked public officers in the organizational unit.

AA. Public disclosure of statements of assets and liabilities


1. Who files: All public officials and employees, except those who serve in an honorary
capacity, laborer and casual or temporary workers
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2. What must be filed:
a. Statement of Assets, Liabilities and Net Worth and a Disclosure of theirs spouses
and unmarried children under 18 years old living with them.
1. If both spouses are public officers, they may file either separately or jointly.
2. Contents:
a. Real property, its improvements, acquisition costs, assessed value and
current fair market value
b. Personal property and their acquisition costs
c. Other assets (i.e. stocks, bonds, investments, etc.)
d. Financial liabilities, long and short term
e. All business interests and financial connections

b. Written authority in favor of the Ombudsman to obtain from all appropriate


government agencies documents that may show their assets, liabilities, etc.,
including from years since they first assumed public office.

3. When to file:
a. Within 30 days after assumption of office, reckoned as of his first day in office

b. On or before April 30 of every year thereafter

c. Within 30 days from separation from service

4. Where to file:
a. President, Vide-President, Constitutional Officials - National Office of the
Ombudsman
b. Senators, Members of the House of Representatives with the respective
Secretaries of their houses
c. Supreme Court Justices Court Administrator
d. Other national executive officers, heads of government-owned or controlled
corporations with the office of the President
e. Regional / local officials, elective and appointive, other officials of government-
owned or controlled corporations with the Deputy Ombudsman in their regions
f. Officers of the AFP with rank of Naval Captain or Army Colonel and above Office
of the President
g. Officers of the Armed Forces of the Philippines with rank below Naval Captain or
Army Colonel Deputy Ombudsman
h. Other public officials Civil Service Commission

5. Identification and disclosure of relatives


a. It is the duty of every public official to employee to identify and disclose, to the best
of his knowledge and information, his relatives in the government up to the fourth
civil degree of relationships, either of consanguinity or affinity, including bilas, inso,
and balae.

6. Accessibility of documents
a. To be made available for inspection at reasonable hours

b. To be made available for copying after 10 working days from the time they are filed

c. Persons requesting may be required to pay a fee for reproduction, certification and
mailing thereof
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d. Any statement shall be made available for a period of 10 years after receipt of such
statement, to be destroyed at the end of such period, unless needed for an ongoing
investigation

e. Ombudsman may also inspect pursuant to the required written authority executed
by the public officer

7. Prohibited acts
a. It is unlawful to obtain or use any of the above statements for:
1. Any purpose contrary to morals or public policy

2. Any commercial purposes other than by news for dissemination to the general
public

8. Review of compliance procedures


a. The following may determine whether or not the statements are properly
accomplished:
1. Congress by the designated committees, subject to the approval by the
majority of the House concerned
2. Executive by the heads of the departments concerned, subject to the approval
of the Secretary of Justice
3. Judicial Chief Justice of the Supreme Court
4. Constitutional Commissions by their respective chairmen and members thereof,
In case of the Office of the Ombudsman, the Ombudsman.

b. The officials above can render opinions interpreting the provisions on the review and
compliance procedures in the filing of the statements

c. If the statement is not filed correctly, they shall inform the reporting public officer
and take corrective action

9. Basis in monitoring income and lifestyle of government officials


a. The SSAL serves as basis of the government and the people in monitoring the
income and lifestyle of officials and employees in the government in compliance with
the constitutional policy to promote transparency in government to eradicate
corruption and ensure that they lead just and modest lives.

BB. Transparency of transactions and access to information


1. It is the responsibility of heads of departments, offices and agencies to establish
measures and standards that will ensure transparency of public transactions in their
respective offices (i.e., biddings and all other matters involving public interest)

2. It is also the responsibility of every department, office, or agency to provide official


information, except if:

a. In the interest of national defense or security or the conduct of foreign affairs, such
information should be kept secret
b. If the life and safety of an individual is in imminent danger
c. Privileged information
d. The information comprises drafts of decisions, orders, ruling and policy decisions

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e. If it is such a personal nature that a disclosure would constitute a violation of ones
right to privacy
f. It would disclose investigatory records compiled for law enforcement purposes to
the extent that it would:
1. Interfere with enforcement proceedings
2. Deprive a person of a right to a fair trial
3. Disclose the identity of confidential source
4. Unjustifiably disclose investigative techniques
g. Premature disclosure as would likely lead to speculative financial speculations or
endanger stability of financial institutions

3. Every head of department, office, and agency should also establish information systems
to inform the public about rules, programs, reports, and all other documents classified
as public information.

CC. Reforms on public administrative systems


1. Every head of department, office, or agency shall conduct value development programs
for its officials and employees in order to strengthen commitment to public service and
to promote primacy of public interest over personal interest in the performance of their
duties. Such programs shall include the following:

a. Ethical and moral values


b. Rights, duties and responsibilities of public servants
c. Nationalism and patriotism
d. Justice and human rights
e. Democracy in a free and just society
f. Philippine history, culture, and tradition
g. Socio-economic conditions prevailing in the country, especially in the depressed
areas

2. Every department, office, and agency should also conduct continuing studies and
analyses of its work systems and procedures to improve delivery of public services.

3. They shall also develop and regularly update a service guide which should be made
available to the transacting public.

4. They shall also consult the public for their feedbacks, suggestions of the efficiency and
effectiveness of services.

5. They shall also continue to conduct research and experimentation on measures and
adopt innovative programs for motivating public officials and employees in observing
public service ethical standards.

6. They shall also, in consultation with the Office of the Ombudsman, appoint or designate
a resident Ombudsman who shall act on requests for public assistance referred to him
by the Ombudsman and his Deputies.

7. Government officials shall also make themselves open for consultations and dialogues
with their staff.

Part 5. Rights and Privileges of Public Officers

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A. In general

1. Rights incident to public office


a. The rights incident to a public office are conferred and measured by the Constitution
or by law, or both, under which the public officer was elected or appointed.

2. Rights as a citizen
a. Protection from publication commenting on his fitness and the like
a. By reason of the public character of his employment, a public officer is not
entitled to the same rights accorded to an ordinary citizen. Examples are the
protection from publications commenting on his fitness and the prohibition on
engaging in certain political or business activities.

b. Engaging in certain political and business activities


1. Public employees may be required to suspend or refrain from engaging in
certain political or business activities when such activities are reasonably
deemed inconsistent with their public status and duties.

B. Right to Compensation

1. Power of Congress to fix compensation


a. Power primarily but not exclusively legislative in character
1. The power to fix compensation of public officers is not inherently and
exclusively a legislative function.

b. Power may be delegated subject to statutory limitations


1. Such power may be delegated to other bodies unless prohibited by the
Constitution and it must be within the statutory limitations imposed by
Congress. Such exercise of discretion is not ordinarily reviewable by the courts.

2. Compensation, not an element of public office


a. Compensation is not indispensable to public office but is merely an incident thereto,
and attaches to the office itself, not to the officer.

3. Forms of compensation defined and distinguished


a. Compensation
1. It is paid for doing all that may be required whether it is in the form of a fixed
salary or wages, per diems, fees, commissions, or perquisites of whatever
character.

2. It is distinguished from honorarium, as honorarium is given not as a matter of


obligation but in appreciation for services rendered; a voluntary donation in
consideration of services which admit of no compensation in money. (Sison v.
Tablang, 588 SCRA 727 (2009))

b. Salary
1. It is generally a fixed annual or periodical payment depending on the time and
not the amount of service.

2. It is distinguished from wages, as wages is given to officers of lesser rank and


paid per day or week.

c. Per diem
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1. It is a daily allowance given for each day an officer is away from his home by
reason of his official duties. It is usually reimbursement for extra expenses.

2. It will not be considered per diem if it is given in the nature of compensation for
full time work.

3. It is also not deemed a salary in relation to the constitutional provision that no


change in the compensation of officers shall affect the salary of any officer
during his existing term.

d. Emoluments
1. It refers to the profits arising from the office, and that which is received as
compensation for services or which is annexed to the office as salary, fees or
perquisites and includes those which, by law, the officer is entitled to receive.

2. Allowances (i.e., representation and transportation, housing, etc.) are included in


the term emoluments.

4. Basis of right to compensation


a. Creation of law
1. It is not regarded as a contract or a vested property right but rather as a public
trust to be exercised for the benefit of the public. A public officers right to
compensation exists solely as the creation of law.

b. Services rendered
1. The right to compensation grows out of the rendition of services. However, in
the absence of a statute to the contrary, a public officer is not entitled to
compensation for services rendered under an unconstitutional statute or
provision.
2. Compensation is paid only for service actually or constructively rendered,
following the no work, no pay principle.

c. Compensation fixed by law


1. If no compensation is fixed or attached by law, the public officer is presumed to
have accepted the office to serve gratuitously. (Acosta v. Court of Appeals, 354
SCRA 486 (2000))

d. Legal title to office


1. Generally, one without a legal title to office either by appointment or election is
not entitled to receive salary or compensation attached to the office.

e. Amount of compensation
1. The nature of an officials position should be the determining factor in the fixing
of his or her salary. Thus, the law employs grade as the determinant of salary,
which depends upon the nature of ones position, including the level of difficulty,
responsibilities, and qualification requirements thereof relative to that of another
position.
2. Law fixes the officials grade. (Binay v. Sandiganbayan, 316 SCRA 65 (1999))

f. Ex oficio position
1. An ex oficio position is part of the principal office. Therefore, the official
concerned has no right to receive additional compensation for services in an ex
oficio position because these services are already paid for and covered by the
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compensation attached to the principal office. (Bitonio, Jr. v. Commission on
Audit, 425 SCRA 437 (2004); Civil Service Commission v. De la Cruz, 437 SCRA
403 (2004))

5. Recovery of compensation
a. An action to recover the compensation attached to a public office belongs to the
person who has the true title to the office, not merely a colorable title thereto.

1. From the government


a. Generally, the de jure officer cannot recover that which has been paid to a
de facto officer unless the government continues to pay even after having
received notice of an adjudication in favor of the de jure.

b. In cases where there is no de jure officer, a de facto officer is legally entitled


to the emoluments of the office if he is:
1. In good faith
2. Has possession of the office
3. Has discharge of the duties of said office

2. From the de facto officer


a. After the notice of adjudication in favor of the de jure officer, the de facto
officer is not entitled to keep what has been paid for services rendered.

b. Also, where the tenure of the de facto was wrongful, the salary received by
such may be recovered.

3. From the intruder or usurper


a. An intruder or usurper has no right to the salary or emoluments of the office.
He becomes liable to the de jure officer in an action for money he had
received.

Rodriguez v. Tan (91 Phil. 724 [1957])

Rodriguez claims that Tan usurped the office of being a Senator from 1947 to 1949.

The Supreme Court ruled that Tan did was a de facto officer. One who had been proclaimed and
had assumed office but was later ousted because of an election protest was a de facto officer who
is entitled to compensation. The emoluments must go to the person who actually rendered the
service.

Monroy v. Court of Appeals (20 SCRA 621 [1973])

Monroy was the incumbent Mayor when he filed his certificate of candidacy as Representative.
Three days after said filing, he withdrew said certificate. COMELEC approved the withdrawal. The
Vice-Mayor took his oath of office as Mayor. The Court of First Instance held that Monroy ceased to
become Mayor upon the filing of the Certificate. It also held that Monroy must reimburse the
salaries to which the Vice-Mayor was entitled as mayor. The Court of Appeals affirmed the ruling of
the Court of First Instance.

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The Vice-Mayor was entitled to the salaries since he took his oath of office as Mayor. The general
rule is that the rightful incumbent of an office may recover from a de facto officer the salary received
by the latter during the time of his wrongful tenure even though he entered into the office in good
faith and under color of title. Where a Mayor withdrew his Certificate of Candidacy, he does not
resume his post as Mayor. Therefore, he cannot be entitled to the compensation attached to said
office.

6. Salary not subject to garnishment


a. Garnishment is a kind of attachment for reaching credits belonging to the judgment
debtor owing to him from a stranger to litigation. (Engineering Construction, Inc. v.
National Power Corporation, 163 SCRA 9 (1988))

b. The salary of a public officer may not be subject of garnishment, attachment, or


order of execution, nor be seized before being paid to him, and appropriated for the
payment of his debts for the following reasons:

1. While the money is still in the hands of the disbursing officer, it belongs to the
government

2. Public policy forbids such practice since it would be fatal to the public service,

3. The garnishment or attachment of an officers salary is tantamount to a suit


against the State in its own court, which is prohibited except with its consent.
(Director of Commerce and Industry v. Concepcion, 43 Phil. 384 (1922))

7. Agreements affecting compensation


a. Compensation is given not only for remuneration of services but also to enable the
incumbent to give due attention to his official duties and to perform them better.
Any agreement respecting such compensation is invalid if it tends to pervert such
compensation to purpose other than that for what it was intended. This rule
specifically refers to unperformed services and the salaries attached thereto and to
those already performed which the officer can validly disburse as he may see fit.

b. The following agreements are invalid:


1. Agreement to accept, or acceptance of less or other than legal compensation
2. Sale, assignment, or barter of said compensation
3. Dividing compensation with others if it amounts to an anticipatory agreement

8. Prohibition against diminution of salary


a. Congress has absolute power to fix or alter the compensation of public officers,
except as provided by the Constitution.

The Constitution prohibits Congress from reducing the salary of the following
constitutional officers during their term or tenure in order to secure their
independence:

1. President and Vice-President

The President shall have an official residence. The salaries of the President and Vice-President

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shall be determined by law and shall not be decreased during their tenure. No increase in said
compensation shall take effect until after the expiration of the term of the incumbent during which
such increase was approved. They shall not receive during their tenure an other emolument from
the Government or any other source. (Constitution, Article VII, Section 6)

2. Chief Justice, Associate Justices of the Supreme Court, and judges of lower
courts

The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges
of lower courts shall be fixed by law. During their continuance in office, their salary shall not be
decreased. (Constitution, Article VIII, Section 10)

3. Chairmen and members of the Constitutional Commissions

The salary of the Chairman and the Commissioners shall be fixed by law and shall not be
decreased during their tenure. (Constitution, Article IX-A, Section 3)

4. Ombudsman and his Deputies

The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of
the Constitutional Commissions, and they shall receive the same salary, which shall not be
decreased during their term of office. (Constitution, Article XI, Section 10)

b. Congress may also increase the salaries of the mentioned officers but it shall not
take effect until after the expiration of their full term.

9. Prohibition against receiving additional, double, or indirect compensation

No elective or appointive public officer or employee shall receive additional, double, or indirect
compensation, unless specifically authorized by law, nor accept without the consent of the
Congress, any present, emolument, office, or title of any kind from any foreign government.

Pensions or gratuities shall not be considered as additional, double, or indirect compensation.


(Constitution, Article IX-B, Section 8)

a. The prohibition does not apply in the following cases:


1. The law, in certain instances, specifically authorizes payment where it appears
just and necessary

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2. Additional compensation is received not from government or any of its entities

3. In case of double appointments where there are 2 distinct offices, the public
officer may draw the salary attached to the 2nd position only when law
specifically authorizes him.

10. Free voluntary service to the government


a. Free voluntary service to the government refers to services rendered by persons
who are in government without pay or compensation.

b. Requirements for free voluntary service


1. Issuance of an appointment document
2. Fitness and suitability for the duties and responsibilities of the particular position
3. Compliance with the rule on nepotism

c. Functions or services that volunteers can perform:


1. Advisory
2. Consultancy or counseling
3. Recommendatory
4. Professional services
5. Staff work such as planning or research
6. Humanitarian

d. Applicable laws and rules


1. The Code of Conduct and Ethical Standards for Public Officials and Employees
(Republic Act no. 6713) and the Implementing Rules on:
a. Rewards and incentives
b. Norms of conduct and ethical standards
c. Duties and obligations of public officers and employees
d. Prohibitions and sanctions enumerated in the Implementing Rules
e. Civil and criminal liability

e. Exemptions
1. Those who render free voluntary service are exempted from the following:
a. Filing of statements of assets and liabilities and net worth, and financial
disclosures
b. Requirement of divestment
c. Eligibility requirements
d. Security of tenure

f. Prohibitions
1. Unless otherwise provided in the terms of their designations, volunteers are
prohibited from:
a. Exercising supervisory functions over personnel
b. Exercising functions of positions involving national security
c. Having access to confidential or classified information unless authorized by
proper authorities
d. Occupying regular plantilla positions
e. Having such services credited as government service and availing
themselves of retirement benefits
f. Using facilities and resources of the office for partisan political purposes
g. Receiving any pecuniary benefit such as honoraria, allowances, and other
perquisites of office. (Implementing Rules, Rule XII, Section 1)
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C. Other rights
1. Rights under the Constitution
a. Right to self-organization

The right to self-organization shall not be denied to government employees. (Constitution, Article
IX-B, Section 2(5))

The right of the people, including those employed in the public and private sectors, to form unions,
associations or societies for purposes not contract to law shall not be abridged. (Constitution,
Article III, Section 8)

x x x It shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in accordance with law.
x x x (Constitution, Article XIII, Section 3, para. 2)

1. The right includes the right to form labor organizations or unions and the right to
collective negotiation.

2. It excludes the right to bargain collectively with the government or to engage in


concerted activities.

3. The right to strike is absolutely prohibited since the terms and conditions of
government employment are fixed by law.

b. The right to protection of temporary employees


1. Temporary employees of the government shall be given such protection as may
be established by law but they do not enjoy security of tenure.

c. Freedom of members of Congress from arrest and from being questioned

A Senator or Member of the House of Representatives shall, in all offenses punishable by not more
than 6 years imprisonment, be privileged from arrest while Congress is in session. No member shall
be questioned nor be held liable in any other place for any speech or debate in the Congress or in
any committee thereof. (Constitution, Article VI, Section 11)

1. Members of Congress enjoy parliamentary immunities.

d. The right not to be removed or suspended except for cause provided by law
1. The existence of a charge, due hearing, and finding of guilt by the proper
authority is implied in the constitutional prohibition against removal or
suspension except for cause.

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People v. Jalosjos (324 SCRA 689 [2000])

Jalosjos wanted to fully discharge his duties as a Congressman, despite his conviction for statutory
rape and acts of lasciviousness.

All top officials of the government are subject to law and Jalosjos membership in Congress does
not exempt him from statutes and rules which apply to validly incarcerated persons. Immunity from
arrest of members of Congress has always been granted in a restrictive sense. It cannot be
extended beyond its ordinary meaning. Emergency or compelling temporary leaves from
imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders
but what Jalosjos seeks is not of an emergency nature. Allowing him to attend congressional
sessions and committee meetings for 5 days or more in a week will virtually make him a free man
with all the privileges appurtenant to his position.

2. Participation in prohibited activity or mass action


a. Prohibited concerted activity or mass action refers to any collective activity
undertaken by government employees either by themselves or through their
employees organizations, with the intent of effecting work stoppage or service
disruption in order to realize their demands or force concessions, economic or
otherwise, from their respective agencies or the government.

b. Concerted activity or mass action done outside government office hours may be
allowed provided it would not result in disruption of work.

c. Government workers can form associations for purposes not contrary to law but this
right excludes the right to bargain collectively with the government, or to engage in
concerted activities. The right to strike is absolutely prohibited since the terms and
conditions of their employment are fixed by law.

d. Government employees who join, participate, or take part in prohibited concerted


activity or mass action resulting in disruption of work or service shall be held
administratively liable for the offense of conduct prejudicial to the best interest of the
service.

e. Government agencies shall not approve mass leave of absences, which occurs
when five or more employees of the same agency apply for leave simultaneously or
almost at the same time under circumstances evidencing collusion or common
design to participate in a prohibited mass action. Officials who approve mass leave
applications to join mass actions shall also be subject to administrative sanction.

f. Government employees have the right to collective negotiation, which is the


process of resolving disputes or a potential one between employer and employees.

3. Rights under the Civil Service Decree and the new Administrative Code
a. The right to preference in promotion
1. Among the rules for the recruitment and selection of employees are as follows:
a. When vacancy occurs in a position in 1st level of Career Service, the
following shall be considered for promotion:

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1. Employees in the department who occupy the next lower positions in
the occupational group under which the vacant position is classified /
those in other functionally related occupational groups
2. Those who are competent, qualified and with the appropriate civil
service eligibility.

b. When vacancy occurs in a position in the 2nd level of Career Service, the
rules for vacancy in 1st level positions also apply.

c. If vacancy is not filled by promotion, fill the vacancy by transfer,


reinstatement, or reemployment of persons separated through reduction in
force, or appointment.

d. Right to appeal of qualified next-in-rank


1. Who may appeal:
a. Qualified next-in-rank employee who is not satisfied with the written
special reason given by appointing authority for appointment in
favor of another employee

2. Qualified next-in-rank
a. This refers to an employee appointed on a permanent basis to a
position previously determined to be next-in-rank to the vacancy
proposed to be filled and who meets the requisites for appointment
thereto as previously determined by appointing authority and
approved by the Civil Service Commission.

3. Levels of appeal
a. 1st to the Secretaries / heads of agencies, instrumentalities,
government-owned or controlled corporations with original charters
b. 2nd to the Merit System Protection Board
c. 3rd to the Civil Service Commission (by protest questioning the
appointment)
d. 4th Judicial review first to the Court of Appeals, then to the
Supreme Court

4. The participation of the appointing authority in the protest filed with the
Civil Service Commission is indispensable inasmuch as the action of the
protestant is really against the determination made by the appointing
authority.

e. The right to present complaints and grievances


1. Complaints should be resolved at the lowest possible level in the department /
agency.

2. If it remains unresolved after exhausting all available remedies, the parties may
jointly refer the dispute to the Public Sector Labor Management Council
constituted under the Administrative Code of 1987.

f. The right not to be suspended or dismissed except for cause as provided by law
and after due process

g. Right to organize

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1. Government employees shall not be discriminated against in respect of
employment by reason of their membership or participation in employees
organizations.

2. Employment should not be subject to the condition that they shall not join or
shall relinquish membership in the organization.

3. Government authorities shall not interfere through acts designed to place


organizations under control of the government authorities.

4. Next-in-Rank rule
a. Not a mandatory requirement
1. The next-in-rank rule applies only in cases of promotion. It 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 positions. The person next-
in-rank is only given a preferential consideration for promotion to a vacant
position.

b. Reason for the rule


1. The preference given to old or permanent employees is because they are
assumed to have gained not only superior skills but also greater dedication to
the public service, provided that the acts of the appointing power are for the
best interest of the public service and the person chosen has the required
qualifications. (Torio v. Civil Service Commission, 209 SCRA 677 (1992);
Cabagnot v. Civil Service Commission, 223 SCRA 59 (1993))

c. Discretion of appointing authority


1. The next-in-rank rule is not absolute and it may be disregarded for sound
reasons made known to the next-in-rank.

2. The appointing authority is given wide discretion to fill the vacancy among the
several alternatives provided for by law such as through transfer, reinstatement,
reemployment, and appointment of outsiders with appropriate civil service
eligibility.

d. Overriding factor
1. The overriding factor for the next-in-rank rule is to foster a more efficient public
service.

Meram v. Edralin (154 SCRA 238 [1987])

Edralin was appointed as Administrative Officer V in the Bureau of Forest Development although
she was 9 or 10 salary ranges below Meram, who was next-in-rank. Meram appealed to the Merit
Systems Board which found (together with the Civil Service Commission) that Edralin was not next-
in-rank. But because of a letter-petition to the President where she identified herself as the wife of
Efren Edralin of Ilocos Norte, the Office of the President ordered her appointment.

Edralin is not an employee next-in-rank to the vacated position, and although there is no mandatory
nor peremptory requirement that persons next-in-rank are entitled to preference in appointments,
the very purpose of the Civil Service law dictates that persons who are qualified and next-in-rank
should be given preferential consideration when filing up a vacated position through promotion.

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Appointments under the Civil Service law should be based on merit and fitness and should never be
based on how intimate a friend or how closely related an appointee is to the powers that be. And
granting that Edralin possesses the qualifications required for the contested position, it cannot be
denied that Meram equally possesses the same qualifications, if not in greater degree, and more
importantly, she is next-in-rank to the vacated position and thus deserves to be appointed to the
disputed item.

5. Personnel actions
a. Personnel action refers to any action denoting movement or progress of personnel
in the civil service which must be in accordance with the rules or standards
promulgated by the Civil Service Commission. Personnel actions include the
following:

1. Appointment through certification


a. Appointment through certification is issued to a person selected from a list
of qualified persons certified by the Civil Service Commission from an
appropriate register or eligibles (list of those who passed competitive
examinations) and who meets all the other requirements of the position.
(Presidential Decree No. 807, Section 24(a))

2. Promotion
a. It refers to advancement from one position to another with an increase in
duties and responsibilities as authorized by law and usually accompanied by
an increase in pay. The movement may be from one department or agency
to another, or from one organization unit to another in the same department
or agency. (Presidential Decree No. 807, Section 24(b))

b. Increase in salary is merely incidental and not determinative of whether there


was a promotion. An upward vertical movement of the employees rank or
position is necessary. (Phil. Telegraph & Telephone Corporation v. Court of
Appeals, 412 SCRA 263 (2003))

c. An employee cannot be compelled to accept a promotion because


promotion is in the nature of a gift or reward which the employee has a right
to refuse.

3. Transfer
a. It refers to movement from one position to another of equivalent rank, level,
or salary without break in service involving issuance of appointment.

b. It is not considered disciplinary when made in the interest of public service,


in which case, the employee shall be informed of the reasons therefor. If
employee believes that there is no justification for the transfer, he may
appeal the matter to the Civil Service Commission.
c. Transfer may be from one department or agency to another (detail), or from
one organizational unit to another within the same agency or department
(reassignment). Movement from non-career service to career service shall
not be considered a transfer. (Presidential Decree No. 807, Section 24(c))

d. Temporary transfer or assignment is permissible even without the


employees consent, except in cases where the transfer is:
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1. A preliminary step to removal
2. A scheme to lure the employee away from permanent position
3. Designed to indirectly terminate services / force resignation (Benjamin
v. Court of Appeals, 209 SCRA 644 (1992))

4. Reinstatement
a. It refers restoration to a state or condition from which one has been
removed or separated. (Viernes v. National Labor Relations Commission,
400 SCRA 557 (2003))

b. Who may be reinstated: any person who has been permanently appointed
to a position in the career service and who has, through no delinquency or
misconduct, been unlawfully separated therefrom.

c. The Civil Service Commission may order reinstatement of an employee who


has been unlawfully demoted or dismissed. (Gayatao v. Civil Service
Commission, 210 SCRA 183 (1992))

d. Receipt by an employee of separation and terminal leave pay are not fatal to
allow appeal for reinstatement where acceptance of the benefits was
dictated more by economic necessity rather than by a desire to leave
government employment. (Dytiaco v. Civil Service Commission, 211 SCRA
88 (1992))

e. Award of backwages is limited to a maximum of 5 years.

f. Mandamus is available where reinstatement involves the exercise of


discretion by the appointing power. (Torregoza v. Civil Service Commission,
211 SCRA 230 (1992))

5. Reemployment
a. Persons who have been appointed permanently to career positions and
separated as a result of the reduction in work force and / or reorganization
may be re-employed. (Presidential Decree No. 807, Section 24(e))

6. Detail
a. It refers to the movement of an employee from one department or agency to
another without the issuance of appointment.

b. It is allowed only for a limited period in case of employees occupying


professional / technical / scientific positions.

c. If the employee believes that there is no justification for the detail, he may
appeal his case to the Civil Service Commission but the decision to detail
the employee shall be executory pending appeal, unless the Civil Service
Commission orders otherwise. (Presidential Decree No. 807, Section 24(f))

7. Reassignment
a. An employee may be reassigned from one organizational unit to another in
the same department but such reassignment shall not involve a reduction in
rank, status or salary. Otherwise, the reassignment constitutes constructive
removal which is violative of the right to security of tenure. (Presidential

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Decree No. 807, Section 24 (g); Bentain v. Court of Appeals, 209 SCRA 644
(1992))

b. Reassignment does not require the issuance of an appointment.

8. Demotion
a. It refers to movement from one position to another involving the issuance of
an appointment with diminution in duties, responsibilities, status, grade or
rank which may or may not involve reduction in salary. (Omnibus Rules
Implementing Book V of the Administrative Code of 1987, Rule VII, Section
11)

b. The assignment of an employee to a less important position in the same


service with lower rate of compensation is tantamount to removal if no
cause is shown for it. (Domingo v. Carague, 456 SCRA 450 (2005))

6. Rights under the Revised Government Service Insurance Act


a. Covered employees:
1. All government employees upon assumption of office pursuant to a valid
appointment / election and oath of office
2. Barangay and sanggunian officials who receive basic pay / salary
3. Elective officials during their term

b. Excluded from compulsory membership in the GSIS:


1. Uniformed members of the Armed Forces of the Philippines and the Philippine
National Police
2. Those not receiving basic pay / salary (e.g. only per diems, honoraria,
allowances)

c. All covered employees are mandated to pay contributions, except members of the
judiciary and the Constitutional Commissioners.

d. Covered employees are entitled to the following benefits:


1. Retirement benefits
a. Available to a member who:
1. Has at least 15 years of service
2. Is at least 60 years of age
3. Is not receiving a monthly pension benefit from permanent total
disability

b. Retirement is compulsory at age of 65 with at least 15 years of service. If


employee has less than 15 years of service, he shall be allowed to continue
in the service to complete the 15 years. (Presidential Decree No. 1146,
Section 13)

2. Separation benefits
a. It is in the form of a cash payment equivalent to 100% of his average
monthly compensation for each year of service he paid contributions but not
less than P12,000.00 payable upon reaching 60 years of age upon
separation, whichever comes later, or cash payment equivalent to 18 times
the basic monthly pension at the time of resignation or separation and a life
pension at start of age 60 to be given to those separated from service with

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at least 15 years service and are below 60 years of age. (Presidential
Decree No. 1146, Section 11)

3. Unemployment or involuntary separation benefits


a. It is payable to one who is:
1. A permanent employee involuntarily separated from the service due to
reorganization, merger, or privatization; and
2. Has paid the stipulated 12 monthly integrated contributions

b. It is in the form of monthly cash payments equivalent to 50% of the average


monthly compensation. Duration on the length of service ranges from 2 to 6
months. (Presidential Decree No. 1146, Section 12)

4. Disability benefits
a. Conditions for availment of permanent total or partial disability benefits
effective from the date of disability:
1. Employee is in the service at the time of disability; or
2. Is separated from the service and has paid at least 36 monthly
contributions within the 5-year period immediately preceding the
disability or has paid a total of at least 180 monthly contributions prior to
the disability. (Presidential Decree No. 1146, Sections 15-17)

b. A member who suffers temporary total disability for reasons not due to
grave misconduct, notorious negligence, habitual intoxication or willful
intention to kill himself or another may be entitled to benefits if he:
1. Is in the service at the time of disability and has exhausted his sick leave
credits; or
2. If separated, has rendered at least 3 years of service and has paid at
least 6 monthly contributions in the 12-month period immediately
preceding the disability. (Presidential Decree No. 1146, Section 18)

5. Survivorship benefits
a. Available to the beneficiary when a member or pensioner dies.

b. Survivorship pensions shall consist of:


1. Basic survivorship pension which is 50% of the basic monthly pension;
and
2. Dependents pension not exceeding 50% of the basic monthly pension.
(Presidential Decree No. 1146, Section 20)

6. Funeral benefits
a. The amount of funeral benefit shall be determined by the GSIS in the rules
and regulations but shall not be less than P12,000.00 to be increased to
P18,000.00 after 5 years upon the death of a qualified active member,
separated member, pensioner, and retiree. (Presidential Decree No. 1146,
Section 23)

7. Life insurance benefits


a. All employees shall be compulsorily covered with life insurance, except
members of the Armed Forces of the Philippines and the Philippine National
Police, and to automatically take effect as follows:

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1. For those employed after the effectivIty of R.A. No. 8291, their insurance
shall take effect on the date of their employment;
2. For those whose insurance will mature after the effectivity of the Act,
their insurance shall be deemed renewed on the day following the
maturity or expiry date of their insurance; and
3. For those without any life insurance as of the effectivity of the Act, their
insurance shall take effect on the day following said effectivity.
(Presidential Decree No. 1146, Section 24)

7. Pension defined
a. Pensions are regular allowances paid to an individual or group of individuals by the
government in consideration of services rendered, or in recognition of merit, civil or
military. (U.S. v. Hall, 98 U.S. 343)

8. Nature and purpose of pension


a. It is not a gratuity but rather of form of deferred compensation for services
performed. The right vests upon entry into the retirement system and becomes an
enforceable obligation in court upon fulfillment of all conditions for its payment.

b. Employees have a vested right in the pension where the pension is part of the terms
of employment and employee participation in the pension plan is mandatory. As
such, pension rights may not be taken away without due process of law. (GSIS v.
Montesclaros, 434 SCRA 441 (2004))

c. It is in the nature of retained wages and reward for giving the best years of
employees lives in the service of their country. Pension serves the purpose of:
1. Enticing or encouraging faithful and competent employees to enter or remain in
the service; and

2. Allowing the employees who have become incapacitated by illness or accident


to continue discharging his duties to retire from the service with a relative
financial security.

9. Pension and gratuity distinguished

Gratuity Pension
A donation and act of pure liberality on the part An act of justice emanating from desire to
of the State. provide adequate compensation for services
already rendered.

a. GSIS benefits are not gratuities but are considered contractual obligations.

10. Construction of retirement laws


a. Retirement laws or statutes creating pensions should be liberally construed and
applied on favor of the persons intended to be benefited by them. All doubts as to
the intent of the law should be resolved in favor of the retiree so that the efficiency,
security, and well being of government employees may be enhanced.

b. Retirement benefits, gratuity and separation pay are invariably computed on the
basis of the highest salary, emoluments, and allowances received.

c. The doctrine of liberal construction of retirement laws cannot be applied where clear
intent of applicable laws and rules are demonstrably against retirees claim.
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d. R.A. No. 9946 applies retroactively to those who died or were killed while they were
in government service (Application for Survivorship Pension Benefits of Mrs. Pacita
Gruba, A.M. No. 14155-Ret., 19 November 2013).

e. According to Section 3 of Republic Act No. 9946, survivorship pension benefits are
given to surviving spouses of retired judges or justices or surviving spouses of
judges or justices who are eligible to retire optionally. When the judge or justice is
neither retired nor is eligible to retire, his or her surviving spouse not entitled to those
benefits (Application for Survivorship Pension Benefits of Mrs. Pacita Gruba, A.M.
No. 14155-Ret., 19 November 2013).

f. A surviving spouse who received survivorship pension benefits in good faith no


longer needs to refund such pensions (Application for Survivorship Pension Benefits
of Mrs. Pacita Gruba, A.M. No. 14155-Ret., 19 November 2013).

Santiago v. Commission on Audit (199 SCRA 125 [1991])

Petitioner was a COA State Auditor who was detailed to MIAA and subsequently designated as
MIAAs Acting Assistant General Manager for Finance and Administration. He collected differential
salary under this position. When he retired, recomputation of his retirement benefits was denied on
the ground that the additional compensation he received (differential salary as Acting Assistant
General Manager) was merely an honorarium and that he was not appointed but merely designated.
Executive Order No. 966 states that retirement benefits are limited to the highest salary rate actually
received as fixed by law or indicated in a duly approved appointment, and that honoraria are not
considered in the computation.

Salary differential should be included. Retirement benefit should be liberally construed. An


honorarium is defined as something given not as a matter of obligation but in appreciation for
services rendered; a voluntary donation in consideration of services which admit of no
compensation in money. The additional compensation given to the petitioner was in the nature of a
salary because he received it as a matter of right in recompense for services rendered by him as
Acting Assistant General Manager for Finance and Administration.

Strictly speaking, while appointment is the selection by the proper authority of an individual who is to
exercise the functions of a given office, designation, on the other hand, connotes merely the
imposition of additional duties, usually by law, upon a person already in the public service by virtue
of an earlier appointment / election. A person may also be designated in an acting capacity, as
when he is called upon to fill a vacancy pending the selection of a permanent appointee thereto, or
more usually, the return of the regular incumbent. It is said that appointment is essentially executive
while designation is legislative in nature.

In Executive Order No. 966, however, the term appointment was used in a general sense to
include the term designation and no distinction was intended between the two terms. The
Supreme Court thinks that this is to be the more reasonable interpretation, especially considering
that the provision includes in the highest salary rate compensation for substitutionary services or in
an acting capacity.

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Allarde v. Commission on Audit (218 SCRA 227 [1993])

Petitioners request for inclusion of the monthly allowance he had been receiving from the
municipality where he was assigned as MTC judge in the computation of retirement benefits was
denied by the Commission on Audit on the ground that the allowances contemplated by the
retirement law are transportation, living, and representation allowances.

Allowances received from municipality should not be included and should instead be treated as
honorarium. Inasmuch as the law limits the computation of the lump sum of 5 years gratuity to the
highest monthly salary plus the highest monthly aggregate of transportation, living, and
representation allowances that the judge was receiving on the date of his retirement, it is
understood that other allowances are excluded.

Letter of Instruction No. 1418 which authorizes local governments to pay additional allowances to
judges of the courts within their territorial jurisdiction, limits the amount of such allowance and does
not provide that it shall be treated as part of the judges remuneration in computing his retirement
benefits. The word may signifies that the allowance my not be demanded as a matter of right but
is entirely dependent on the will of the municipality concerned. It should be treated as an
honorarium, an amount that is given not as a matter of obligation but in appreciation for services
rendered; a voluntary donation in consideration for services which admit of no compensation in
money.

Government Service Insurance System v. Civil Service Commission (245 SCRA 179 [1995])

Belo served full-time as Vice-Governor on hold-over capacity and received compensation in the
form of per diems. However, no deductions for GSIS contributions were made from these salaries /
per diem.

An employee can avail of retirement benefits notwithstanding failure to make contributions to GSIS
for the duration she was receiving per diem as compensation. Per diem is compensation creditable
in computing retirement benefits / length of service. A per diem could rightfully be considered a
compensation or remuneration attached to an office. The per diems received by Belo during the
period that she acted in holdover capacity obviously were in the nature of compensation or
remuneration for her services as Vice Governor of the Province of Capiz, rather than as a
reimbursement for incidental expense uncured while away from her home base.

The basis for the provision on retirement benefits is service to the government. While GSIS is partly
dependent on contributions of members, the fact that these contributions are minimal when
compared to the amount of retirement benefits actually received shows that such contributions,
while necessary, are not absolutely determinative in drawing up criteria for those who would qualify
as recipients of the retirement benefit system.

In a sense, the contract made between the GSIS and the government employee is done on a take-
over-or-leave-it basis, that is, it is virtually a contract of adhesion which gives the employee no
choice but to involuntarily accede to the deductions made from their oftentimes meager salaries. If
the GSIS did not deduct, it was by its own choice. Failure to deduct is not the fault of employees.
Moreover, the source of GSIS benefits is not in essence merely contractual; rather, it is a social
legislation. The situation can be rectified by deducting a reasonable amount corresponding to the
contributions which should have been deducted during the period from the amount of retirement
benefits accruing to them.

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Quaison, dissenting:

The GSIS is not obligated to grant retirement benefits to its members. Such obligation exists where
there is a contract of life or retirement insurance between the GSIS and the government employee.

Premiums payable by the members are the lifeblood of the retirement scheme. It would be unjust
for Belo to compel GSIS to grant her retirement benefits when she never remitted the employers
and her share of contributions for the period. To countenance such argument would result in an
equitable situation where the GSIS is exposed to a risk without the benefit of receiving any
contribution or premium. The GSIS was never intended to be a charitable institution for government
retirees. It is only fair that the GSIS be entitled to the payment of premiums as soon as it is exposed
to the risk insured against, whether it be a life or annuity insurance.

The most liberal application that can be given to the ruling of the GSIS with respect to services paid
on per diem basis is to limit it to cases where the retiree has paid the corresponding retirement
premiums during said periods.

Conte v. Commission on Audit (264 SCRA 19 [1996])

The Commission on Audit disallowed the practice of SSS employees of availing retirement benefits
under Republic Act No. 660 and claiming the financial benefits granted under SSS Resolution No. 56
equivalent to the difference between what a retiree would have received under Republic Act No.
1616, less what he was entitled to under Republic Act No. 660. The Commission on Audit said that
his practice results in the increase of benefits beyond what is allowed by retirement laws and the
scheme of the SSS resolution partook of the nature of a supplementary pension / retirement plan.

The financial assistance package may have been instituted for noble, altruistic purposes.
Nevertheless, it is beyond dispute that the package constitutes a supplementary retirement plan.
SSS had no authority to maintain and implement such retirement plan, particularly in the face of the
statutory prohibition. The SSS cannot, in the guise of rule-making, legislate or amend laws or worse,
render them nugatory.

Brion v. South Philippine Union Mission of the Seventh Day Adventist Church (307 SCRA 497
[1999])

Brion is a member of the Seventh Day Adventist. When he retired, he received a monthly amount as
retirement benefit. When he was excommunicated, however, the monthly retirement benefit was
discontinued.

Brion is entitled to his benefits. The conditions of eligibility for retirement must be met at the time of
the retirement at which juncture, the right to retirement benefits or pension, if the employee is
eligible, vests in him. In this case, Brion has already a vested right to receive retirement benefits, a
right which cannot be taken away from him by expulsion or excommunication, this not being a
ground for termination of retirement benefits under the SDAs retirement plan.

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Re: Request of Chief Justice Panganiban (A.M. No. 10-9-15-SC, 12 February 2013)

Under the old Administrative Code (Act No. 2657), a government employee includes any person in
the service of the Government or any branch thereof of whatever grade or class. A government
officer, on the other hand, refers to officials whose duties involve the exercise of discretion in the
performance of the functions of government, whether such duties are precisely defined or not.
Clearly, the law did not require a specific job description and job specification. Thus, the absence of
a specific position in a governmental structure is not a hindrance for the Court to give weight
to ones government service as legal counsel and consultant, and consequently consider such as
creditable government service for the purpose of computing retirement benefits.

11. Right to reimbursement and indemnity


a. When a public officer, in the due performance of his duties, has been expressly or
impliedly required by law to incur expenses on the public account, not covered by
his salary or commission and not attributable to his own neglect or default, the
reasonable and proper amount thereof forms a legitimate charge against the public
for which he should be reimbursed.

b. The officer is entitled to be indemnified by the public against the consequences of


acts which he has been expressly or impliedly required to perform upon the public
account, and which are not manifestly illegal and which he does not know to be
wrong.

12. Right to reinstatement and back salary


a. Reinstatement and back salary or wages are separate and distinct reliefs given to an
illegally dismissed official or employees.

Reinstatement Backwages
Restoration to a state or condition from which Restores the income that was lost by reason of
one had been removed or separated. One unlawful dismissal.
assumes the position he had occupied prior to
the dismissal.

b. Where removal or suspension lawful


1. An officer who has been lawfully separated or suspended from his office is not
entitled to compensation for the period during which he was so suspended or
separated, even if it be subsequently determined that the cause for which he
was suspended was insufficient.

2. The reason for this is that salary and perquisites are the reward of express or
implied services and therefore cannot belong to one who could not lawfully
perform such services.

3. Denial of salary to an employee during the period of his suspension, if he should


later be found guilty, is proper because he had given ground for his suspension.

c. Where removal or suspension unlawful


1. Where an office entitled to fixed annual salary was unlawfully removed or
suspended and was prevented for a time by no fault of his own from performing
the duties of the office, it was held that he might recover, and that the amount

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that he had earned in other employment during his unlawful removal should not
be deducted from his unpaid salary.

2. He may recover even if the salary has been paid to another appointed to fill the
vacancy unlawfully created.

3. The no work, no pay principle does not apply where it has been sufficiently
shown that a public official was wrongfully prevented from entering office and
carrying out his duties.

4. It is immaterial if the appointment is temporary because what is material is the


act of wrongful deprivation of office, and not the nature of the appointment.

5. The office claiming back his office is not entitled to the salary during the
pendency of the case.

d. Where suspended employee later found innocent


1. To deny an innocent employee of his backwages during his suspension would
be tantamount to punishing him after his exoneration from the charges which
caused his dismissal from the service.
2. Before a public official or employee who has been reinstated is entitled to
payment of salaries withheld, it should be shown that the suspension or removal
was unjustified or illegal or that he was innocent or acquitted of the charge
preferred against him.
3. A partys claim for backwages may be the appropriate subject of an ordinary
civil action, not mandamus.

e. Where employee not completely exonerated or reinstatement not the result of


exoneration
1. If the employee is not completely exonerated of the charges, such as when the
penalty of dismissal is reduced to mere suspension or to affine, he would not be
entitled to the payment of his back salaries. (Castro v. Gloria, 363 SCRA 417
[2001])

f. Where another appointed to position of illegally dismissed or suspended employee


1. Where a regular government employee was illegally suspended or dismissed,
legally speaking, his position never became vacant and he is considered not to
have left his office. Thus, the new appointment is not valid. At most, the
present incumbents occupancy or tenure is temporary.

2. Even assuming the present incumbents tenure was permanent and fell under
the protection of the Constitution, his removal to give way to claimants superior
right may be considered as removal for cause.

g. Duty of plaintiff seeking reinstatement to prove his right to the office


1. Where a plaintiff seeks reinstatement, he must prove his right to office, failing
which will cause failure of the action even if appointment of the successor is first
in issue. (Olegario v. Lacson, 97 Phil. 75 (1955))

h. Right to reinstatement to former or at least comparable position


1. A person suspended or dismissed from public office through no fault of his own
is entitled to be reinstated to his former position or at least to a comparable

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position. If no longer feasible, the suspended or dismissed person shall be
entitled to back salaries. (Laganapan v. Asedillo, 154 SCRA 377 (1987))

i. Duty to act with reasonable diligence in asserting right to reinstatement


1. A public officer or employee who has been removed from his position must act
with reasonable diligence to have himself reinstated. His right to reinstatement
may be lost by unreasonable delay in asserting his rights which may be validly
considered as a waiver or renunciation.

2. Petition for quo warranto and mandamus affecting titles to public office must be
filled within 1 year from the date the petitioner is ousted from his position.

3. Claim for back salaries and damages is also subject to a 1 year prescriptive
period.

j. Where pardon extended to convicted employee


1. A pardon, unless expressly grounded on the persons innocence or unless the
right to public office is expressly restored by it, does not ipso facto restore a
convicted felon to public office. It merely restores his eligibility for appointment
to that office.

2. The grantee of pardon cannot be entitled to receive backpay for lost earnings
and benefits because pardon implies guilt.

13. Rights to property, devices and inventions


a. Title to public office carries with it the right to the insignia and property thereof
during the incumbency of the officer.

b. Whether the public owns the records, discoveries, inventions, devices, data and the
like, made or prepared by an officer while occupying the office shall be determined
as follows:
1. If indispensable in the proper conduct of the office, the officer may not take
them as his own property even if he prepared them on his own time and paid for
them with his own funds.

2. If devices are not required by law, not indispensable in the proper conduct of
the office, and prepared by the officer apart from his official duties, officer may
acquire the property upon leaving the office.

c. A government employee shall own whatever he may conceive and perfect even
when he created them during the performance of the duties of his office, unless he
has merely produced that which he was employed to invent, or he was employed to
use his inventive faculties for the governments benefit.

14. Right to recover reward for performance of duty


a. General rule: It is the duty of a public officer to execute the functions of his office.
Thus, unless expressly authorized by law, he will not be permitted to recover a
reward offered by the public for the performance of an act which was part of his
official duty to perform.

b. Exceptions: Section 281 of the National Internal Revenue Code grants an informers
award, under certain conditions, to persons instrumental in the discovery and
seizure of smuggled goods.
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For violation of the National Internal Revenue Code -- Any person, except an internal revenue
official or employee, or other public official, or his relative within the 6th degree of consanguinity, who
voluntarily gives definite and sworn information, not yet in the possession of the Bureau of Internal
Revenue leading to the discovery of frauds upon the internal revenue laws or violations of any of the
provisions thereof, thereby resulting in the recovery of revenues, surcharges and fees and / or the
conviction of the guilty party and / or the imposition of any fine or penalty, shall be rewarded in a
sum equivalent to fifteen per centum of the revenues, surcharges or fees recovered and / or file or
penalty imposed and collected. The same amount of reward shall also be given to an informer
where the offender has offered to compromise the violation of law committed by him and his offer
has been accepted by the Commissioner and in such case, the fifteen per centum reward fixed
herein shall be based on the amount agreed upon in the compromise and collected from the
offender: Provided, That should no revenue, surcharges, or fees be actually recovered or collected,
such person shall not be entitled to a reward: Provided, further, That the information mentioned
herein shall not refer to a case already pending or previously investigated or examined by the
Commissioner or any of his deputies, agents: Provided, finally, That the reward provided herein shall
be paid under regulations issued by the Commissioner of Internal Revenue with the approval of the
Secretary of Finance.

For discovery and seizure of smuggled goods. -- To encourage the public and law-enforcement
personnel to extend full cooperation in eradicating smuggling, a cash reward equivalent to fifteen per
centum of the fair market value of the goods smuggled and confiscated goods shall be given to
persons instrumental in the discovery and seizure of such smuggled goods. (National Internal
Revenue Code, Section 281)

Part 6. Disabilities and Inhibitions of Public Officers

A. Under the Constitution

1. Disabilities of President, Vice-President, Members of Cabinet and their Deputies


and Assistants
a. During their tenure, they are subject to the following prohibitions:
3. They shall not hold, unless otherwise provided in the Constitution itself, any
other office or employment;

4. They shall not practice any other profession;

5. They shall not participate, directly or indirectly, in any business;

6. They shall not be financially interested, directly or indirectly, in any contract with
or in any franchise or special privilege granted by the government or any
subdivision, agency or instrumentality thereof including any government-owned
or controlled corporation or their subsidiaries; and

7. They shall strictly avoid conflict of interest in the conduct of their office

8. The President is prohibited during his tenure from appointing his spouse and
relatives by consanguinity or affinity within the 4th civil degree to any of the
positions mentioned. (Constitution, Article VII, Section 13)

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b. The purpose of the prohibition is the ensure that the officials will devote their full
time and attention to their official duties, prevent them from extending special favors
to their own private business and assure the public that they will be faithful and
dedicated in the performance of their functions.

2. Disabilities of Members of Congress


a. Right of members of Congress to hold any other office or employment
3. 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; (Constitution,
Article VI, Section 13)

4. 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;
(Constitution, Article VI, Section 13)

b. Right to engage in certain activities


3. No Senator or Member of the House of Representatives may personally appear
as counsel before any court of justice or before the Electoral Tribunals, or quasi-
judicial and other administrative bodies; (Constitution, Article VI, Article 14)

4. Neither shall he, directly or indirectly, be interested financially in any contract


with, or in any franchise or special privilege granted by the Government, or any
subdivision, agency, or instrumentality thereof, including any government-
owned or controlled corporation, or its subsidiary, during his term of office. He
shall not intervene in any manner before any office of the Government for his
pecuniary benefit of where he may be called upon to act on account of his
office; (Constitution, Article VI, Article 14)

5. He shall not intervene in any cause or merit before any office of the government
for his pecuniary benefit or where he may be called upon to account of his office
or to give his vote as a member of Congress. (Constitution, Article VI, Article 14)

3. Disqualifications to hold any other office or employment in the government


a. A member of Congress is disqualified to hold 2 classes of office, namely:
3. Incompatible office
a. This includes any kind of 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.

b. Any other office or employment includes any position in the government


outside Congress including ex-officio membership of any non-congressional
body, committee, or commission, unless the second office or employment is
connected with or in aid of legislative duties.

c. The prohibitions rationale is the need for members of Congress to devote


their time and attention to the discharge of their legislative responsibilities.

d. A Senator or Representative who accepts any other office or employment in


the government during his term forfeits his seat.

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4. Forbidden office
a. This refers to any office created or the emoluments of which have been
increased during the term for which he was elected, not merely during his
tenure or period of actual incumbency.

b. The period of ineligibility does not end until after the member shall have left
his office by the termination of his term (not tenure). Thus, even if a member
of Congress resigns or losses his seat before the end of his term, he shall
remain ineligible for appointment to such office.

b. The purpose of the disqualification is to prevent members of Congress from being


tempted to create office or increase their emoluments for personal gain.

4. Prohibition against financial interest


a. Appearance as counsel before any court of justice, etc.
3. A member of Congress shall not appear personally as counsel before any court
of justice or before the Electoral Tribunals or quasi-judicial and other
administrative bodies.

4. The purpose of the prohibition is to remove any possibility of influence upon the
judges of these courts or heads of members of these bodies who might be
swayed in their decisions by their hope for future appointments to higher
positions. The same is true for the prohibition to appear before the Electoral
Tribunals, as well as the inconsistency of a members position in representing a
party who may not be entitled to be a member of the body to which he belongs.

b. Financial interest in any contract with the government


3. He shall not, directly or indirectly, be interested financially in any contract with
the government during his term of office, whether as an individual or as a
member of a partnership or as an officer of a corporation.

4. The scope of indirect financial interest includes the spouse, but not the son or
brother of a member of Congress, unless used as a dummy or the member is
pecuniarily interested in the contract.

5. The prohibition seeks to prevent the use of whatever influence and pressure in
the award of government contracts.

6. Financial interest in any contract refers to interest involving financial


investment or business out of which a member of Congress is to derive profit or
gain (e.g., subscription to the capital stock of a government corporation).
Borrowing money from a government-owned or controlled bank does not
involve financial investment from which the borrower expects to obtain profit.

c. Financial interest in any special privilege by the government


3. He shall not, directly or indirectly, be interested financially in any franchise or
special privilege granted by the government during his term.

d. Intervention in certain matter


3. He shall not intervene in certain matter before any office of the government for
his pecuniary benefit or where he may be called upon to act on account of his
office or to give his vote as member of Congress.

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4. The prohibition seeks to insure that his every vote on any pending legislative
measure shall be dictated only for considerations of public good.

5. Disabilities of Members of Constitutional Commissions


a. The disabilities upon Members of Constitutional Commissions during their
continuance in office are similar to those imposed on the President and Vice-
President, namely:
3. No member of a Constitutional Commission shall, during his tenure, hold any
other office or employment. (Constitution, Article IX-A, Section 2)

4. Neither shall he engage in the practice of any profession or in the active


management or control of any business which in any way may be affected by
the functions of his office. (Constitution, Article IX-A, Section 2)

5. Nor shall he be financially interested, directly or indirectly, in any contract with,


or in any franchise or privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including government-owned or
controlled corporations or their subsidiaries. (Constitution, Article IX-A, Section
2)

6. Prohibition against designation of members of judiciary to administrative positions

The Members of the Supreme Court and of other courts established by law shall not be designated
to any agency performing quasi-judicial or administrative functions. (Constitution, Article VIII,
Section 12)

a. The President is prohibited from designating members of the Supreme Court and
other courts established by law to any agency performing quasi-judicial and / or
administrative functions.

b. Reasons for the prohibition:


3. Such designation violates the doctrine of separation of powers between the
judicial and executive branches of the government;

4. It may compromise the independence of members in the performance of their


judicial functions; and

5. It will result in further delay in the disposition of cases pending in court. (H.S. De
Leon, Philippine Constitutional Law: Principles and CASES (Vol. 2), pp. 556-557
(1999))

7. Prohibition against engaging in partisan political activities

No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or
partisan political campaign. (Constitution, Article IX-B, Section 2(4))

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Professionalism in the armed forces and adequate remuneration and benefits of its members shall
be a prime concern of the State. The armed forces shall be insulated from partisan politics.

No member of the military shall engage directly or indirectly in any partisan political activity, except
to vote. (Constitution, Article XVI, Section 5(3))

a. Partisan political activity and electioneering or partisan political campaign refer to


acts designed to have a candidate elected or not, or to promote the candidacy of a
person / s to a public office.

b. Elective officials and members of the Cabinet who are holding political offices are
not embraced in the prohibition. (Santos v. Yatco, 106 Phil. 754 (1959))

People v. De Venecia (14 SCRA 864 [1965])

De Venecia is a civil service employee prosecuted for electioneering because he distributed leaflets
supporting a candidate.

De Venecia is guilty of electioneering. The distribution of leaflets openly supporting a candidate was
undoubtedly aiding such candidate. It was not merely mentioning the candidate whom he
supported or a mere expression of his opinion on current political problems.

8. Prohibition against appointment of elective officials

No elective official shall be eligible for appointment or designation in any capacity to any public
office or position during his tenure.

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 corporations of their
subsidiaries. (Constitution, Article IX-B, Section 7)

a. Any elective official is disqualified for appointment or designation to any public office
or position during his tenure in office. He may be appointed provided he first
resigns from his seat.

9. Prohibition against holding more than one position by appointive officials

x x x 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 corporations of their
subsidiaries. (Constitution, Article IX-B, Section 7)

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a. Appointive officials may hold any other office or employment only when allowed by
law (may be totally unrelated) or required by the primary functions of his position
(when the functions are related).

10. Prohibition against acceptance of any present, etc., from any foreign state

No elective or appointive public officer or employee shall x x x accept without the consent of
Congress, any present, emolument, office, or title of any kind from any foreign government.
(Constitution, Article IX-B, Section 8)

a. The prohibition against acceptance of any present, emolument, or official title of any
kind from any foreign state or government is founded on a just jealousy of alien
influence in domestic affairs.

b. A private or personal gift to an official by the king or head of a government is


allowed. What is prohibited is a present officially offered by the government of the
foreign state.

11. Prohibition against receiving additional, double, or indirect compensation

No elective or appointive public officer or employee shall receive additional, double or indirect
compensation, unless specifically authorized by law x x x.

Pensions or gratuities shall not be considered as additional, double or indirect compensation.


(Constitution, Article IX-B, Section 8)

12. Prohibition against appointment of members of the armed forces to certain


positions

No member of the armed forces in the active service shall, at any time, be appointed or designated
in any capacity to a civilian position in the Government including government-owned or controlled
corporations or any of their subsidiaries. (Constitution, Article XVI, Section 5(4))

a. This rule is an expression of the doctrine of civilian supremacy over the military and
in respect of the principle that the soldiers job is to fight a war and not to run a
government.

13. Prohibition against grant of loan, guaranty or other form of financial


accommodation

No loan, guaranty, or other form of financial accommodation for any business purpose may be
granted, directly or indirectly, by any government-owned or controlled bank or financial institution to
the President, Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, and

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the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have
controlling interest during their tenure. (Constitution, Article XI, Section 6)

a. The prohibition seeks to prevent officials mentioned from making use of their
influence to secure such loan, etc., to benefit them.

b. The prohibition does not apply in the following instances:


3. If the loan is made not for a business purpose (e.g., housing loan);
4. Loan is made after tenure; or
5. It is given to a firm where he has no controlling interest.

B. Under existing laws

1. Prohibitions imposed on civil service officers or employees


a. Political activity

No officer or employee in the Civil Service including members of the Armed Forces, shall engage
directly or indirectly in any partisan political activity or take part in any election except to vote nor
shall he use his official authority or influence to coerce the political activity of any other person or
body. Nothing herein provided shall be understood to prevent any officer or employee from
expressing his views on current political problems or issues, or from mentioning the names of
candidates for public office whom he supports: Provided, That public officers and employees
holding political offices may take part in political and electoral activities but it shall be unlawful for
them to solicit contributions from their subordinates or subject them to any of the acts involving
subordinates prohibited in the Election Code. (Presidential Decree No. 807, Section 45)

3. Civil service officers / employees are prohibited from engaging in partisan


political activity, except if it is to vote. He may express his views on current
political problems or issues, and even the name of the candidate he is
supporting, but he cannot use his office to influence or coerce others, like
subordinates, to share his view.

b. Additional or double compensation

No elective or appointive public officer or employee shall receive additional or double


compensation unless specifically authorized by law nor accept without the consent of the President,
any present, emolument, office, or title of any kind from any foreign state. (Presidential Decree No.
807, Section 46)

3. The prohibition applies to both elective and appointive officials, except if the law
authorizes the compensation. Neither can those officials accept any title,
emolument or present from any foreign state unless the President consents
thereto.

c. Limitation on employment of laborer

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Laborers, whether skilled, semi-skilled or unskilled, shall not be assigned to perform clerical
duties. (Presidential Decree No. 807, Section 47)

d. Prohibition on detail or reassignment

No detail or reassignment whatever shall be made within three (3) months before any election.
(Presidential Decree No. 807, Section 48)

e. Nepotism

(a) All appointments in the national, provincial, city and municipal governments or in any branch or
instrumentality thereof, including government-owned or controlled corporations, made in favor of a
relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the
persons exercising immediate supervision over him, are hereby prohibited.

As used in this Section, the word "relative" and members of the family referred to are those related
within the third degree either of consanguinity or of affinity.

(b) The following are exempted from the operation of the rules on nepotism: (1) persons employed in
a confidential capacity, (2) teachers, (3) physicians, and (4) members of the Armed Forces of the
Philippines: Provided, however, That in each particular instance full report of such appointment shall
be made to the Commission.

The restriction mentioned in subsection (a) shall 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.

(c) In order to give immediate effect to these provisions, cases of previous appointments which are
in contravention hereof shall be corrected by transfer, and pending such transfer, no promotion or
salary increase shall be allowed in favor of the relative or relatives who were appointed in violation of
these provisions. (Presidential Decree No. 807, Section 49)

1. The prohibition on nepotism includes all appointments in the government, including


government-owned or controlled corporations, made in favor of a relative of the
following:
a. The appointing authority;
b. The recommending authority;
c. The chief of the bureau or office;
d. Persons exercising immediate supervision over him.

2. Relatives include those related within the 3rd degree of consanguinity.

2. Prohibitions imposed on local government officials


a. Prohibited business and pecuniary interest

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3. "Engage in any business transaction with the local government unit in which he
holds office or has power of supervision, or with its boards, officials, agents or
attorneys, whereby money or any valuable consideration is paid or transferred
out of the coffers of the local government unit to such person or firm;

4. Hold interest in a cockpit or games licensed by the local government unit;

5. Purchase real estate or forfeited property in favor of the local government unit
for unpaid taxes or assessment, or legal process at the instance of the said local
government;

6. Be a surety for anyone contracting with the local government unit for which a
surety is required;

7. Possess or use public property of the local government unit for private
purposes; and

8. Do acts that are prohibited in other laws.

b. Practice of profession

(a) All governors, city and municipal mayors are prohibited from practicing their profession or
engaging in any occupation other than the exercise of their functions as local chief executives.

(b) Sanggunian members may practice their professions, engage in any occupation, or teach in
schools except during session hours: Provided, That sanggunian members who are also members of
the Bar shall not:

(1) Appear as counsel before any court in any civil case wherein a local government unit or any
office, agency, or instrumentality of the government is the adverse party;

(2) Appear as counsel in any criminal case wherein an officer or employee of the national or local
government is accused of an offense committed in relation to his office.

(3) Collect any fee for their appearance in administrative proceedings involving the local government
unit of which he is an official; and

(4) Use property and personnel of the government except when the sanggunian member concerned
is defending the interest of the government.

(c) Doctors of medicine may practice their profession even during official hours of work only on
occasions of emergency: Provided, That the officials concerned do not derive monetary
compensation therefrom. (Republic Act No. 7160, Section 90)

3. Governors and mayors are prohibited from practicing their profession other than
their functions as local chief executives.

4. Sangguinan members may continue practicing their profession or occupation,


except during session hours. However, Sangguinan members who are also
members of the Bar cannot:
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a. Appear as counsel before any court in any civil case where the local
government unit is the adverse party;

b. Appear as counsel in a criminal case where an officer or employee of the


national or local government is accused of an offense committed in relation
to his office;

c. Collect any fee for their appearance in administrative proceedings involving


his local government unit;

d. Use property or personnel of the government, except when he is defending


the interest of the government.

5. Doctors of medicine may practice their profession even during office hours if it is
an emergency and they do not receive compensation for it.

c. Partisan political activity

No local official or employee in the career civil service shall engage directly or indirectly in any
partisan political activity or take part in any election, initiative, referendum, plebiscite, or recall,
except to vote, nor shall he use his official authority or influence to cause the performance of any
political activity by any person or body. He may, however, express his views on current issues, or
mention the names of certain candidates for public office whom he supports. Elective local officials
may take part in partisan political and electoral activities, but it shall be unlawful for them to solicit
contributions from their subordinates or subject these subordinates to any of the prohibited acts
under the Omnibus Election Code. (Republic Act No. 7160, Section 93)

3. Career local officials or employees are not allowed to engage in partisan political
activity, except to vote. He may express his opinions on political issues or name
the candidate he supports.

4. Elective local officials may take part in partisan political activities but they
cannot solicit contributions from their subordinates.

3. Prohibitions against purchase of certain property at public auction

The following persons cannot acquire by purchase, even at a public or judicial auction, either in
person or through the mediation of another:

(1) The guardian, the property of the person or persons who may be under his guardianship;

(2) Agents, the property whose administration or sale may have been entrusted to them, unless the
consent of the principal has been given; !

(3) Executors and administrators, the property of the estate under administration; !

(4) Public officers and employees, the property of the State or of any subdivision thereof, or of any
government-owned or controlled corporation, or institution, the administration of which has been
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intrusted to them; this provision shall apply to judges and government experts who, in any manner
whatsoever, take part in the sale; !

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers
and employees connected with the administration of justice, the property and rights in litigation or
levied upon an execution before the court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights which may be the object of any litigation in which
they may take part by virtue of their profession. !

(6) Any others specially disqualified by law. (Civil Code, Article 1491)

The prohibitions in the two preceding articles are applicable to sales in legal redemption,
compromises and renunciations. (Civil Code, Article 1492)

a. The Civil Code of the Philippines prohibits the following persons from purchasing,
even at a public or judicial auction, whether in person or through another:
1. Public officers and employees:
a. Property of the State, local government unit, or government-owned or
controlled corporations, the administration of which has been entrusted to
them, including judges or any government officer who took part in the sale.

2. Justices, judges, prosecuting attorneys, clerks of court, employees connected


with the administration of justice:
a. The property and rights in litigation or taken by virtue of a writ of execution
before the court where they exercise their function.

b. The prohibition covers acquisition through assignment, sales in legal


redemption, compromises and renunciation.

c. For the prohibition to operate, the sale or assignment must take place
during the pendency of the litigation involving the property. If it is bought
after the decision became final, the prohibition no longer applies. (Macariola
v. Asuncion, 114 SCRA 77 (1982))

4. Prohibitions imposed on the Governor and personnel of the Central Bank


a. Outside interest of the Governor and Full-time Monetary Board

Outside Interests of the Governor and the Full-time Members of the Board. The Governor of the
Bangko Sentral and the full-time members of the Board shall limit their professional activities to
those pertaining directly to their positions with the Bangko Sentral. Accordingly, they may not accept
any other employment, whether public or private, remunerated or ad honorem, with the exception of
positions in eleemosynary, civic, cultural or religious organizations or whenever, by designation of
the President, the Governor or the full-time member is tasked to represent the interest of the
Government or other government agencies in matters connected with or affecting the economy or
the financial system of the country. (Republic Act No. 7653, as amended, Section 20)

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In addition to the prohibitions found in Republic Act Nos. 3019 and 6713, personnel of the Bangko
Sentral are hereby prohibited from:

(a) being an officer, director, lawyer or agent, employee, consultant or stockholder, directly or
indirectly, of any institution subject to supervision or examination by the Bangko Sentral, except
non-stock savings and loan associations and provident funds organized exclusively for employees of
the Bangko Sentral, and except as otherwise provided in this Act;

(b) directly or indirectly requesting or receiving any gift, present or pecuniary or material benefit for
himself or another, from any institution subject to supervision or examination by the Bangko Sentral; !

(c) revealing in any manner, except under orders of the court, the Congress or any government office
or agency authorized by law, or under such conditions as may be prescribed by the Monetary
Board, information relating to the condition or business of any institution. This prohibition shall not
be held to apply to the giving of information to the Monetary Board or the Governor of the Bangko
Sentral, or to any person authorized by either of them, in writing, to receive such information; and !

(d) borrowing from any institution subject to supervision or examination by the Bangko Sentral shall
be prohibited unless said borrowings are adequately secured, fully disclosed to the Monetary Board,
and shall be subject to such further rules and regulations as the Monetary Board may prescribe:
Provided, however, That personnel of the supervising and examining departments are prohibited
from borrowing from a bank under their supervision or examination. (Republic Act No. 7653,
Section 27)

b. The New Central Bank Act provides that the Governor of the Bangko Sentral ng
Pilipinas and the full-time members of the Monetary Board shall not accept any
other employment (public or private), remuneration or ad honorem, except:

3. Eleemosynary, civil, cultural, religious organizations

4. Designated by the President to represent the interest of the government or


agencies in matters affecting the economy or financial system.

c. Bangko Sentral Personnel are not allowed to:

3. Be an officer, director, stockholder, employee of any institution subject to the


supervision or examination of the Bangko Sentral ng Pilipinas, except non-
stock savings and loan associations and provident funds organized exclusively
for the Bangko Sentral ng Pilipinas;

4. Request or receive any gift, present, or pecuniary benefit for himself or for
another from any institution subject to Bangko Sentral ng Pilipinas supervision
or examination;

5. Reveal information relating to the condition of any institution subject to Bangko


Sentral ng Pilipinas supervision, except if ordered by the court or Congress, or
under conditions prescribed by the Monetary Board;

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6. Borrow from institutions subject to Bangko Sentral ng Pilipinas supervision,
except of the loan is adequately secured and fully disclosed to the Monetary
Board. Personnel in the examining or supervising departments are absolutely
prohibited from borrowing from banks under their supervision.

5. Prohibitions imposed on internal revenue officers and employees

x x x any officer or employee of the Bureau of Internal Revenue who divulges to any person or
makes known in any other manner than may be provided by law information regarding the business,
income, or estate of any taxpayer, the secrets, operation, style or work, or apparatus of any
manufacturer or producer, or confidential information regarding the business of any taxpayer,
knowledge of which was acquired by him in the discharge of his official duties, shall upon conviction
for each act or omission, be fined in a sum of not less than five thousand pesos but not more than
ten thousand pesos, or imprisoned for a term of not less than six months but not more than five
years or both. (Presidential Decree No. 1158, Section 269)

Any internal revenue officer who is or shall become interested directly or indirectly, in the
manufacture, sale, or importation of any article subject to tax under Title IV (now VI) of this Code or
in the manufacture or repair or sale of any die for the printing, or making of stamps, or labels shall,
upon conviction for each act or omission, be fined in a sum of not less than five thousand pesos but
not more than ten thousand pesos, or imprisoned for a term of not less than two years and one day
but not more than four years, or both. (Presidential Decree No. 1158, Section 270)

a. The National Internal Revenue Code imposes the penalty of fine, imprisonment, or
both, upon conviction on:

3. Any Bureau of Internal Revenue officer or employee who divulges to any person
or makes known in any other manner than may be provided by law information
regarding the following which he acquired in the discharge of his official duties:

a. Business, income, or estate of any taxpayer

b. Secrets, operation, style of work, or apparatus of any manufacturer or


producer

c. Confidential information regarding the business of any taxpayer.

4. Any internal revenue officer who is or shall become interested, directly or


indirectly in the following:

a. Manufacture, sale or importation of any article subject to tax under Title VI


(Excise Taxes on Certain Goods) of the National Internal Revenue Code

b. Manufacture or repair or sale of any dye for the printing or making of stamp
or labels.

6. Prohibited acts and transactions under the Anti-Graft and Corrupt Practices Act

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a. The following constitute corrupt practices by public officers under Republic Act No.
3019:

1. Influencing another public officer to perform an act constituting a violation of


lawful rules or an offense in connection with the official duties of the latter, and
vice versa; (Marubeni Corporation v. Lirag, 362 SCRA 620 (2001))

Persuading, inducing or influencing another public officer to perform an act constituting a violation
of rules and regulations duly promulgated by competent authority or an offense in connection with
the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit
such violation or offense. (Republic Act No. 3019, Section 3 (a)

a. To commit Section 3(a), it must be proven first that there is a violation of


rules and regulations or a commission of an offense.

Office of Court Administrator (OCA) vs. Nolasco, A.M. No. P-06-2148, March 4, 2009)

The act of Judge Misajon in inducing or persuading Nolasco to violate duly promulgated rules on the
administration of court funds may well constitute a violation of Section 3 (a) of RA 3019.

b. Material remuneration not necessary to commit Section 3(a) of Republic Act


No. 3019.

Villa vs. Sandiganbayan, et. al., (G.R. No. 87186 April 24, 1992, 208 SCRA 283 (1992])

The acts and omissions of Jimenez and Sucalit violated paragraph (a) of Section 3 of RA 3019 in
relation to the Unnumbered Presidential Memorandum. They were persuaded, induced or
influenced, and persuaded, induced or influenced each other, to award the purchase of electrical
items to an entity which was not even a supplier of electrical items in disregard of the Presidential
Memorandum directing the procurement of supplies by government offices should be from
reputable suppliers.

2. Requesting or receiving any gift or benefit in connection with any contract or


transaction between the government and a third party where the public officer is
required to intervene in his official capacity; or in consideration of any help given
for the procurement of a license or permit; (Peligrino v. People, 362 SCRA 683
(2001))

(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for
himself or for any other person, in connection with any contract or transaction between the
Government and any other part, wherein the public officer in his official capacity has to intervene
under the law. (Republic Act No. 3019, Section 3 (b))

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(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material
benefit, for himself or for another, from any person for whom the public officer, in any manner or
capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without prejudice to Section thirteen of this Act.
(Republic Act No. 3019, Section 3 (c))

a. Modes of committing Section 3 (b) of Republic Act No. 3019

Peligrino vs. People, (414 Phil. 94, 117 (2001)])

Section 3 (b) of RA 3019 penalizes three distinct acts - (1) demanding or requesting; (2) receiving; (3)
demanding, requesting and receiving - any gift, share, percentage, or benefit for oneself of for any
other person, in connection with any contract or transaction between the government and any other
party, wherein a public officer in an official capacity has to intervene under the law. These modes of
committing the offense are distinct and different from each other. Proof of the existence of any of
them suffices to warrant conviction. The lack of demand is immaterial. After all, Section 3 (b) of RA
3019 uses the word or between requesting and receiving.

Mejia vs. Pamaran, (160 SCRA 457)

In a prosecution under the foregoing provision of the Anti-Graft Law the value of the gift, money or
present, etc. is immaterial nor is a determinative of the guilt or innocence of the accused or the
penalty to be imposed. What is penalized is the receipt of any gift, present, share, percentage, or
benefit by a public officer in connection with a contract or transaction with the Government, wherein
the public officer has to intervene in his official capacity.

Garcia vs. Sandiganbayan, (G.R. No. 155574, Nov. 20, 2006)

To be convicted of violation of Section 3(b) of RA 3019, as amended, the prosecution has the burden
of proving the following elements: (1) the offender is a public officer; (2) who requested or received a
gift, a present, a share, a percentage, or a benefit; (3) on behalf of the offender or any other person;
(4) in connection with a contract or transaction with the government; (5) in which the public officer, in
any official capacity under the law, has the right to intervene.

It is very clear from Section 3(b) that the requesting or receiving of any gift, present, share,
percentage, or benefit must be in connection with "a contract or transaction" wherein the public
officer in his official capacity under the law. To establish the existence of the fourth element, the
relation of the fact of requesting and/or receiving, and that of the transaction involved must be
clearly shown.

a. Modes of committing Section 3 (c) of Republic Act No. 3019

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Mendoza-Ong vs. Sandiganyan, (G.R. NO. 146368-69, Oct. 23, 2003)

Section 3 (c) of RA 3019 applies regardless of whether the gift's value is manifestly excessive or not,
and regardless of the occasion. What is important here is whether the gift is received or to be given
by the public officer. The value of the gift is not mentioned at all as an essential element of the
offense charged under Section (c) and there appears no need to require the prosecution to specify
such value in order to comply with the requirements of showing a prima facie case.

3. Having a family member be employed in a private enterprise which has pending


transactions with his office.

(d) Accepting or having any member of his family accept employment in a private enterprise which
has pending official business with him during the pendency thereof or within one year after its
termination. (Republic Act No. 3019, Section 3 (d)

Valera vs. Ombudsman, (G.R.167278, February 27, 2008)

Section 4 of RA 3019 states that the term "family relation" includes the spouse, or relatives by
consanguinity or affinity in the third civil degree. Hence, the word "family", as used under Sec. 3(d)
of the same law, is not limited to the spouse or children under 18 years of age of the accused but
may also include his brother-in-law.

4. Causing any undue injury to any party including the government; or giving any
private party unwarranted benefit or advantage in the discharge of his official
functions through manifest partiality, evident bad faith or gross inexcusable
negligence; (Ponce de Leon v. Sandiganbayan, 186 SCRA 745 (1990); Mejia, Jr.
v. Sandiganbayan, 218 SCRA 219 (1992); Prieto v. Cariaga, 242 SCRA 315
(1995))

(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations charged with the grant of
licenses or permits or other concessions. (Republic Act No. 3019, Section 3 (e))

a. An accused can be found guilty under both modes in violating Section 3 (e)

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Victoriano vs. People, (G.R. Nos.171322-24, November 30, 2006)

Herein, the accused was found to have caused undue injury and give unwarranted benefits in
violation of Section 3(e) of RA 3019. Hence it is possible to violate said provision through bot modes
provided therein.

b. Meaning of manifest partiality, evident bad faith, and gross inexcusable


negligence

Fonacier, et. al. vs. Sandiganbayan, et. al, (238 SCRA 655 (1994])

There are three (3) distinct modes by which Sec. 3(e) of RA 3019 may be committed. First is
partiality, which is synonymous with "bias" which "excites a disposition to see and report matters as
they are wished for rather than as they are." Second is bad faith, which does not simply connote
bad judgment or negligence but imputes a dishonest purpose or some moral obliquity and
conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it
partakes of the nature of fraud. Third is a gross negligence, which is negligence characterized by
the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not
inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as
other persons may be affected. It is the omission of that care which even inattentive and
thoughtless men never fail to take on their own property. The use of the three modes in the same
information implies that offense may have been committed through any of the modes provided by
the law but not that the indictment charges three (3) distinct offenses.

c. Definition of undue injury

Llorente vs. Sandiganbayan, (350 Phil 820 (1998])

"Undue injury" means "actual damage." Undue has been defined as "more than necessary, not
proper, or illegal;" and injury as "any wrong or damage done to another, either in his person, rights,
reputation or property; that is, the invasion of any legally protected interest of another." Actual
damage, in the context of these definitions, is akin to that in civil law. However, unlike in actions for
torts, undue injury cannot be presumed but must be proven as one of the elements of the crime.

d. Conspiracy and reliance of public officers on subordinates

Arias vs. Sandiganbayan, (G.R. No. 81563, December 19, 1989, 180 SCRA 309)

In order for a department head to be liable for conspiracy, grounds other than his mere signature or
approval appearing on a voucher must be established. All heads of offices have to rely to a
reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase
supplies, or enter into negotiations. Hence, an examination in detail of the voucher by the head of
office is not required unless there is an additional reason to do so.

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Magsuci vs. Sandiganbayan, (G.R. No. 101545, January 3, 1995, 240 SCRA 13)

For conspiracy to exist, it is essential that there must be a conscious design to commit an offense.
But a person may be so held liable as a co-principal if he, by an act of reckless imprudence, has
brought about the commission of crime, without which it have been accomplished. When, however,
that infraction consists in the reliance in good faith, albeit misplaced, by a head of office on a
subordinate upon whom the primary responsibility rests, a conspiracy charge and conviction shall
not be sustained unless such is clearly established.

5. Neglect or refusal to act on matters pending before his office to obtain


pecuniary favor against the interested party.

(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a
reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly,
from any person interested in the matter some pecuniary or material benefit or advantage, or for the
purpose of favoring his own interest or giving undue advantage in favor of or discriminating against
any other interested party. (Republic Act No. 3019, Section 3 (f))

Coronado vs. Sandiganbayan, (225 SCRA 406 (1993])

The elements of Sec. 3(f) of RA 3019 are the following: a) The offender is a public officer; b) The said
officer has neglected or has refused to act without sufficient justification after due demand or
request has been made on him; c) The reasonable time has elapsed from such demand or request
without the public officer having acted on the matter pending before him; and d) Such failure to so
act is "for the purpose of obtaining directly or indirectly, from any person interested in the matter
some pecuniary or material benefit or advantage in favor of an interested party, or discriminating
against another.

To warrant conviction for a violation of Section 3(f) of RA 3019, it must be established that the
dereliction was for the purpose of (a) obtaining, directly or indirectly, from any person interested in
the matter some pecuniary or material benefit or advantage in favor of an interested party or (b)
discriminating against another interested party. It is not enough that an advantage in favor of one
party, as against another, would result from ones neglect or refusal.

6. Entering, on behalf of the government, into any contract or transaction


manifestly or grossly disadvantageous to the government, whether or not profit
will accrue to him;

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby.

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(Republic Act No. 3019, Section 3 (g))

Dans vs. People, (285 SCRA 504 (1998])

Sec. 3 (g) of RA 3019, particularly the phrase "manifestly and grossly disadvantageous to the
government", is not vague. This is because the assailed provision answers the basic query "What is
the violation?" Anything else is evidentiary matters which the law itself cannot possible disclose in
view of the uniqueness of every case. Also, the law is intended to be flexible in order to allow the
judge certain latitude in determining if the disadvantage to the government occasioned by the act of
a public officer in entering into a particular contract is, indeed, gross and manifest.

Note that the act prohibited under Sec. 3(g) is in the nature of a malum prohibitum thus, it is the
commission of the offence, not the character or effect thereof, that determines whether the provision
has been violated or not.

Marcos vs. Sandiganbayan, (297 SCRA 95 (1998])

One of the reasons why herein accused was not convicted under Sec. 3(g) of RA 3019 was because
it was not shown that he was present when the subject agreement was authorized and approved.
With respect to the element of being "manifestly and grossly disadvantageous to the government,"
the amount per se is insufficient to prove this element. There must be a standard by which the same
is weighed and measured. Also, other factors must be taken into consideration, such as the amount
in contracts covering properties within the vicinity of the subject premises.

Marquez vs. Sandiganbayan, et. al. G.R. Nos. 182020-24 and Caunan vs. People, et. al., (G.R.
Nos. 181999 & 1812001-4, September 2, 2009)

The elements of Sec. 3(g) of RA 3019 are the following: (1) that the accused is a public officer; (2)
that he entered into a contract or transaction on behalf of the government; and (3) that such contract
or transaction is grossly and manifestly disadvantageous to the government.

The fact of overpricing is embedded in the third criminal element of Section 3(g) of R.A. No. 3019. If
the evidence used to prove this element is the COA's finding of overpricing, the items on which the
finding was based on must be identical to the alleged overpriced item.

7. Having financial or pecuniary interest in any business or transaction which he is


prohibited by the Constitution from having any interest;

(h) Directly or indirectly having financing or pecuniary interest in any business, contract or transaction
in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited

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by the Constitution or by any law from having any interest. (Republic Act No. 3019, Section 3 (h))

Macariola vs. Asuncion, (199 Phil 295 (1982])

Respondent Judge cannot be held liable under the aforestated paragraph because there is no
showing that respondent participated or intervened in his official capacity in the business or
transactions of the Traders Manufacturing and Fishing Industries, Inc. In the case at the bar, the
business of the corporation in which respondent participated has obviously no relation or connection
with his judicial office. The business of said corporation is not that kind where respondent intervenes
or takes part in his capacity as Judge of the Court of First Instance. As was held in one case
intervolving the application of Article 216 of the Revised Penal Code which has a similar prohibition
on public officers against directly or indirectly becoming interested in any contract or business in
which it is his official duty to intervene, "(I)t is not enough to be a public official to be subject to this
crime; it is necessary that by reason of his office, he has to intervene in said contracts or
transactions; and, hence, the official who intervenes in contracts or transactions which have no
relation to his office cannot commit this crime." (People vs. Meneses, C.A. 40 O.G. 11th Supp. 164,
cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).

8. Becoming interested for personal gain in a transaction requiring approval of a


committee or board of which he is a member even if he votes against or does
not participate in the action of said board;

(i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any
transaction or act requiring the approval of a board, panel or group of which he is a member, and
which exercises discretion in such approval, even if he votes against the same or does not participate
in the action of the board, committee, panel or group.

Interest for personal gain shall be presumed against those public officers responsible for the approval
of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to
which they belong. (Republic Act No. 3019, Section 3(i))

9. Approving or granting license, privilege or permit in favor of any person known


to him to be not qualified or legally entitled to such. (Republic Act No. 3019,
Section 3)

(j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not
qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere
representative or dummy of one who is not so qualified or entitled. (Republic Act No. 3019, Section
3(j))

10. Divulging of confidential information.

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(k) Divulging valuable information of a confidential character, acquired by his office or by him on
account of his official position to unauthorized persons, or releasing such information in advance of its
authorized release date. (Republic Act No. 3019, Section 3(k))

b. Penalties: imprisonment, perpetual disqualification from office, confiscation,


forfeiture. (Republic Act No. 3019, Section 9)

c. Suspension from office is meted to an incumbent public officer whose criminal


prosecution under Republic Act No. 3019 or any offense involving fraud upon the
government is pending. (Republic Act No. 3019, Section 13; Miranda v.
Sandiganbayan, 464 SCRA 165 (2005))

d. The term office applies to any office which the public office is holding during the
pendency of the criminal case. Thus, if X was charged under Republic Act No. 3019
for acts committed when he was still mayor at the time when he was already
governor will still be suspended from that office. (Deloso v. Sandiganbayan, 173
SCRA 409 (1989); Bayot v. Sandiganbayan, 128 SCRA 383 (1984))

e. Republic Act No. 3019 applies to both public officers and private persons

Meneses v. People (153 SCRA 303 (1987])

Section 1 of the law makes clear the legislative intention to make application of the statute extend
both to public and private persons.

The policy of the Philippine government, in line with the principle that a public office is a public trust
is to repress certain acts of public officers and private persons alike which constitute graft or
corruption practices or which may lead thereto.

f. One may be charged with violating Republic Act No. 3019 in addition to a felony
under the Revised Penal Code for the same delictual act, either concurrently or
subsequently. In this case, there will be no double jeopardy.

Ramiscal vs. Sandiganbayan, et. al., (G.R. Nos. 169727-28, August 18, 2006)

If in a deed of sale, the real property covered is underpriced by a public officer and his co-
conspirators to conceal the correct gains and documentary stamp taxes due on the sale causing
injury to the government, the offenders thereby commit two crimes- (a) falsification of public
document defined in paragraph 4, Article 171 of the Revised Penal Code; and (b) violation of Section
3 (e) of RA 3019, a special penal law. The offender incurs civil liability to the government as the
offended party for violation of Section 3 (e) of RA 3019, but not for falsification of public document
under paragraph 4, Article 171 of the Revised Penal Code.

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Merencillo vs. People, (G.R. Nos. 142369-70, April 13, 2007)

The violation of Section 3 (b) of RA 3019 is neither identical nor necessarily inclusive of direct
bribery. While they have common elements, not all the essential elements of one offense are
included among or form part of those enumerated in the other. The mere request or demand of a
gift, present, share, percentage or benefit is enough to constitute a violation of Section 3 (b) of RA
3019, acceptance of a promise or offer or receipt of a gift or present is required in direct bribery.

Although the two charges stemmed from the same transaction, the same act gave rise to two
separate and distinct offenses. No double jeopardy attached since there was a variance between
the element of the offense charged. The constitutional protection against double jeopardy
proceeds from a second prosecution for the same offense, not for a different one.

g. Section 4 (a) of Republic Act No. 3019

Prohibition on private individuals. (a) It shall be unlawful for any person having family or close
personal relation with any public official to capitalize or exploit or take advantage of such family or
close personal relation by directly or indirectly requesting or receiving any present, gift or material or
pecuniary advantage from any other person having some business, transaction, application, request
or contract with the government, in which such public official has to intervene. Family relation shall
include the spouse or relatives by consanguinity or affinity in the third civil degree. The word "close
personal relation" shall include close personal friendship, social and fraternal connections, and
professional employment all giving rise to intimacy which assures free access to such public officer.
(Republic Act No. 3019, Section 4(a))

International Harvester Macleod, Inc. v. CA, (90 SCRA 511 (1979])

The approach by respondent to President Garcia could not but be for any other purpose but to
influence him through personal connections to make an exception in petitioner's case. Clearly, an
agreement to this effect should be declared as against public policy. Any agreement entered into
because of the actual or supposed influence which the party has, engaging him to influence
administrative or executive officers in the discharge of their duties, which contemplates the use of
personal influence and personal solicitation rather than any appeal to the judgment of the officer on
the merits of the object sought, is contrary to public policy.

x x x

Consequently, it is our considered opinion that the agreement between respondent Lim and
petitioner is null and void, for being against public policy, and, therefore, unenforceable before a
Court of justice. It was to give statutory imprimatur to such public policy that Republic Act No. 3019,
the Anti Graft and Corrupt Practices Act, was enacted on August 17, 1960.

h. Section 4 (b) of Republic Act No. 3019

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(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any
of the offenses defined in Section 3 hereof. (Republic Act No. 3019, Section 4 (b))

Halili vs. CIR, (136 SCRA 112 (1985])

Atty. Benjamin Pineda could also be held liable under Section 4(b) of R.A. No. 3019 (Anti Graft and
Corrupt Practices Act) which makes it unlawful for any person knowingly to induce or cause any
public official to commit any of the offenses defined in Section 3 of said act. Section 3 enumerates
the corrupt practices which public officers may be prosecuted for. Atty. Pineda knowingly induces or
caused Labor Arbiter Valenzuela to issue the questioned orders without or beyond the latter's
authority and to which orders the former was not entitle, considering that he was not the sole and
proper representative.

i. Section 5 of Republic Act No. 3019

Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by
consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-
President of the Philippines, the President of the Senate, or the Speaker of the House of
Representatives, to intervene, directly or indirectly, in any business, transaction, contract or
application with the Government: Provided, That this section shall not apply to any person who, prior
to the assumption of office of any of the above officials to whom he is related, has been already
dealing with the Government along the same line of business, nor to any transaction, contract or
application already existing or pending at the time of such assumption of public office, nor to any
application filed by him the approval of which is not discretionary on the part of the official or
officials concerned but depends upon compliance with requisites provided by law, or rules or
regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the
exercise of a profession. (Republic Act No. 3019, Section 5)

Razon, inc. v. Philippine Ports Authority (151 SCRA 233 [1987])

By petitioners's own admission, at the time of the execution of the Management Contract, petitioner
E. Razon, Inc. x x x was controlled by Alfredo "Bejo" Romualdez, brother-in-law of deposed
President Marcos. Under Section 5 of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019)
Romualdez, by reason of his relationship with the then President of the Philippines, was prohibited
from intervening, directly or indirectly, in any transaction or business with the government. Thus the
Management Contact, entered into by E. Razon, Inc., ostensibly owned by petitioner Enrique Razon,
but in fact controlled by Alfredo Romualdez as 60% equity owner thereof, is null and void and of no
effect, being one expressly prohibited by law (par. [7], Art. 1409, Civil Code of the Philippines)

Romualdez vs. Sandiganbayan, (G.R. No. 152259, July 29, 2004)

The question "What is the violation?" is sufficiently answered by Section 5 of RA 3019, as follows:
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1. The offender is a spouse or any relative by consanguinity or affinity within the third civil degree
of the President of the Philippines, the Vice-President of the Philippines, the President of the
Senate, or the Speaker of the House of Representatives; and

2. The offender intervened directly or indirectly in any business, transaction, contract or


application with the government.

x x x

As to petitioner's claim that the term intervene is vague, this Court agrees with the Office of the
Solicitor General that the word can easily be understood through simple statutory construction. x x x

The term intervene should therefore be understood in its ordinary acceptation, which is to "to come
between." Criminally liable is anyone covered in the enumeration of Section 5 of RA 3019-any
person who intervenes in any manner in any business, transaction, contract or application with the
government. As we have explained, it is impossible for the law to provide in advance details of how
such acts of intervention could be performed. But the courts may pass upon those details once trial
is concluded.

j. Section 7 Filing of Statements of Assets and Liabilities and Net Worth (SALN)

Statement of assets and liabilities. Every public officer, within thirty days after the approval of this
Act or after assuming office, and within the month of January of every other year thereafter, as well
as upon the expiration of his term of office, or upon his resignation or separation from office, shall
prepare and file with the office of the corresponding Department Head, or in the case of a Head of
Department or chief of an independent office, with the Office of the President, or in the case of
members of the Congress and the officials and employees thereof, with the Office of the Secretary
of the corresponding House, a true detailed and sworn statement of assets and liabilities, including a
statement of the amounts and sources of his income, the amounts of his personal and family
expenses and the amount of income taxes paid for the next preceding calendar year: Provided, That
public officers assuming office less than two months before the end of the calendar year, may file
their statements in the following months of January. (Republic Act No. 3019, Section 7)

Ombudsman vs. Valeroso, (G.R. No. 167828, 2 April 2007, 520 SCRA 140)

Section 8 above, speaks of unlawful acquisition of wealth, the evil sought to be suppressed and
avoided, and Section 7, which mandates full disclosure of wealth in the SALN, is a means of
preventing said evil and is aimed particularly at curtailing and minimizing the opportunities for official
corruption and maintaining a standard of honestly in the public service. "Unexplained" matter
normally results from "nondisclosure" or concealment of vital facts. SALN, which all public officials
and employees are mandated to file, are the means to achieve the policy of accountability of all
public officers and employees in the government. By the SALN, the public are able to monitor
movement in the fortune of a public official; it is a valid check and balance mechanism to verify
undisclosed properties and wealth.

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Carabeo vs. Court of Appeals, et. al., (G.R. No. 178000 and 178003, December 4, 2009)

Carabeo claims that the complaint against him involves a violation of Section 10, RA 6713, or the
Code of Conduct and Ethical Standards for Public Officials and Employees, which entitles him to be
informed beforehand of his omission and to take the necessary corrective action.

x x x

While Section 10 of RA 6713 indeed allows for corrective measures, Carabeo is charged not only
with violation of RA 6713, but also with violation of Revised Penal Code, RA 1379, and RA 3019, as
amended, specifically Sections 7 and 8 thereof[.]

x x x

Significantly, Carabeo failed to show any requirement under RA 3019 that prior notice of the non-
completion of the SALN and its correction precede the filing of charges for violation of its provisions.
Neither are these measures needed for the charges of dishonestly and grave misconduct, which
Carabeo presently faces.

Pleyto vs. PNP-CIDG, (G.R. No. 169982, November 23, 2007)

For gross misconduct to exist, there must be reliable evidence showing that the acts complained of
were corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-
known legal rules.

x x x

Clear from the foregoing legal definitions of gross misconduct and dishonestly is that intention is an
important element in both. Petitioner's candid admission of his shortcomings in properly and
completely filing out his SALN, his endeavor to clarify the entries therein and provide all other
necessary information, and his submission of supporting documents as to the acquisition of the real
properties in his and his wife's names, negate any intention on his part to conceal his properties.
Furthermore, in view of this Court's findings that these properties were lawfully acquired, there is
simply no justification for petitioner to hide them. Missing the essential element of the intent to
commit a wrong, this Court does not declare petitioner guilty of gross misconduct and dishonestly.

Rabe vs. Flores, A.M. OCA IPI No. 97-1247, (272 SCA 415 (1997])

The Office of the Court Administrator also found that she had been receiving rental payments from
one Rodolfo Luay for the use of the market stall. That respondent had a stall in the market was
undoubtedly a business interest which should have been reported in her Sworn Statement of Assets
and Liabilities. Her failure to do so exposes her to administrative sanction.

x x x

In the present case, the failure of respondent to disclose her business interest which she herself
admitted is inexcusable and is a clear violation of Republic Act No. 6713.
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Note: Respondent was removed from office for not for non-disclosure of her business interest, she
was removed from office for dishonesty in receiving salaries both from the municipal government and
the court.

k. Section 8 of Republic Act No. 3019

Dismissal due to unexplained wealth. If in accordance with the provisions of Republic Act
Numbered One thousand three hundred seventy-nine, a public official has been found to have
acquired during his incumbency, whether in his name or in the name of other persons, an amount of
property and/or money manifestly out of proportion to his salary and to his other lawful income, that
fact shall be a ground for dismissal or removal. Properties in the name of the spouse and unmarried
children of such public official may be taken into consideration, when their acquisition through
legitimate means cannot be satisfactorily shown. Bank deposits shall be taken into consideration in
the enforcement of this section, notwithstanding any provision of law to the contrary. (Republic Act
No. 3019, Section 8)

PNB vs Gancayco, (15 SCRA 91 (1965])

The only conclusion possible is that Section 8 of the Anti-Graft Law is intended to amend Section 2
of Republic Act No. 1405 by providing additional exception to the rule against the disclosure of bank
deposits.

x x x

Cases of unexplained wealth are similar to cases of bribery or dereliction of duty and no reason is
seen why these two cases cannot be excepted from the rule making bank deposits confidential. The
policy as to one cannot be different from the policy as to the other. This policy express the motion
that a public office is a public trust and any person who enters upon its discharge does so with the
full knowledge that his life, so far as relevant to his duty, is open to public scrutiny.

Banco Filipino vs. Purisima, (161 SCRA 576 (1988])

The inquiry into illegally acquired property-or property NOT "legitimately acquired"- extends to cases
where such property is concealed by being held by or recorded in the name of other persons. This
proposition is made clear by R.A. No. 3019 which quite categorically states that the term,
"legitimately acquired property of a public officer or employee shall not include x x x property
unlawfully acquired by the respondent, but its ownership is concealed by its being recorded in the
name of, or held by, respondent's spouse, ascendants, descendants, relatives or any other
persons."

To sustain the petitioner's theory, and restrict the inquiry only to property held by or in the name of
the government official or employee, or his spouse and unmarried children is unwarranted in the light

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of the provisions of the statutes in question, and would make available to persons in government
who illegally acquire property an easy and fool-proof means of evading investigation and
prosecution; all they would have to do would be to simply place the property in the possession or
name of persons other than their spouse and unmarries children. This is an absurdity that we will not
ascribe to the lawmakers.

l. Section 12 Prohibition against resignation or retirement pending an investigation or


prosecution for violation of Republic Act No. 3019 or the Bribery provision of the
Revised Penal Code

Termination of office. No public officer shall be allowed to resign or retire pending an investigation,
criminal or administrative, or pending a prosecution against him, for any offense under this Act or
under the provisions of the Revised Penal Code on bribery. (Republic Act No. 3019, Section 12)

Estrada vs. Desierto, (G.R. Nos. 146710-15, March 2, 2001 and G.R. No. 146738, March 2, 2001)

Petitioner contends that the impeachment proceeding is an administrative investigation that, under
Section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it cannot be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.

m. Section 13 Preventive Suspension and loss of benefits

Suspension and loss of benefits. Any public officer against whom any criminal prosecution under a
valid information under this Act or under the provisions of the Revised Penal Code on bribery is
pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall
lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in
the meantime administrative proceedings have been filed against him. (Republic Act No. 3019,
Section 13)

Bolastig vs. Sandiganbayan, (235 SCRA 103 (1994])

The duration of preventive suspension is thus coeval with the period prescribed for deciding
administrative disciplinary cases. If the case is decided before ninety days, then the suspension will
last less than ninety days, but if the case is not decided within ninety days, then the preventive
suspension must be up to ninety days only. Similarly, as applied to criminal prosecutions under
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Republic Act No. 3019, preventive suspension will last for less than ninety days only if the case is
decided within that period; otherwise, it will continue for ninety days.

The duration of preventive suspension will, therefore, vary to the extent that it is contingent on the
time it takes the court to decide the case but not on account of any discretion lodged in the court,
taking into account the probability that the accused may use his office to hamper his prosecution.

Indeed, were the Sandiganbayan given the discretion to impose a shorter period of suspension, say,
80, 70, or 60 days, as petitioner asserts, it would lie in its power not to suspend the accused at all.
That, of course, would be contrary to the command of Sec. 13 of Republic Act No. 3019.

Barrea vs. People, (G.R. Nos. 145233-52, May 28, 2004)

En passant, if the administrative case files against petitioner has been terminated also in his favor,
he may invoke Section 13 of R.A. No. 3019 which provides:

SEC. 13. Suspension and loss of benefits. - Any incumbent public officer against whom any criminal
prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal
Code or for any offense involving fraud upon government or public funds or property whether as a
simple or as a complex offense and in whatever stage of execution ann mode of participation, is
pending in court shall be suspended from office. Should he be convicted by final judgment, he shall
lose all retirement or gratuity benefits under any law, but if is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive during suspension, unless
in the meantime administrative proceedings have ben files against him.

In the event that such convicted officer, who may have already been separated from the service ,
has already received such benefits he shall be liable to restitute te same to the government.
(Emphasis and underscoring supplied)

It has been long settle, however, and it bears reiteration that Section 13 of R.A. No. 3019, as
amended, unequivocally provides that the accused public official "shall be suspended from office"
while the criminal prosecution is pending in court. The rule on the matter is specific and categorical,
leaving no room for interpretation. There are no ifs and buts about it. The court has neither the
discretion nor duty to determine whether preventive suspension is required to prevent the accused
from using his office to intimidate witnesses or frustrate his prosecution or continue committing
malfeasance in office. Bolastig v. Sandiganbayan so teaches.

Dela Cruz, et al., vs. Sandiganbayan, et. al., (G.R. No. 161929, December 8, 2009)

The preventive suspension of the accused under Section 13 of RA No. 3019 is mandatory upon a
finding that the information is valid.

Section 13 of RA No. 3019 provides:

Section 13. Suspension and loss of benefits - Any public officer against whom any criminal
prosecution under a valid information under this act or under the provisions of the Revised Penal
Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final
judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he
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shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during
suspension, unless in the meantime administrative proceedings have been filed against him.

Pursuant to this provision, it becomes mandatory for the court to immediately issue the suspension
order upon a proper determination of the validity of the information. The court possesses no
discretion to determine whether a preventive suspension is necessary to forestall the possibly that
the accused may use his office to intimidate witnesses, or frustrate his prosecution, or continue
committing malfeasance. The presumption is that unless the accused is suspended, he may
frustrate his prosecution or commit further acts of malfeasance or do both.

7. Prohibited acts and transactions under the Code of Conduct and Ethical Standards
a. Definitions under the Code of Conduct and Ethical Standards (Republic Act No.
6713):
3. Public officials includes:
a. Elective and appointive officials and employees including those in
government-owned or controlled corporations and their subsidiaries;
b. Permanent or temporary;
c. Career or non-career service;
d. Including military and police personnel
e. Whether or not receiving compensation

4. Gift refers to a thing or a right disposed of gratuitously or any act of liberality in


favor of another who accepts it and shall include a simulated sale or an
ostensibly onerous disposition thereof. It shall not include unsolicited gift of
nominal or insignificant value not given in anticipation of, or exchange for, a
favor from a public official or employee. (Mabini v. Raga, 491 SCRA 525 (2006))

5. Receiving any gift includes the act of accepting, directly or indirectly, a gift
from a person other than a member of his family or relative as defined in the Act,
even on the occasion of a family celebration or national festivity like Christmas,
of the value of the gift is neither normal nor insignificant, or the gift is given in
anticipation of, or in exchange for, a favor.

6. Loan covers both simple loan and commodatum as well as guarantees,


financing arrangements or accommodations intended to ensure approval.

b. Under Republic Act No. 6713, the following constitute prohibited acts and
transactions and are declared unlawful:
3. Financial and material interest
a. Public officials and employees shall not, directly or indirectly, have any
financial or material interest in any transaction requiring the approval of their
office.

4. Outside employment and other activities related thereto


a. Public officials and employees during their incumbency and for 1 year after
resignation, retirement, or separation from public office shall not:

1. Own, control, manager or accept as employment as officer, employee,


consultant, counsel, broker, agent, trustee or nominee in any private
agency regulated, supervised or licensed by their office, unless
expressly allowed by law;
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2. Engage in the private practice of their profession, unless authorized by
the Constitution or law, and provided that such practice will not conflict
or tend to conflict with their official functions.
a. The professional concerned can engage in his profession
immediately after his resignation, retirement or separation from
office. However, he cannot practice his profession in connection
with any matter before the office he used to be with for a period of 1
year after said retirement, resignation, or separation from office.

3. Recommend any person to any position in a private enterprise which


has a regular or pending official transaction with their office.

5. Disclosure and / or misuse of confidential information


a. 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 to:
1. Further their private interest; or
2. Give undue advantage to anyone; or
3. Prejudice the public interest.

6. Solicitation or acceptance of gifts


a. Public officers and employees shall not, directly or indirectly, solicit or
accept any gift, gratuity, favor, entertainment, loan or anything of monetary
value from any person:
1. In the course of their official duties; or
2. In connection with any operation being regulated by their office; or
3. In connection with any transaction which may be affected by the
functions of their office.

b. Congress must consent to the following gifts or grants from foreign


governments:
1. The acceptance and retention by a public official or employee of a gift of
nominal value tendered, and received as a souvenir or mark of courtesy;

2. The acceptance by a public official or employee of a gift in the nature of


a scholarship or fellowship grant or medical treatment; or

3. The acceptance by a public official or employee of travel grants or


expenses for travel taking place entirely outside the Philippines of more
than nominal value, if such acceptance is consistent with the interests of
the Philippines and permitted by the head of office, branch or agency to
which he belongs.

8. Divestment
a. It refers to the transfer of title or disposal of interest in property by voluntarily,
completely, and actually depriving or dispossessing oneself of his right or title to it in
favor of a person or persons other than his spouse and relative. The term relative
refers to any and all persons related to a public official or employee within the 4th
civil degree of consanguinity or affinity, including bilas, inso, and balae.

b. Whenever a conflict of interest arises, a public official or employee shall resign from
his position in any private business enterprise within 30 days from his assumption of
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office and / or divest himself of his shareholdings or interest within 60 days from
such assumption. Divestment shall be mandatory if the conditions for conflict of
interest still concur even if he has resigned from his position in any private business
enterprise.

c. Divestment does not apply to:


3. Those who serve the government in an honorary capacity
4. Laborers and casual temporary workers

Domingo vs. Ombudsman, et. al., (G.R. No. 176127, January 30, 2009)

The charge of violation of Section 4(b) of RA No. 6713 deserves further comment. The provision
commands that "public officials and employees shall perform and discharge their duties with the
highest degree of excellence, professionalism, intelligence and skill." Said provision merely
enunciates "professionalism as an ideal norm of conduct to be observed by public servants, in
addition to commitment to public interest, justness and sincerity, political neutrality, responsiveness
to the public, nationalism and patriotism, commitment to democracy and simple living. Following
this perspective, Rule V of the implementing Rules of R.A. No. 6713 adopted by the Civil Service
Commission mandates the grant of incentives and rewards to officials and employees who
demonstrate exemplary service and conduct based on their observance of the norms of conduct laid
down in Section 4. In other words, under the mandated incentives and rewards system, officials and
employees comply with the high standard set by law would be rewarded. Those who fail to do so
cannot expect the same favorable treatment. However, the Implementing Rules does not provide
that they will have to be sanctioned for failure to observe these norms of conduct. Indeed, Rule X of
the Implementing Rules affirms as grounds for administrative disciplinary action only acts "declared
unlawful or prohibited by the Code." Rule X specifically mentions at least twenty=three (23) acts or
omissions as grounds for administrative disciplinary action. Failure to abide by the norms of
conduct under Section 4(b) or R.A. No. 6713 is not one of them.

Furthermore, there is obviously a denial of due process in this case. The due process requirement
mandates that every accused or respondent be apprised of the nature and cause of the charge
against him, and the evidence in support thereof be shown or made available to him so that he can
meet the charge with traversing or exculpatory evidence. A cursory reading of the complaint-
affidavit does not reveal that petitioner was charged with violation of Section 4(b) of R.A. No. 6713.
Likewise, in the OMB's Evaluation Report, the charges indicated were for malversation, falsification,
dishonesty, and grave misconduct.

Carabeo vs. Court of Appeals, et. al, (G.R. No. 178003, December 4, 2009)

Carabeo claims that the complaint against him involves violation of Section 10, RA 6713, or the
Code of Conduct and Ethical Standards for Public Officials and Employees, which entitles him to be
informed beforehand of his omission and to take the necessary corrective action.

Section 10 of RA 6713 provides:

Section 10. Review of Compliance Procedure. - (a) The designated Committee of both Houses of
Congress shall establish procedures for the review of statements to determine whether said
statements which have been submitted on time, are complete, and are in proper form. In the event a
determination is made that a statement is not filed, the appropriate Committee shall so inform the

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reporting individual and direct him to take the necessary corrective action.
x x x

While Section 10 of RA 6713 indeed allows for corrective measures, Caraveo is charged not only
with violation of RA 6713, but also with violation of the Revised Penal Code, R.A. 1379, and RA
3019, as amended, specifically Section 7 and 8 thereof, which read:

Sec. 7. Statement of Assets and Liabilities. - Every public officer, within thirty days after assuming
office, and thereafter, on or before the fifteenth day of April following the close of every calendar
year, as well as upon the expiration of his term of office, or upon his resignation or separation from
office, shall prepare and file with the office of corresponding Department Head, or in the case of a
Head Department or chief of an independent office, with the Office of the President, a true, detailed
and sworn statement of the amounts and sources of his income, the amounts of his personal and
family expenses and the amount of income taxes paid for the nest preceding calendar year:
Provided, That public officers assuming office less than two months before the end of the calendar
year, may file their first statement on or before the fifteenth day of April following the close of said
calendar year.

Sec. 8. Prima Facie Evidence of and Dismissal Due to Unexplained Wealth. - If in accordance with
the provisions of Republic Act Numbered One Thousand Three Hundred Seventy-Nine, a public
official has been found to have acquired during his incumbency, whether in his name or in the name
of other persons, an amount of property and/or money manifestly out of proportion to his salary and
to his other lawful income, that fact shall be ground for dismissal or removal. Properties in the name
of the souse and dependents of such public official may be taken into consideration, when their
acquisition through legitimate means cannot be satisfactorily shown. Bank deposits in the name of
or manifestly excessive expenditures incurred by the public official, his spouse or any of their
dependents including but not limited to activities in any club or association or any ostentatious
display of wealth including frequent travel abroad on a non-official character by any public official
when such activities entail expenses evidently out of proportion to legitimate income, shall likewise
be taken into consideration in the enforcement of this Section, notwithstanding any provision of law
to the contrary. The circumstances hereinabove mentioned shall constitute valid ground for the
administrative suspension of the public official concerned for an indefinite period until the
investigation of the unexplained wealth is completed.

In Ombudsman v. Valeroso, the Court explained fully the significance of these provisions, to wit:

Section 8 above, speaks of unlawful acquisition of wealth, the evil sought to be suppressed and
avoided, and Section 7, which mandates full disclosure of wealth in the SALN, is a means of
preventing said evil and is aimed particularly at curtailing and minimizing, the opportunity for official
corruption and maintaining a standard of honesty in the public service. "Unexplained" matter
normally results from "non-disclosure" or concealment of vital facts. SALN, which all public officials
and employees are mandated to file, are the means to achieve the policy of accountability of all
public officers and employees in the government. By the SALN, the public are able to monitor
movement in the fortune of a public official; it is a valid check and balance mechanism to verify
undisclosed properties and wealth.

Pleyto vs. PNP-CIDG (G.R. No. 169982, November 23, 2007)

Petitioner is charged with gross misconduct and dishonesty for failing to comply with Section 7 of
the Anti-Graft and Corrupt Practices, and Section 8 of the Code of Conduct and Ethical Standards

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for Public Officials and Employees, requiring the submission of a statement of assets and liabilities
by a public officer or employee.

As for gross misconduct, the adjective is "gross" or serious, important, weighty, momentous and not
trifling; while the noun is "misconduct," defined as a transgression of some established and definite
rule of action, more particularly, unlawful behavior or gross negligence by the public officer. The
word "misconduct" implies a wrongful intention and not a mere error of judgment. For gross
misconduct to exist, there must be reliable evidence showing that the acts complained of were
corrupt or inspired by an intention to violate the law, or were in persistent disregard of well-known
legal rules.

And as for dishonesty, it is committed by intentionally making a false statement in any material fact,
or practicing or attempting to practice any deception or fraud in securing his examination,
registration, appointment or promotion. Dishonesty is understood to imply a disposition to lie,
cheat, deceive, or defraud; untrustworthiness; lack of integrity.

Clear from the foregoing legal definitions of gross misconduct and dishonesty is that intention is an
important element in both. Petitioner's candid admission of his shortcomings in properly and
completely filling out his SALN, his endeavor to clarify the entries therein and provide all other
necessary information, and his submission of supporting documents as to the acquisition of the real
properties in his and his wife's names, negate any intention on his part to conceal his properties.
Furthermore, in view of the Court's findings that these properties were lawfully acquired; there is
simply no justification for petitioner to hide them. Missing the essential element of intent to commit
a wrong, the Court cannot declare petitioner guilty of gross misconduct and dishonesty.

Neither can petitioner's failure to answer the question, "Do you have any business interest and other
financial connections including those of your spouse and unmarried children living in your house
hold?" be tantamount to gross misconduct or dishonesty. On the front page of petitioner's 2002
SALN, it is already clearly stated that his wife is a businesswoman, and it can be logically deducted
that she had business interests. Such a statement of his wife's occupation would be inconsistent
with the intention to conceal his and his wife's business interests. That petitioner and/or his wife
had business interests is thus readily apparent on the face of the SALN; it is just that the missing
particulars may be subject of an inquiry or investigation.

An act done in good faith, which constitutes only an error of judgment and for no ulterior motives
and/or purposes, does not qualify as gross misconduct, and is merely simple negligence. Thus, at
most, petitioner is guilty of negligence for having failed to ascertain that his SALN was accomplished
properly, accurately, and in more detail.

Rabe vs. Flores, (A.M. OCA IPI No. 97-1247, 272 SCRA 415 (1997])

Section 8 of Republic Act No. 6713 provides that it is the "obligation" of an employee to submit a
sworn statement, as the "public has a right to know" the employee's assets, liabilities, net worth and
financial and business interests. Section 11 of the same law prescribes the criminal and
administrative penalty for violation of any provision thereof. Paragraph (b) of Section 11 provides
that "(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause
for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted
against him."

In the present case, the failure of respondent to disclose her business interest which she herself

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admitted and is inexcusable and is a clear violation of Republic Act No. 6713.

In her explanation, respondent maintains the position that she has no business interest, implicitly
contending that there is nothing to divulge or divest from. As discussed above, respondent had a
business interest. We do not find her administratively liable, however, for failure to divest herself of
the said interest. The requirement for public officers, in general, to divest themselves of business
interests upon assumption of a public office is prompted by the need to avoid conflict of interests.
In the absence of any showing that a business interest will result in a conflict of interest, divestment
of the same is unnecessary. In the present case, it seems a bit far-fetched to imagine that there is a
conflict of interest because an Interpreter III of the Regional Trial Court has a stall in the market. A
court, generally, is not engaged in the regulation of a public market, nor does it concern itself with
the activities thereof. While respondent may not be compelled to divest herself of her business
interest, she had the legal obligation of divulging it.

Part 7. Liabilities of Public Officers


A. In general
1. Doctrine of official immunity from liabilities for public officers
a. Public officers and employees would be unduly hampered, deterred, and intimidated
in the discharge of their duties if those who act improperly, or even exceeded the
authority given them, were not protected to some reasonable degree by being
relieved from private liability.

b. Rationale: Promotion of fearless, vigorous, and effective administration of policies of


government. Threat of suit could also deter competent people from accepting
public office.

2. Official immunity and State immunity distinguished

Official Immunity State Immunity


It is more limited in principle that State immunity Its purpose is to protect the sovereign directly
since its purpose is to protect the sovereign
collaterally
It serves as a protective aegis for public officials The doctrine principally rested on the tenuous
from tort liability for damages arising from ground that king could do no wrong. It serves to
discretionary acts or functions in the protect the government from tort liability.
performance of their official duties
In the performance of governmental function, the State is not bound by the mistake, neglect, or
wrongdoing of its agents and officers.

3. Official immunity not absolute


a. Suit may be brought against a public officer in the following circumstances:
1. Suit to enforce liability for personal tort
a. Mere invocation of official character will not suffice to insulate officer from
suability and liability for personal torts committed without or in excess of
authority. (Sanders v. Veridiano II, 162 SCRA 99 (1988))

b. Acts of a public officer are protected by the presumption of good faith. The
protection afforded by the doctrine generally applies only to activities within
the scope of office that are in good faith and are not reckless, malicious, or
corrupt. Even mistakes are not actionable as long as it is not shown that

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they were motivated by malice or gross negligence amounting to bad faith.
(Philippine Racing Club, Inc. v. Bonifacio, 109 Phil 233 (1960); Lumayana v.
Commission on Audit, 601 SCRA 163 (2009))

c. A public officer may secure the services of private counsel in an action filed
against him in his official capacity if the damages sought in the action, if
granted, could result in his personal liability. (Mancenido v. Court of
Appeals, 330 SCRA 419 (2000))

2. Suit to compel performance of official duty or restrain performance of an act


a. As a general rule, the State may not be sued without its consent, and a suit
against a public officer for his official acts is, in effect, a suit against the
State. However, there are still instances when a public officer may be sued
(with the State consenting) even in the performance of his official duties.

b. Examples are:

1. Where a register of deed refuses to register a deed of sale, the Court


held that the public officer may be sued as such to compel him to do an
act required by law;

2. A suit may be brought to restrain a cabinet member from enforcing an


unconstitutional law;

3. A suit to compel the national treasurer to pay damages from an already


appropriated assurance fund;

4. A suit to require the Commissioner of Internal Revenue to refund tax


overpayments from a fund already available for the purpose;

5. A suit to compel judgment that the officer impleaded may satisfy himself
without the government itself having to do a positive act against him;

6. An aggrieved party may directly implead the government without first


filing claim with the Commission on Audit as normally required, because
the doctrine of State immunity cannot be used as an instrument for
perpetrating an injustice.

4. Liability based upon and co-extensive with duty


a. The liability of a public officer to an individual or the public is based upon and is co-
extensive with his duty to the individual or the public.

b. If the officer does not owe any duty to the individual complaining (i.e., the officers
duty is solely to the public), then the individual has no right of action against the
public officer even though the individual may have been injured. The breach is to be
redressed by public prosecution.

5. Three-fold responsibility of public officers


a. For violation of duty or for wrongful act or omission, the public officer is under a 3-
fold liability:
1. Civil
a. If the individual is damaged by the violation, the official shall, in some cases,
be held civilly liable to reimburse the injured party.
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2. Criminal
a. If the law attaches a penal sanction, the officer may be punished criminally.

3. Administrative
a. If the administrations disciplinary power is strong, violation may lead to fine,
reprimand, suspension, or removal from office.
b. The issue in administrative cases is not whether the complainant has a
cause of action against the respondent public officer or employee but
whether the latter has breached the norms and standards of public service.

c. An action for each can proceed independently of the others.

6. Criminal and civil cases different from administrative matters

Administrative Liability Penal and Civil Liabilities


Purpose is mainly to protect the public services Purpose of criminal prosecution is the
based on the principle that a public office is a punishment of crime.
public trust.
Presumptions: Public officers are presumed to Presumption: Accused is presumed innocent
have performed their duties regularly and acted
within the bounds of their authority, unless the
contrary is shown.
No double jeopardy (Prosecution in one is not a bar to the other)
No prejudicial question where one case is administrative and the other is civil or criminal (Prejudicial
question involves a civil and a criminal case)
Disposition of the criminal or civil case does not necessarily govern the disposition of the
administrative case and vice-versa.

7. Proceedings against public officers


a. Evidence and procedure
1. A formal charge issued prior to the imposition of administrative sanctions must
conform to the requirements set forth in Section 16, Rule II of the Uniform Rules
on Administrative Cases in the Civil Service (URACCS), otherwise, the employee
is not formally charged. The formal charge shall contain a specification of
charge(s), a brief statement of material or relevant facts, accompanied by
certified true copies of the documentary evidence, if any, sworn statements
covering the testimony of witnesses, a directive to answer the charge(s) in
writing under oath in not less than seventy-two (72) hours from receipt thereof,
an advice for the respondent to indicate in his answer whether or not he elects a
formal investigation of the charge(s), and a notice that he is entitled to be
assisted by a counsel of his choice. Without a formal charge and proper
investigation on the charges imputed on the employee, there is a failure of due
process (Salva v. Valle, G.R. No. 193773, 2 April 2013).

2. In administrative proceedings, substantial evidence is required (i.e., such


relevant evidence as a reasonable mind might accept as adequate to support a
conclusion). In the absence of evidence to the contrary, public officers and
employees are presumed to have performed their duties regularly and acted
within the bounds of their authority in good faith.

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3. In administrative proceedings, technical rules of procedure and evidence are not
strictly applied and due process is deemed satisfied when the parties are
afforded fair and reasonable opportunity to explain their side even without a
trial-type hearing.

b. Right to be informed of findings and recommendations of an investigating


committee
1. In an administrative case, the respondent is not entitled to be informed of the
findings and recommendations of any investigating committee created as he is
only entitled to the administrative decision based on substantial evidence made
of records, and a reasonable opportunity to meet the charges and evidence
presented against him.

c. Object of administrative proceedings


1. The object of administrative proceedings is not the punishment of the officer of
employee but the improvement of the public service and the preservation of the
public faith and confidence in the government.

d. Right to counsel
1. The assistance of counsel is not indispensable in administrative proceedings.
e. Effect of death
1. The death of the respondent in an administrative case does not preclude a
finding of administrative liability.

2. Exceptions (the death of the respondent necessitates the dismissal of the


administrative case upon a consideration of any of the following factors):
a. Observance of respondents right to due process
b. Presence of exceptional circumstances in the case on the grounds of
equitable and humanitarian reasons.

8. Administrative liability incurred in a previous term by an elective official


a. Reelection operates as electorate condonation of a previous misconduct
1. Once reelected, an elective official is no longer amenable to administrative
sanctions for infractions allegedly committed during the preceding term.

2. The condonation rule is applied regardless of the date of filing of the


administrative complaint as long as the wrongdoing is committed prior to the
date of reelection.

b. Condonation does not extend to reappointed coterminous employees


1. The condonation rule is inapplicable to appointive officials, such as reappointed
coterminous employees, as there is no subversion of the sovereign will nor the
disenfranchisement of the electorate in the case of appointive officials.

c. Reelection does not extinguish criminal or civil liability


1. The reelection of a public official extinguishes only the administrative but not the
criminal or civil liability incurred by him during his previous term of office.

B. Civil liability
1. Requisites for recovery of damages arising from acts of public officers
a. In order to create the right of action for recovery of damages arising from acts of
public officers, 2 things must concur:

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1. Damage to himself (the individual suffered some special and peculiar injury from
the wrongful act complained of); and
2. Wrong or violation of the right of a party committed by the other.

b. Liability is only in their official capacity. No judgment can be rendered to make them
personally liable, unless there is an allegation in the complaint that such officials
have maliciously and in bad faith acted outside the scope of their official authority or
jurisdiction.

c. Public officer shall not be liable for moral and exemplary damages for acts done in
the performance of official duties, unless there is a clear showing of bad faith,
malice, or gross negligence.

d. While the loans cannot bind the municipality for being ultra vires, the officers who
authorized the passage of the resolutions are personally liable (Land Bank of the
Philippines v. Cacayuran, G.R. No. 191667, 17 April 2013).

Philippine Racing Club, Inc. v. Bonifacio (109 Phil. 233 [1960])

A faulty start marred a horse race in Sta. Ana. The judges, however, refused to cancel the same,
which the Commission on Races reversed after investigation. In the interim, the holders of the
winning tickets were able to encash their winnings. The result was that the Club not only had to pay
the winners but had to return to the holders of the losing tickets their money.

The Commission only has the power of supervision, meaning the power to oversee and see to it that
the subordinate officers perform their duties, and not control, which is the power to alter, modify, or
nullify a subordinates judgment / act. However, since the Commission acted in its official capacity
in the honest belief that they had such a power as in fact they only acted after investigation, they
cannot be held liable for damages.

The Definition of acts done in official capacity need not be prescribed by law, it being sufficient
that they are done by an officer in relation to matters committed by law to his control or supervision,
or has more or less a connection to the department under whose authority the officer is acting.

A quasi-judicial authority generally has no liability for erroneous or mistaken decisions, provided that
said decision / act is within the scope of his authority, and without willfulness or corruption.

Dumlao v. Court of Appeals (114 SCRA 247 [1982])

A hole at the end of a bridge caused the death of Ps parents. Dumlao, the City Engineer of Davao,
was charged with negligence in not repairing the road where the accident occurred, and in not
sufficiently warning the public of the hazards of the road.

Dumlao is not personally liable for damages. Damages are recoverable only from the City of Davao
per Article 2189 of the Civil Code, which does not include the city officials for purposes of liability for
damages to persons caused by defective public works.

A public official is only personally liable for whatever damage he caused by his act done with malice
or bad faith or beyond the scope of his authority. Dumlao was sued in his official capacity, with no

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imputation of malice or bad faith. Here, the road repair is owed to the public in general, not to Ps
parents personally.

Rama v. Court of Appeals (148 SCRA 496 [1987])

The Provincial Board abolished 30 positions ostensibly as an austerity measure, and 200 employees
lost their jobs as a result. After some time, however, the board created new positions and hired
1,000 new employees. The employees sued the board, including the governor.

A public officer who commits a tort or a wrongful act beyond the scope of his duty is not protected
by his office and is personally liable therefor. There was bad faith as the purported reason for
sacking the 200 employees is belied by the fact that 1,000 new employees were later hired, contrary
to the so-called austerity measures of the Board. It must be noted that the Board was sued in their
personal capacity.

2. Effect of contributory negligence of injured party


a. Public officers cannot be held responsible if:
1. The result complained of would have followed notwithstanding the officers
misconduct (i.e., the position of the injured party would have been the same had
not the alleged misconduct occurred); or

2. The injured party contributed to the result in any degree by his own fault or
neglect.

3. Liability of the President for official acts


a. Civil responsibility
1. The civil responsibility of the President would produce in him an inevitable
tendency to protect himself by following lines of least resistance and to temper
the force of his executive arm in places and occasions where there is strong
opposition.

b. Criminal liability
1. The President is the first man of the State. An assault upon him is an assault
upon the people. An offense against him is an offense against the State.

c. Liability for damages


1. To put the President on trial is to put on trial the government itself.

Moon v. Harrison (43 Phil. 27 [1922])

A complaint was filed after the Governor-General allegedly seized and confiscated 2,330 kilos of
Siam rice worth P26.32 per cavan for distribution to the public, and which the Governor-General and
other defendants promised to pay only P16.25 a cavan. The complaint further alleges that the acts
were committed under Act No. 2868 of the Philippine Legislature, and pursuant to Executive Orders
No. 56 and 57 issued by the authority of the said Act.

At the time of the alleged acts, the Governor-General was acting in his official capacity when he
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exercised discretionary power which was vested in him. No court has ever held and no final
decision will ever be found holding an Executive personally liable in damages for the exercise of
discretionary power under a law before it has been held unconstitutional. There is a legal
presumption that any law enacted by legislature is valid, and so the Governor-General had a legal
right to assume that Act No. 2868 was valid. It was neither his official province nor duty to say
whether the Act was or was not constitutional. To hold an executive personally liable in an action for
damages for the performance or nonperformance of official duty, in legal effect, would make him a
judge as to when a law is or is not constitutional.

4. Liability of other executive officials for official acts


a. Functions involve exercise of discretion
1. General rule:
a. Government officials performing discretionary functions are shielded from
liability from civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights. If the law at the time of the act
was not clearly established, an official cannot be reasonably expected to
anticipate subsequent legal developments, nor could he be said to know
that the law forbade conduct not previously identified as unlawful.

2. Exception:
a. If the law was clearly established, the immunity defense would ordinarily fail.

b. Reasons for immunity


1. The imposition of monetary costs for mistakes which were not unreasonable in
the light of all the circumstances would undoubtedly deter the most
conscientious decision-maker from exercising his judgment independently,
forcefully, and in a manner best serving the long-term interest of the public.

2. Higher officials of the executive branch have a broad range of duties and
authority, and must often act swiftly and firmly at the risk that an action
deferred will be futile or constitute virtual abdication of office.

c. Acts of heads of executive departments


1. All heads of executive departments are mere agents of the President. Except in
cases where the President is required to act personally by the Constitution or
law, functions of his office are performed by and through the executive
departments and the acts of secretaries performed and rendered in the regular
course of business are, presumptively, acts of the President, unless
disapproved by him.

5. Liability of legislative officials for official acts


a. Privileges accorded members of Congress

A Senator or Member of the House of Representatives shall, in all offenses punishable by not more
than 6 years imprisonment, be privileged from arrest while the Congress is in session. No Member
shall be questioned nor be held liable in any other place for any speech or debate in the Congress or
in any committee thereof. (Constitution, Article VI, Section 11)

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b. Members of Congress are not only exempt from general liability but they are also
accorded special privileges as follows:
a. Privilege from arrest while Congress is in session for offenses punishable by
not more than 6 years imprisonment

b. Exempt from liability for any speech or debate in Congress, or in any


committee thereof.

c. These privileges are designed not to protect members from prosecution but to
enable the representatives to execute the functions of their office without fear of
prosecution, and to ensure freedom from executive or judicial encroachment.

d. The immunity extends to all grades of legislative action (i.e., Congress and local
legislative bodies).

e. Reasons for immunity


1. Members of legislative bodies are chosen by their constituents to exercise their
judgment and discretion in the enactment of such laws as are best suited to the
welfare and prosperity of the people. The performance of duty is owing to the
public and not to individuals.

2. They would not perform their duties timidly if every dissatisfied person would be
allowed to compel them to vindicate the wisdom of their enactments in an
action for damages.

6. Liability of members of the judiciary for official acts


a. General rule: A judge is not liable for acts done in the exercise of judicial function.
1. No civil action (or administrative sanction) can be sustained against a judicial
officer for the recovery of damages by one claiming to have been injured by the
officers judicial action within his jurisdiction.

2. The officer is required by law to exercise his judgment, and the law holds his
duty to the individual to be performed when he has exercised it, however
erroneous or disastrous it may seem.

b. Exception: the immunity does not apply to acts that are purely ministerial in nature.

c. Reasons for immunity


1. If a judicial officer is held to be civilly liable for damages arising from the
exercise of his judgment:
a. It would defeat, to some extent, the purpose for which his office was
created, because the defense of his own interests would occupy the judges
time and his mind, instead of his public duties.

b. The estimation in which his office is held will be lowered, and any
adjudication against a judge lessens the weight of his subsequent decisions.

c. It would be an incentive to dishonest judgments and would cause him to


consult public opinion and public prejudices when he ought to be wholly
uninfluenced by them.

d. It would constitute a serious obstruction to justice by necessitating a large


increase in the judicial force because:
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1. It would multiply litigation
2. It opens each case to endless controversy

e. A prosecution at the instance of the State is a much more effective method


of bringing him to account than a private suit.

f. Judicial offices would never be accepted by any man of standing,


reputation, or financial worth, if at the peril of his fortune, he must justify his
judgments to the satisfaction of another judge.

2. Insofar as a judge acts within his judicial authority, his immunity from civil liability
is held not affected by bad faith, malice, or corrupt motives. If the judge is, in
fact, corrupt, the public has its remedy, but the defeated suitor cannot be
permitted to obtain redress against the judge by alleging that the judgment
against him was the result of corrupt or malicious motives.

d. Liability for rendering an unjust judgment


1. General rule: As a matter of public policy, in the absence of fraud, dishonesty,
or corruption, the acts of a judge in his judicial capacity are not subject to
disciplinary action, even though such acts are erroneous.

2. Exceptions:
a. A judge may be held criminally liable for dereliction of duty for:
1. Knowingly rendering an unjust judgment or interlocutory order. A
judgment is unjust if it is contrary to law or is not supported by the
evidence and the same was made with conscious and deliberate intent
to do an injustice.

2. Rendering a manifestly unjust judgment or interlocutory order by reason


of inexcusable negligence or ignorance. It must be shown that although
he acted without malice, he still failed to observe that diligence,
prudence and care in the performance of his duty, which the law
requires.

e. Liability for gross ignorance of law and incompetence


1. A judge may be meted with the penalty of suspension where there is:
a. Gross misjudgment
b. Gross ignorance of the law

2. A judge is expected to exhibit more than a cursory acquaintance with statutes


and procedural rules.

3. To warrant a finding of gross ignorance of the law, the assailed order or


decision must not only be contrary to existing law and jurisprudence, the error
must be so gross and patent as to produce an inference of ignorance or bad
faith or that the judge knowingly rendered an unjust decision. (Regis v.
Paderanga, 548 SCRA 244 (2008))

f. Quantum of proof necessary to support administrative charges


1. The quantum of proof necessary to support the administrative charges or to
establish grounds for the removal of a judicial officer should be more than
substantial.

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7. Liability of quasi-judicial officers for official acts
a. Nature of functions
1. Quasi-judicial officers are officials in the executive branch or members of bodies
who do not belong strictly to any of the traditional branches of government and
are vested with discretion and empowered to exercise their judgment in matters
brought before them.

b. Reasons for immunity


1. General rule: a quasi-judicial officer cannot be called upon to respond in
damages to the private individual for the honest exercise of his judgment within
his jurisdiction, however erroneous or misguided his judgment may be. (Macias
v. Macias, 601 SCRA 203 (2009))

2. Exception: When acting in a ministerial capacity, a quasi-judicial officer is liable


for carelessness or negligence like any other ministerial officer.

c. Liability for ministerial acts


1. When a quasi-judicial officer acts ministerially, he is liable for carelessness or
negligence like any other ministerial officer.

Mercado v. Medina (22 SCRA 577 [1968])

Bus operators filed an application for increase in passenger fares. Pending resolution, the Public
Service Commission (PSC) issued a resolution provisionally hiking transport rate. Due to complaints
by commuters, an amendatory resolution was issued reducing the provisional fare, with the proviso
that the zonal arrangement shall be applied. Due to a misunderstanding, claims of overcharging
were leveled against some bus operators. The commissioner created an investigatory committee.
In the meantime, oppositors in the case docketed as 66-11-0C for increase of transport fare filed a
petition for certiorari with the Supreme Court. The PSC postponed hearing the case until final
resolution of the petition with the Supreme Court. Complainant in the overcharging case filed an
administrative action against the PSC commissioner for suspending proceedings in said case.

The Commissioner of the PSC is not guilty of nonfeasance or dereliction of duty for postponing the
hearing of the overcharging case. The offense of nonfeasance or dereliction of duty implies a willful
or fraudulent omission or neglect of official duty, and not mere failure to do one particular thing.
After filing of the complaint, respondent issued a show-cause order, conducted the first formal
hearing, and created a committee to implement a new system aimed at resolving the complaint.
However, the PSC Commissioner committed an error of judgment in not proceeding with the hearing
of the overcharging case, despite the pendency of the petition for certiorari.

8. Liability of ministerial officers for official acts


a. General rule: Where the law imposes upon a public officer the performance of
ministerial duties in which a private individual has a special and direct interest, the
officer will be liable to such individual for any injury for failure or neglect of the officer
to perform the duty at all, or to perform it properly.

1. Purely ministerial act or duty refers to one which an officer or tribunal performs
in a given state of facts, in a prescribed manner, in obedience to the mandate of
the legal authority, without regard to the exercise of his own judgment upon the

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propriety or impropriety of the act done. If the law imposes a duty upon a public
officer and gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial.

b. Requisites for liability


1. The private complainant must show that the following concur:
a. That he has sustained a special and peculiar injury and
b. That it results from a breach of duty, which the officer owed to him.

c. Liability where officer also acts extra-judicially


a. The rules controlling ministerial action shall govern acts of judicial officers
who are called upon to perform ministerial acts.

9. Kinds of liability of ministerial officers


a. Nonfeasance: the neglect or refusal, without sufficient cause, to perform an act
which it was the officers legal duty to the individual to perform.

b. Misfeasance: the failure to use, in the performance of a duty owing to an individual,


that degree of care, skill and diligence, which the circumstances of the case
reasonably demand.

c. Malfeasance: the doing, either through ignorance, inattention or malice, of that


which the officer has no legal right to do at all, as where he acts without authority
whatever, or exceeds, ignores, or abuses his powers.

d. General rule: Good faith and absence of malice constitute no defense in an action to
hold a ministerial officer liable for damages caused by his nonfeasance or
misfeasance.

10. Liability of superior officer for acts of subordinates


a. General rule: Public officers, in the performance of their functions, are not civilly
liable to 3rd persons, either for the misfeasance or positive wrongs, or for the
nonfeasance, negligence, or omissions of duty of their subordinates. Negligence of
subordinates cannot always be ascribed to their superior in the absence of the
latters own negligence.

b. Exceptions
1. He is charged with the duty of employing / retaining his subordinates, and he
negligently or willfully employs / retains unfit or improper persons.

2. He is charged with the duty to see that they are appointed or qualified in a
proper name, and he negligently or willfully fails to require them to comply with
the prescribed regulations.

3. He carelessly or negligently oversees or conducts the business of his office as


to furnish the opportunity for default.

4. A fortiori, where he directed, authorized, or cooperated in the wrong.

5. Where liability is expressly provided in the statute.

c. Other exceptions

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1. A superior is also liable for the misconduct or negligence within the scope of the
employment of those employed by or under him voluntarily or privately, and paid
by or responsible to him.

11. Liability of subordinates


a. Same rules as those applicable to officers of higher rank
1. Rules applicable to officers of higher rank for official misconduct are the same
as those governing subordinate officers.

b. Where acts done pursuant to orders or instructions of a superior


1. General rule: A subordinate official who acts in good faith under orders or
instructions of a superior officer acting in pursuance to law, is not personally
liable in an action for damages.

2. Exception: An order of a superior is no justification for an unlawful act on the


part of the subordinate officer. He shall be civilly liable fort willful or negligent
acts which are contrary to law, morals, public policy or good customs, even if he
acted under orders or instructions by his superiors.

12. Liability for tortuous acts


a. Acts done within scope of official authority
1. A public officer, whether judicial, quasi-judicial, or executive, is not personally
liable to one injured in consequence of an act performed within the scope of
official authority, and in line of official duty.

b. Acts done without or in excess or official authority


1. Officers and employees of the State are not immune from suit for their own
tortuous conduct, even where such conduct is committed in the course of their
employment. In the eyes of the law, such acts are wholly without authority.

Quimsing v. Lachica (2 SCRA 182 [1961])

A cockpit was raided by the police on the ground that a cockfight was being illegally held that day,
which was not a legal holiday. Quimsing and 9 others were charged for violation of the Revised
Penal Code and the Revised Administrative Code. As it turned out, the cockfight was authorized by
ordinances of the city passed pursuant to Republic Act No. 938. Bad faith, which was not duly
established, was imputed to respondent policemen who were sued in their private capacity.

Respondents are not personally liable for damages. They were merely faithfully discharging their
duty as law enforcement agents. Respondents were unaware of the ordinances relied upon by
Quimsing. Moreover, respondents were of the opinion that despite the aforesaid ordinances,
cockfighting on Thursday was still illegal under the Revised Penal Code.

Mabutol v. Pascual (124 SCRA 867 [1983])

The building permit previously granted to plaintiffs was revoked on the ground that part of the 3-
door apartment under construction occupied the creek bed. Plaintiffs failed to demolish the building
despite several extensions granted to them. Defendants passed a resolution for the demolition of
the building, which was thereafter demolished.
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A public officer is not liable for damages for performing a duty required by law, and absent bad faith.

In this particular case, the plaintiffs themselves in their complaint stated that the defendants are all
public officials and that they ordered the demolition of the apartment building in the discharge of
their official function. There remains only the question as to whether or not they acted in bad faith
and the answer is in the negative.

Festejo v. Fernando (94 Phil. 504 [1954])

Plaintiff owned sugar lands, part of which was used by respondent director of public works for an
irrigational canal, without the knowledge and consent of the plaintiff. Plaintiff filed an action for
damages against respondent. The trial court dismissed the case on the ground that the suit is
against the State, to which it was not consented.

The trial court erred in dismissing the case. This is a suit against respondent in his personal
capacity. An officer committing the tort is personally liable therefore, and may be sued as any other
citizen and held answerable for whatever injury or damage results from his tortuous acts.

An officer who acts outside the scope of his jurisdiction and without authorization of law may
thereby render himself amenable to personal liability in a civil suit. If he exceeds the power
conferred on him by law, he cannot shelter himself by the plea that he is a public agent acting under
color of office, and not personally. In the eyes of the law, his acts are wholly without authority.

Concepcion, dissenting:

The allegations of the complaint, which emphasizes that the acts complained of were done by
respondent as director of the Bureau of Public Works, clearly shows that he was being sued in his
official capacity. Moreover, in praying that the land be restored to him, plaintiff seeks to divest the
government of its possession of the irrigation canal. The government is, therefore, the real party in
interest.

Palma v. Graciano (99 Phil. 72 [1956])

Plaintiff filed an action for damages against the governor, fiscal, and the province for instituting 2
criminal cases against him, one of which was dismissed, and the other resulting in an acquittal. He
alleged that the cases were filed to harass him and besmirch his reputation. The trial court
dismissed the case on the ground of lack of cause of action.

With respect to the province, there is no cause of action against defendants. As against the public
officials, cause of action exists.

As against the city and province, the prosecution of crimes is not a corporate function, but
governmental or political in character. In the exercise of such functions, municipal corporations are
not responsible for the acts of their officers, except if and when, and only to the extent that they
have acted by authority of the law, and in conformity with the requisites thereof.

The Supreme Court ordered that the case against the governor and the fiscal be remanded to the
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lower court. Plaintiff should be given the opportunity to prove his allegations. When a public officer
goes outside the scope of his duty, particularly when acting tortiously, he is not entitled to protection
on account of his office, but is liable for his acts like any other individual.

Genson v. Adarle (153 SCRA 512 [1987])

X was the successful bidder at a public auction for the sale of junk located at the highway district
engineers (HDE) office. He hired A as laborer to get the junk. On a Saturday (a non-working day),
the driver of the payloader bucket dropped the same on A, causing the latter injuries. A instituted an
action which included G, the HDE who was adjudged liable on the ground that his employee, B, was
using government equipment and that G allowed the same.

The suit against B is not a suit against the State. The accident occurred on a non-working day, and
the work performed was not shown to have been authorized by the government. Although the
equipment used belonged to the government, the work was done for the benefit of X, and therefore
private in nature. The liability, therefore, arose from tort and not from contract, and it is settled that
the State is liable only for torts caused by its special agents specially commissioned to carry out
acts complained of outside of such agents regular duties. There being no proof that the making of
the tortuous inducement was authorized, neither the State nor its funds can be made liable therefor.

The master-servant doctrine in tort law does not apply. B was not working overtime as a
government employee; he was merely moonlighting. A supervisor who merely tolerates his
subordinates to moonlight on a non-working day in their office premises may not be held liable for
everything that happens on that day. No showing of any gain by G, either; its more plausible that he
permitted work on a Saturday because he wanted the compound cleared of the junk, and the best
time for the same to be done is on a non-working day.

Carreon v. Province of Pampanga (99 Phil. 808 [1956])

The Provincial Board agreed to contribute a specified sum to build a bridge that P wanted to service
the property he had subdivided for sale if P could also contribute a specified sum. The Board then
appropriated the sum after P made his contribution. However, the Board stopped work and diverted
the balance of the appropriation to the construction of a different bridge. P brought an action for
damages against members of the Provincial Board.

The defendants are personally liable for damages for having acted illegally, maliciously, and without
any valid reason. When a public officer goes outside the scope of his duty, particularly when acting
tortiously, he is not protected by his office, but liable like any private individual. The liability is even
clearer when the act performed involves corporate and proprietary functions rather than those
strictly governmental and political in nature.

13. Liability under the Civil Code


a. For failure or neglect to perform official duty

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Any person suffering material or moral loss because a public servant or employee refuses or
neglects, without just cause, to perform his official duty may file an action for damages and other
relief against the latter without prejudice to any disciplinary administrative action that may be taken.
(Civil Code, Article 27)

1. One purpose of this article is to minimize bribery: it presupposes that the


refusal or omission of the public official is attributable to malice or inexcusable
negligence.

b. For violating rights and liberties of private individuals


1. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of
the following rights and liberties of another person shall be liable to the latter for
damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for public
use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in ones person, house, papers, and effects against
unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for purposes not
contrary to law;
(13) The right to take part in a peacable assembly to petition the government for
redress of grievances;
(14) The right to be free from voluntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and counsel, to be informed
of the nature and cause of the accusation against him, and to have a speedy
and public trial, to meet witnesses face to face, and to have compulsory
process to secure the attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness against ones self, or from
being forced to confess guilt, or from being induced by a promise of
immunity or reward to make such confession, except when the person
confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual punishment, unless the
same is imposed or inflicted with a statutes which has not been judicially
declared unconstitutional; and
(19) Freedom of access to the courts. (Civil Code, Article 32)

2. In any of the foregoing, whether or not the defendants act or omission


constitutes a criminal offense, the aggrieved party has a right to commence an
entirely separate and distinct civil action for damages and for other relief which

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shall proceed independently of any criminal prosecution, and may be proven by
preponderance of evidence.

3. The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.

Zulueta v. Nicolas (102 Phil. 945 [1958])

Z filed an action for damages against the provincial fiscal for not prosecuting the governor. The
fiscal apparently conducted an investigation of a complaint for libel filed by Z against the governor,
and concluded that there existed a prima facie case against said governor.

The present action is based on Article 27, which contemplates a refusal or neglect, without just
cause, by a public servant to perform his official duty. Zs complaint against the fiscal does not
state a cause of action. The fiscal has the legal duty to prosecute crimes where there is enough
evidence to justify such action. But it is equally his duty not to prosecute when, after an
investigation, he has become convinced the evidence available is not sufficient to establish a prima
facie case.

The fiscal is not bound to accept the opinion of the complainant in a criminal case as to whether or
not a prima facie case exists. Vested with authority and discretion to determine whether there is
sufficient evidence to justify the filing of the information, and having control of the prosecution of a
criminal case, the fiscal cannot be subjected to dictation from the offended party.

c. For failure to render aid or protection to a person

When a member of a city or municipal police force refuses or fails to render aid or protection to any
person in case of danger to life or property, such peace officer shall be primarily liable for damages,
and the city or municipality shall be subsidiarily responsible therefor. The civil action herein
recognized shall be independent of any criminal proceedings, and a preponderance of evidence
shall suffice to support such action. (Civil Code, Article 34)

Zulueta v. Nicolas (102 Phil. 945 [1958])

Z filed an action for damages against the provincial fiscal for not prosecuting the governor. The
fiscal apparently conducted an investigation of a complaint for libel filed by Z against the governor,
and concluded that there existed a prima facie case against said governor.

The present action is based on Article 27, which contemplates a refusal or neglect, without just
cause, by a public servant to perform his official duty. Zs complaint against the fiscal does not
state a cause of action. The fiscal has the legal duty to prosecute crimes where there is enough
evidence to justify such action. But it is equally his duty not to prosecute when, after an
investigation, he has become convinced the evidence available is not sufficient to establish a prima
facie case.

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Amaro v. Sumaguit (5 SCRA 707 [1962])

A was assaulted and shot. He went to the police chief, who refused to assist him, but instead
harassed and terrorized him. As a result thereof, he gave up his right and interest in the
prosecution of the crime. Due to the intercession of the Mayor, the city attorney later filed an
information against the assailants. The police chief continued harassing A and was about to
demand that the latter sign an affidavit exempting the police from dereliction of duty. A filed a suit
against the police chief under Article 21 or Article 27 of the New Civil Code. The trial court dismissed
the case.

The facts set out constituted an actionable dereliction on the police chiefs part in light of Article 27.
The claim for relief was not based on harassment or terrorization, but on the polices unjustified
refusal to render assistance, which was his duty as an officer of the law. The fact that A has the
recourse of filing his complaint directly with the city attorney or by lodging administrative charges
against the defendant does not preclude an action for damages under Article 27.

Vital-Gozon v. Court of Appeals (292 SCRA 124 [1998])

Petitioner was sued both in her official and personal capacity for her continued refusal to restore
respondent to his position in spite of the final and executory decision of the Civil Service
Commission, declaring that respondents transfer / demotion was null and void, hence illegal.

Petitioner is personally liable for the award of moral and exemplary damages for committing an
actionable wrong by unjustifiably refusing or neglecting to perform an official duty. Under Article 27,
in relation to Articles 2217 and 2219 of the Civil Code, a public officer may be liable for moral
damages for as long as those suffered by private respondent were the proximate result of
petitioners wrongful act or omission, i.e., refusal to perform a public duty or neglect in the
performance thereof.

Considering that the culprit here is a public official, propriety of exemplary damages cannot be
questioned. It serves as an example or deterrent so that other public officials can be always
reminded that they are public servants bound to adhere faithfully to the constitutional injunction that
a public office is a public trust. That the aggrieved party is also a public official does not mitigate the
effects of petitioners having failed to observe the required degree of accountability and
responsibility.

The allegations clearly show that petitioner was sued both in her official and private capacities.
Thus, she is personally liable to respondent.

14. Liability on contracts executed in behalf of the government


a. General rule: A public officer acting within the scope of his authority and in his
official capacity is not personally liable on contracts executed in behalf of the
government.

b. Exception: One who executes an unambiguous personal undertaking which makes


no mention of the public agency he serves, or does not indicate that it is executed in
an official capacity, may not escape liability by claiming that the public agency was
the real principal.
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Rivera v. Municipality of Malolos (102 Phil. 285 [1957])

Rivera and the Mayor, in behalf of the municipality, entered into a contract, which was later ratified
by the municipal council through a resolution. However, the contract was later declared void due to
the absence of a prior appropriation, as required by Section 607 of the Revised Administrative Code.

Rivera does not have a valid claim against the municipality. Before a contract may be entered into
by a municipality, the law requires that there should be an appropriation of municipal funds to meet
the obligation, validly passed and approved by the Mayor.

15. Liability for unexplained wealth


a. Republic Act No. 3179 declares forfeiture in favor of the State of any property found
to have been unlawfully acquired by any public official or employee.

Whenever any public officer or employee has acquired during his incumbency an amount of
property which is manifestly out of proportion to his salary as a public officer or employee and to his
other lawful income and the income from legitimately acquired property, said property shall be
presumed prima facie to have been unlawfully acquired. The Solicitor General, upon complaint by
any taxpayer to the city or provincial fiscal who shall conduct a previous inquiry similar to preliminary
investigations in criminal cases and shall certify to the Solicitor General that there has been
committed a violation of the Act and the respondent is probably guilty thereof, shall file, in the name
and on behalf of the Republic of the Philippines, in the [Regional Trial Court] of the city or province
where said public officer or employee resides or holds office, a petition for a writ commanding said
officer or employee to show cause why the property aforesaid, or any part thereof, should not be
declared property of the State. (Republic Act No. 1379, Section 2)

Rivera v. Maclang (7 SCRA 58 [1963])

Same as above, but this time the action is against the Mayor.

The Supreme Court ruled that the Mayor is personally liable. Section 608 of the Revised
Administrative Code states that the officer making a contract that is void under Section 607 shall be
liable for the damage caused to private parties. The intention of the law is to insure that public
officials entering into transactions with private individuals calling for the expenditure of public funds
observe a high degree of caution so that the government may not be a victim of ill-advised or
imprudent action of those assuming to represent it.

1. It creates a presumption juris tantum against the public officer or employee who
acquires property grossly disproportionate to his income (i.e., that the property
was unlawfully acquired). The presumption may be rebutted by showing to the
satisfaction of the court that his acquisition of the property was lawful.

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2. The courts are not bound by the statement of assets and liabilities filed by the
public officer or employee, as the latter is afforded every opportunity to explain
how he had acquired the property in question.

3. Forfeiture proceedings are actions in rem and are civil in nature. A full-blown
trial is not required.

b. Republic Act 3019 penalizes certain acts of public officers and private persons alike
which constitute graft or corrupt practices or which may lead thereto.

If in accordance with the provisions of Republic Act Numbered One thousand three hundred
seventy-nine, a public official has been found to have acquired during his incumbency, whether in
his name or in the name of other persons, an amount of property and/or money manifestly out of
proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or
removal. Properties in the name of the spouse and unmarried children of such public official may be
taken into consideration, when their acquisition through legitimate means cannot be satisfactorily
shown. Bank deposits shall be taken into consideration in the enforcement of this section,
notwithstanding any provision of law to the contrary. (Republic Act No. 3019, Section 8)

Almeda v. Perez (5 SCRA 970 [1962])

Petition for forfeiture was amended to include new items of alleged unlawful acquisitions.
Petitioners objected to the amendment, saying that Republic Act No. 1379 is penal in substance and
effect, hence the presentation of the amended petition without the benefit of a previous preliminary
investigation cannot be allowed.

A study of the provisions of Republic Act No. 1379 readily discloses that the proceeding for
forfeiture is civil in nature and not criminal. The proceeding under the act does not terminate in the
imposition of a penalty, but merely in the forfeiture of illegally acquired properties in favor of the
State. The procedure leading to forfeiture is that provided for in a civil action. Rules on amendment
in ordinary actions are applicable.

Cabal v. Kapunan [6 SCRA 1059 [1962])

Petitioner refused to be sworn as witness and to take the witness stand before a presidential
committee investigating charges of unexplained wealth against him.

Forfeiture partakes of the nature of a penalty or punishment since it is aimed at restraining the
commission of an offense and aiding in the prevention of such. The right against self-incrimination is
available because forfeiture proceedings, in substance, are criminal in nature. It is not to establish,
recover, redress a private or civil right, but to try to punish persons charged with a public offense.
The Almeda doctrine refers only to the procedural aspect and is not overturned.

Republic vs. Sandiganbayan, et al., (G.R. 152154, November 18, 2003, Resolution on the

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Respondents' Motion for Reconsideration)

A forfeiture proceeding is an action in rem, against the thing itself instead of against the person.
Being civil in character, it requires no more than a preponderance of evidence. And by
preponderance of evidence is meant that the evidence as a whole adduced by one side is superior
to that of the other. Hence, the factual findings of the court in a previous decision will, as a
consequence, neither affect nor do away with the requirement of having to prove her guilt beyond
reasonable doubt in the criminal cases against her.

Garcia vs. Sandiganbayan, et al., (G.R. No. 165835, June 22, 2005)

Under R.A. No. 8249, the Sandiganbayan is vested with exclusive original jurisdiction in all cases
involving violations of R.A. No. 1379, and Chapter II, Sec. 2, Title VII, Book II of the Revised Penal
Code, where one or more of the accused are officials occupying the following positions whether in a
permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of
the executive branch occupying the positions of regional director and higher, otherwise classified as
Grade '27' and higher, of the Compensation and Position Classification Act of 989 (R.A. No. 6758),
specifically including: (a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other city department heads; (b)
City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors,
engineers, and other city department heads; (c) Officials of the diplomatic service occupying the
position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all
officers of higher rank; (e) Officers of the Philippine National Police while occupying the position of
provincial director and those holding the rank of senior superintendent or higher; (f) City and
provincial prosecutors and their assistants, and officials and prosecutors in the Office of the
Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state universities or educational institutions or
foundations; (2) Members of Congress and officials thereof classified as Grade '27' and up under the
Compensation and Position Classification Act of 1989; (3) Members of the judiciary without
prejudice to the provision of the Constitution; (4) Chairmen and members of Constitutional
Commission, without prejudice to the provisions of the Constitution; and (5) All other national and
local officials classified as Grade '2' and higher under the Compensation and Position Classification
Act of 1989.

The civil nature of an action for forfeiture was first recognized in Republic v. Sandiganbayan, thus:
"The rule is settled that forfeiture proceedings are actions in rem and, therefore, civil in nature."
Then, Almeda, Sr. v. Perez, followed, holding that the proceedings under R.A. No. 1379 do not
terminate in the imposition of a penalty but merely in the forfeiture of the properties in favor of the
State. It noted that the procedure outlined in the law leading to forfeiture is that provided for in a
civil action.

Ong et. al vs. Sandiganbayan, et. al., (G.R. No. 126858, September 16, 2005)

The attacks against the constitutionality of RA 1379 because it is vague, violates the presumption of
innocence and the right against self-incrimination, and breaches the authority and prerogative of the
Supreme Court to promulgate rules concerning the protection and enforcement of constitutional
rights, are unmeritorious.

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The law is not vague as it defines with sufficient particularity unlawfully acquired property of a public
officer or employee as that "which is manifestly our of proportion to his salary as such public officer
or employee and to his other lawful income and the income from legitimately acquired property." It
also provides a definition of what is legitimately acquired property. Based on these parameters, the
public is given fair notice of what acts are proscribed. The law, therefore, does not offend the basic
concept of fairness and the due process of the Constitution.

Neither is the presumption of innocence clause violated by Sec. 2 of RA 1379 which states that
property acquired by a public officer or employee during his incumbency in an amount which is
manifestly out of proportion to his salary as such public officer or employee and to his other lawful
income and the income from legitimately acquired property shall be presumed prima facie to have
been unlawfully acquired. As elaborated by Fr. Joaquin Bernas, under the principle of presumption
of innocence, it is merely required of the State to establish a prima facie case, after which the
burden of proof shifts to the accused.

Heirs of Gregorio Licaros vs. Sandiganbayan, et al, (G.R. No. 157438, October 18, 2004)

The instant action for reconveyance, restitution, and accounting impleads the Estate/Heirs of
Gregorio Licaros for previous acts committed by the decedent during his lifetime, more particularly
for conspiring with the main defendants to prejudice the Republic. An action to recover ill-gotten
wealth is outside the purview of the ordinary rules on prescription, as contained in Article 1146 of the
Civil Code. Section 15 of Article XI of the 1987 Constitution states:

Section 15. The right of the State to recover properties unlawfully acquired by public officials or
employees, from them or from their nominees or transferees, shall not be barred by prescription,
laches or estoppel.

The intendment of the foregoing constitutional provision -- exempting actions to recover ill-gotten
wealth from the operation of the general rules of prescription -- presumably lies in the special
attendant circumstances and the primordial state interest involved in cases of such nature.

16. Liability of accountable officers to the government


a. Bond requirement
1. Officers whose duties permit / require the possession / custody of government
funds / property shall be accountable therefore and for the safekeeping thereof
in conformity with law.

2. Accountable officer shall be properly bonded in accordance with law.

b. Primary and secondary responsibility


1. The head of any agency or government is primarily and immediate responsible
for all government funds / property pertaining to his agency.

2. Persons entrusted with the possession or custody of the funds or property


under the agency head shall be secondarily liable (immediately responsible to
the head of the agency), without prejudice to the liability of either party to the
government.

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c. General liability for unlawful expenditures
1. Expenditures of government funds in violation of law or regulations shall be a
personal liability of the official or employee directly responsible therefor.

2. While the COA correctly affirmed the disallowance of the salaries and benefits
which the employee unduly received when he continued to hold office despite
his conviction, the liability for refund cannot be imposed upon the head of the
agency because she had no knowledge or any reasonable indication that the
payment of salaries to the employee was actually improper. Although a public
officer is the final approving authority and the employees who processed the
transaction were directly under his supervision, personal liability does not
automatically attach to him but only upon those directly responsible for the
unlawful expenditures (Dimapilis-Baldoz v. Commission on Audit, G.R. No.
199114, 16 July 2013).

d. Measure of liability of accountable officers


1. Every officer accountable for governmental property shall be liable for its money
value, losses, damages, deterioration occasioned by the negligence, in keeping
or using the government property.

2. Every officer accountable for government funds shall also be liable for losses
from the unlawful deposit, use, or application thereof.

e. Liability for acts done by direction of superior officer


1. No accountable officer shall be relieved from liability by reason of his having
acted under the direction of a superior officer in paying out, applying, or
disposing of the funds or property for which he is chargeable, unless, prior to
acting, the accountable officer notified the superior of the illegality.

2. The officer directing illegal payment or disposition is primarily liable for the loss.
The accountable officer who fails to serve notice is secondarily liable.

3. The refund of the disallowed payment of a benefit granted by law to a covered


person, agency or office of the Government may be barred by the good faith of
the approving official and of the recipient (Nazareth v. Villar, G.R. No. 188635,
29 January 2013).

Albert v. Gangan (353 SCRA 673 [2001])

The Commission on Audit found petitioner, then president of NHMFC, liable for the amount covering
the payment of the loan proceeds for the lot acquired by AMAKO, which was disallowed on audit.

Petitioner is not personally liable for the subject amount in the absence of any finding that he has
knowingly participated in the alleged fraudulent transactions. There is no evidence to show that
petitioner had knowledge of the fraudulent scheme perpetrated by some NHFMC employees. In
fact, he immediately filed a complaint with the Ombudsman against the subordinate employees who
appeared to be responsible.

There mere fact that a public officer is the head of an agency does not necessarily mean that he is
the party ultimately liable in case of disallowance of expenses for questionable transactions of his
agency.

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A person who signs documents in the course of transit through standard operating procedures does
not automatically become a conspirator in a crime which transpired at a stage where he had no
participation. Knowledge of the conspiracy and acting and knowing participation must be proven by
positive evidence.

Under Section 103 of Presidential Decree 1445, an official or employee shall be personally liable for
unauthorized expenditures of the following requisites are present: (1) expenditure / use of
government funds / property; (2) expenditures in violation of law or regulation; (3) official is found
directly responsible therefor.

C. Criminal liability
1. Generally
a. The mere fact that an officer is acting in an official capacity will not relieve him from
criminal liability.

b. Public officers may not be held criminally liable for failure to perform a duty
commanded by law when, for causes beyond their control performance is
impossible. However, the absence of corrupt intent is not a defense to an action
against an officer for misconduct, or for willful failure or refusal to perform a
mandatory ministerial duty.

c. The mere expiration of his term of office will not prevent the prosecution and
punishment of the public officer for misdemeanor committed in office, nor does
reelection extinguish the criminal liability incurred by him during his previous term of
office. (Conducto v. Monzon, 291 SCRA 619 (1998); Ingco v. Sanchez, 21 SCRA
1292 (1967); Luciano v. The Provincial Governor, 28 SCRA 517 (1969))

2. Crimes peculiar to certain public officers


a. Revised Penal Code
1. Malfeasance and misfeasance
2. Frauds and illegal exactions and transactions
3. Malversation
4. Infidelity of public officers
5. Other offenses and irregularities, including disobedience, refusal of assistance,
maltreatment of prisoners, anticipation, prolongation and abandonment of
duties and powers of public office, usurpation of powers, and unlawful
appointments.

Macadangdang v. Sandiganbayan (170 SCRA 308 [1989])

Budget officer falsified vouchers for repair of government vehicles and made a request for the
allotment of funds without ascertaining whether or not the repairs were needed.

The budget officer should not be declared a conspirator for not questioning the obvious irregularity
in the preparation of the vouchers. The budget officers lack of care in signing spurious documents
may be a ground for administrative action only. Conspiracy has to be clearly shown.

The budget officers only participation in the alleged conspiracy was to obligate and allot funds.
Just because a person in a chain of processing officers happens to sign a voucher does not

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necessarily mean that he becomes a part of a conspiracy in an illegal crime.

b. Anti-Graft and Corrupt Practices Act


1. Section 3 declares unlawful certain acts constituting corrupt practices of any
public officer

2. Section 6 prohibits members of Congress to acquire pecuniary interest in any


business enterprise benefited by law authored by him.

Arias v. Sandiganbayan (108 SCRA 309 [1989])

Petitioners were convicted for causing undue injury to the government when lanf was assess at
P5/sq.m. in 1973 was acquired by the government at P80/sq.m. in 1978 through negotiated
purchase.

Petitioners should not be convicted in connection with overpricing the lands purchased by the
government. The court would be setting a bad precedent if a head officer plagued by all too
common problems is suddenly swept into conspiracy connections simply because he did not
primarily examine every single detail involved in a transaction before affixing his signature as final
approving authority. Mere signature or approval is insufficient to prove conspiracy. Actual injury (for
overpricing of the land bought by the government) must be established. All heads of office have to
rely, to a reasonable extent, on their subordinates and on the good faith of those who prepare bids,
purchase supplies, or enter into negotiations.

Grio-Aquino, dissenting:

There is conspiracy of silence and inaction where chiefs of office should have been vigilant to
protect government interests.

c. Code of Conduct and Ethical Standards

(a) Any public official or employee, regardless of whether or not he holds office or employment in a
casual, temporary, holdover, permanent or regular capacity, committing any violation of this Act
shall be punished with a fine not exceeding the equivalent of six (6) months' salary or suspension not
exceeding one (1) year, or removal depending on the gravity of the offense after due notice and
hearing by the appropriate body or agency. If the violation is punishable by a heavier penalty under
another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this
Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five
thousand pesos (P5,000), or both, and, in the discretion of the court of competent jurisdiction,
disqualification to hold public office.

(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for
removal or dismissal of a public official or employee, even if no criminal prosecution is instituted
against him.

(c) Private individuals who participate in conspiracy as co-principals, accomplices or accessories,


with public officials or employees, in violation of this Act, shall be subject to the same penal liabilities
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as the public officials or employees and shall be tried jointly with them.

(d) The official or employee concerned may bring an action against any person who obtains or uses
a report for any purpose prohibited by Section 8 (D) of this Act. The Court in which such action is
brought may assess against such person a penalty in any amount not to exceed twenty-five
thousand pesos (P25,000). If another sanction hereunder or under any other law is heavier, the latter
shall apply. (Republic Act No. 6713, Section 11)

d. Forfeiture of Unexplained Wealth Act

Any public officer or employee who shall, after the effective date of this Act, transfer or convey any
unlawfully acquired property shall be repressed with imprisonment for a term not exceeding five
years, or a fine not exceeding ten thousand pesos, or both such imprisonment and fine. The same
repression shall be imposed upon any person who shall knowingly accept such transfer or
conveyance. (Republic Act No. 1379, Section 12)

1. The Act provides for the procedure to declare forfeited any property found to
have been unlawfully acquired by a public officer.

2. It punishes with imprisonment for a term not exceeding 5 years or a fine not
exceeding P10,000 or both such imprisonment or fine, any public officer or
employee who shall transfer or convey any unlawfully acquired property.

e. Civil Service Decree

Whoever makes any appointment or employs any person in violation of any provision of this Decree
or the rules made thereunder or whoever commits fraud, deceit or intentional misrepresentation of
material facts concerning other civil service matters, or whoever violates, refuses or neglects to
comply with any of such provisions or rules, shall upon conviction be punished by a fine not
exceeding one thousand pesos or by imprisonment not exceeding six (6) months, or both such fine
and imprisonment in the discretion of the court. (Presidential Decree No. 807, Section 55)

f. Government Auditing Code

Any violation of the provisions of Sections 67, 68, 89, 106, and 108 of this Code or any regulation
issued by the Commission implementing these sections, shall be punished by a fine not exceeding
one thousand pesos or by imprisonment not exceeding six (6) months, or both such fine and
imprisonment in the discretion of the court. (Presidential Decree No. 1445, Section 128)

1. Section 67 (warrants and checks receivables for taxes or other indebtedness or


the government)
2. Section 68 (issuance of official receipts)
3. Section 89 (limitation on cash advances)
4. Section 106 (liability for acts done by direction of superior officer)
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5. Section 108 (prohibition against pecuniary interest)

g. Local Government Code

Any local official and any person or persons dealing with him who violate the prohibitions provided
in Section 89 of Book I hereof, shall be punished with imprisonment for six months and one day to
six years, or a fine of not less than Three thousand pesos (P3,000.00) nor more than Ten thousand
pesos (P10,000.00), or both such imprisonment and fine at the discretion of the court. (Republic
Act No. 7160, Section 514)

h. National Internal Revenue Code

Violations committed by government enforcement officers. Every official, agent or employee of


the Bureau of Internal Revenue or any other agency of the government charged with the
enforcement of the provisions of this Code, who is guilty of any of the offenses herein below
specified, shall, upon conviction for each act or omission, be fined in a sum of not less than five
thousand pesos but not more than fifty thousand pesos or imprisoned for a term of not less than one
year but not more than ten years, or both:

1. Those guilty of extortion or willful oppression through the use of his office;

2. Those who knowingly demand other or greater sums than are authorized by law or receive any
fees, compensation or reward, except as by law prescribed, for the performance of any duty;

3. Those who willfully neglect to give receipts, as by law required, for any sums collected in the
performance of duty or who willfully neglect to perform any other duties enjoined by law;

4. Those who conspire or collude with another or others to defraud the revenues or otherwise violate
the provisions of this Code;

5. Those who by neglect or design permit the violation of the law by any other person;

6. Those who made or sign any false entry or entries in any books, or make or sign any false
certificate or return;

7. Those who allow, or conspire or collude with another to allow the unauthorized retrieval,
withdrawal or recall of return, statement or declaration after the same has been officially received by
the Bureau of Internal Revenue;

8. Those who, having knowledge or information of a violation of this Code or of any fraud committed
on the revenues collectible by the Bureau of Internal Revenue, fail to report such knowledge or
information to their superior officer or to report as otherwise required by law; and

9. Those who, without the authority of law, demand or accept or attempt to collect, directly or
indirectly, as payment or otherwise any sum of money or other thing of value for the compromise,
adjustment, or settlement of any charge or complaint for any violation or alleged violation of this
Code. (Presidential Decree No. 1158, Section 268)

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Unlawful interest of revenue law enforcers in business. Any internal revenue officer who is or
shall become interested directly or indirectly, in the manufacture, sale, or importation of any article
subject to tax under Title IV (now VI) of this Code or in the manufacture or repair or sale of any die
for the printing, or making of stamps, or labels shall, upon conviction for each act or omission, be
fined in a sum of not less than five thousand pesos but not more than ten thousand pesos, or
imprisoned for a term of not less than two years and one day but not more than four years, or both.
(Presidential Decree No. 1158, Section 270)

Unlawful divulgence of trade secrets. Except as provided in Section 74 (now 64) of this Code
and Section 26 of Republic Act Numbered 6388, any officer or employee of the Bureau of Internal
Revenue who divulges to any person or makes known in any other manner than may be provided by
law information regarding the business, income, or estate of any taxpayer, the secrets, operation,
style or work, or apparatus of any manufacturer or producer, or confidential information regarding
the business of any taxpayer, knowledge of which was acquired by him in the discharge of his
official duties, shall upon conviction for each act or omission, be fined in a sum of not less than five
thousand pesos but not more than ten thousand pesos, or imprisoned for a term of not less than six
months but not more than five years or both. (Presidential Decree No. 1158, Section 269)

Violation of withholding tax provision. Every officer or employee of the government of the
Republic of the Philippines or any of its agencies and instrumentalities, its political subdivisions, as
well as government-owned or controlled corporation including the Central Bank who, under the
provisions of this Code or regulations promulgated thereunder, is charged with the duty to deduct
and withhold any internal revenue tax and to remit the same in accordance with the provisions of
this Code and other laws is guilty of any offense hereinbelow specified shall, upon conviction for
each act or omission, be fined in a sum of not less than five thousand pesos but not more than fifty
thousand pesos or imprisoned for a term of not less than six months and one day but not more than
two years, or both:

1. Those who fail or cause the failure to deduct and withhold any internal revenue tax under any of
the withholding tax laws and implementing regulations;

2. Those who fail or cause the failure to remit taxes deducted and withheld within the time
prescribed by law, and implementing regulations; and

3. Those who fail or cause the failure to file return or statement within the time prescribed, or
render or furnish a false or fraudulent return or statement required under the withholding tax laws
and regulations. (Presidential Decree No. 1158, Section 271)

a. Omnibus Election Code


1. Election offenses committed by public officers are punishable under the Code.

b. Plunder (Republic Act No. 7080)

Estrada vs. Sandiganbayan, et. al., (377 SCRA 538 (2002])

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There is no denying the fact that the "plunder of an entire nation resulting in material damage to the
national economy" is made up of a complex and manifold network of crimes. In the crime of
plunder, therefore, different parties may be united by a common purpose. In the case at bar, the
different accused and their different criminal acts have a commonality - to help the former President
amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended
Information alleged the different participation of each accused in the conspiracy. The gravamen of
the conspiracy charge, therefore, is not that each accused agreed to receive protection money from
illegal gambling, that each misappropriated a portion of the tobacco excise tax, that each accused
ordered the GSIS and SSS to purchase shares of Belle Corporation and receive commissions from
such sale, nor that each unjustly enriched himself from commissions, gifts and kickbacks; rather, it is
that each of them, by their individual acts, agreed to participate, directly or indirectly, in the
amassing, accumulation and acquisition of ill-gotten wealth of and/or former President Estrada.

Estrada vs. Sandiganbayan, et. al., (369 SCRA 394 (2001])

The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a
malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala
in se and it does not matter that such acts are punished in a special law, especially since in the case
of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat
prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check
Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of
the acts.

Our nation has been racked by scandals of corruption and obscene profligacy of officials in high
places which have shaken its very foundation. The anatomy of graft and corruption has become
more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more
ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to
fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting
of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly
tissues of grand-scale corruption, which, if left unchecked, will spread like a malignant tumor, and
ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a
living testament to the will of the legislature to ultimately eradicate this scourge and thus secure
against the avarice and other venalities in public office.

Serapio vs. Sandiganbayan, et. al., (396 SCRA 443 (2003])

There must be a showing that the evidence of guilt against a person charged with a capital offense is
not strong for the court to grant him bail. Thus, upon an application for bail by the person charged
with a capital offense, a hearing thereon must be conducted, where the prosecution must be
accorded an opportunity to discharge its burden of proving that the evidence of guilt against an
accused is strong. The prosecution shall be accorded the opportunity to present all the evidence it
may deem necessary for this purpose. When it is satisfactorily demonstrated that the evidence of
guilt is strong, it is the court's duty to deny the application for bail. However, when the evidence of
guilt is not strong, bail becomes a matter of right.

Part 8. Termination of Official Relations


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A. Specifically

1. Modes of termination of official relations


a. Expiration of term or tenure of office
b. Reaching the age limit (retirement)
c. Death or permanent disability
d. Resignation
e. Acceptance of an incompatible office
f. Abandonment of office
g. Prescription of right to office
h. Removal
i. Impeachment
j. Abolition of office
k. Conviction of a crime
l. Recall

B. Natural causes

1. By expiration of term of office


a. Upon expiration of the officers term, his rights, duties and authority must ipso facto
cease.

b. Term ordinarily means a fixed and definite time prescribed by law or Constitution
by which an officer may hold an office. It does not apply to appointive offices held
at the pleasure of the appointing power.

2. Removal and expiration of term distinguished


a. To remove an officer is to oust him from office before the expiration of his term.

b. When the term is not fixed by law, and the incumbent is relieved by the appointing
authority, the legal effect is the same as if the term had been fixed by Congress
itself. There is no removal.

c. When an appointment is for a definite and renewable period, non-renewal thereof


does not involve dismissal by an expiration of term.

3. Term and tenure distinguished

Term Tenure
The time during which the officer may Represents the period during which the
claim to hold the office as of right incumbent actually holds office
Fixed and definite period of time to hold It may be shorter than the term
office
It is not affected by holding-over of the
incumbent after expiration of the term for
which he was appointed

Nueno v. Angeles (76 Phil. 16 [1946])

Nueno claims right to office for being unable to serve for the full term due to the Japanese

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occupation.

Nueno is not entitled to hold over notwithstanding the expiration of his term. The term of office is
fixed by law and cannot be extended even by reason of war.

Alba v. Alba (100 Phil. 683 [1957])

The law provides that the Vice-Mayor shall hold office at the pleasure of the President. VA was
appointed as Vice-Mayor. Later, the President designated JA as acting Vice-Mayor in place of VA.

The President could legally replace VA without cause. The tenure of the appointee is dependent
upon the pleasure of the President. Thus, the replacement of VA is not removal but an expiration of
his tenure. What is involved here is the creation of an office and the tenure of such office, which has
been made expressly dependent upon the pleasure of the President.

Cadiente v. Santos (142 SCRA 280 [1986])

Cadiente was appointed City Legal Officer of Davao City. The new mayor terminated his services on
the ground that his position was primarily confidential in nature.

The termination of Cadientes services is not removal or dismissal. His position is confidential in
nature. The tenure of officials holding primarily confidential positions ends upon loss of confidence
because their term of office lasts only as long as confidence in them endures. Such cessation
involves no removal.

Cristobal v. Melchor (78 SCRA 175 [1977])

Cristobal, a private secretary in the Office of the President, was terminated.

There was no evidence to indicate that Cristobals position was confidential in nature and thus
subject to removal by the pleasure of the appointing power. In fact, the compensation attached and
designation given to his position suggests the purely or at least mainly clerical nature of his work.

4. Commencement of terms of office


a. The date for commencement of the term is ordinarily fixed for some appreciable
period after the election or appointment.

b. Where no time is fixed, the term will generally begin on the date of election or
appointment.

c. Where the term runs from a certain date, the date of the date is excluded in the
computation.

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5. Power of Congress to fix, shorten, or lengthen term
a. Where term fixed by the Constitution
1. When the Constitution fixed the term of a civil office, it is beyond the power of
Congress to affect the tenure of such office. Congress cannot abridge or
extend the time so provided for. The term of office can be shortened or
lengthened prospectively by the vote of the people ratifying a constitutional
amendment.

b. Where term not fixed by the Constitution


1. Congress may fix the terms and limit the duration of the term of office in any
way it deems fit other than those provided for in the Constitution. If the terms
are provided by law, the beginning and expiration of terms of officers cannot be
left to the discretion of the person holding the office, or of the body having the
appointing power.

2. When Congress creates a public office, it has the power to modify the term of
such office in the public interest.

3. Congress, in the exercise of its budgetary authority, has no power to shorten a


term of office fixed by legislative act by refusing to appropriate funds necessary
to meet payroll requirements.

6. Holding over after expiration of term


a. Hold-over means that the officers term has expired but he should continue
holding his office until his successor is appointed or chosen and qualified.
(Mendoza v. Quisumbing, 186 SCRA 110 (1990); Topacio Nueno v. Angeles, 76 Phil.
12 (1946))
1. Where holding over provided by law
a. When officers are elected or appointed for a fixed term, the office does not
become vacant upon expiration of the term but the present incumbent will
hold office until his successor is elected and qualified to assume it.

2. Where holding over not provided by law


a. Unless such holding over be expressly or impliedly prohibited, the
incumbent may continue to hold until someone else is elected and qualified
to assume office.

3. Where Constitution limits term


a. Where the Constitution itself limits the term of a public officer without
providing that he can continue in office after the expiration of his official
term until his successor is duly qualified, holding over is not permitted.

4. Application of hold-over provision


a. The provision for holding-over applies only where a fixed term is annexed to
an office. It is not applicable where the term is of an indefinite duration,
(e.g., during good behavior or at the pleasure of the appointing power).

5. Purpose of hold-over provision


a. The main purpose of the hold-over provision is to prevent hiatus in the
government pending the time when a successor may be chosen.

6. Status of hold-over officer

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a. A public officer who holds over is a de jure officer if law authorizes his
holding over; otherwise, he is a de facto officer.

Duldulao v. Ramos (91 Phil. 261 [1952])

After a municipality was converted into Occidental Mindoro, Judge Ramos, a judge of the Court of
First Instance of the original province of Mindoro, whose sala is located in Oriental Mindoro, issued
an order affecting a land in Occidental Mindoro.

The judge acted within the scope of his jurisdiction. In the absence of any provision to the contrary,
the judge of Court of First instance (and the Register of Deeds) of the Province of Mindoro continued
after its division to be the judge both of Occidental and Oriental Mindoro.

7. Office created for the accomplishment of a specific act


a. The office terminates and the officers authority ceases with the accomplishment of
the purpose which called it into being (e.g., once the Board of Canvassers fully
performs its duty with the proclamation of the candidates, the board is deemed
functus office).

8. By reaching of age limit


a. When a public officer reaches the age limit, it results in compulsory and automatic
retirement of the public officer.

b. Under the Constitution:


1. Members of the Supreme Court and judges of lower courts hold office during
good behavior or until they reach 70 years or become incapacitated to
discharge the duties of the office.

2. Public officers and employees are deemed compulsorily retired when they reach
65 years of age.

9. By death or permanent disability


a. A public official ceases to hold office upon his death and all his rights and duties
and obligations are extinguished.

b. Permanent disability covers both physical and mental disability. A judicial


determination of the fact of disability is necessary to make any determination
conclusive.

C. Acts or neglect of officer


1. By resignation
a. A public officer has the right to resign. One who gains an elective or appointive
office is not legally committed to finish the term.

b. The right to resign, however, is not unqualified. An office cannot be laid down
without the consent of the appointing power where the public policy requires that
the right shall be declared in a much more restricted manner. This is required so
that public interests will suffer no inconvenience for the want of public servants to
execute the laws.

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c. Resignation should not be used as an escape or as an easy way out to evade
administrative liability.

d. One who has not been elected or appointed to a public office cannot resign, or if
elected or appointed cannot resign until the time has arrived when he is entitled by
law to possess the same.

2. Meaning of resignation
a. Resignation is the formal renunciation or relinquishment of a public office. It
implies an expression by the incumbent in some form, express or implied, of the
intention to surrender, renounce, and relinquish his right to the office and its
acceptance by competent and lawful authority. (Gamboa v. Court of Appeals, 108
SCRA 1 (1981); Ortiz v. Commission on Elections, 162 SCRA 812 (1988); Republic v.
Singun, 548 SCRA 361 (2008))

3. Form of resignation
a. When the law requires resignation to be made in any form, that form must be
substantially complied with.

b. Where no such form is prescribed, no particular mode id required but the


resignation may be made by any method indicative of the purpose. It need not be in
writing, unless so required.

4. What constitutes resignation


a. An intention to relinquish a part of the term,
b. Accompanied by the act of relinquishment, and
c. An acceptance by the proper authority

Gonzales v. Hernandez (2 SCRA 228 [1961])

Gonzales was attorney-agent of the Department of Finance. He was ordered to resign by the
Commissioner of Civil Service who found him guilty of disreputable conduct. His wife was
appointed in his place. Meanwhile, Gonzales accepted temporary appointment in the GSIS. The
Civil Service Board of Appeals ordered his reinstatement.

Gonzales has the right to be reinstated. There was no clear intention on Gonzales part to relinquish
his position by filing a conditional resignation. To constitute a complete and operative act of
resignation, the officer or employee must show a clear intention to relinquish or surrender his
position and there must be an acceptance by a competent and lawful authority.

Ortiz v. Commission on Elections (162 SCRA 812 [1988])

Ortiz was the Commissioner of COMELEC with a term until 1992. In 1986, when Aquino became the
President, he and the other Commissioners wrote President Aquino stating that they place their
position at her disposal. The President accepted this resignation. When Ortiz applied for retirement
benefits, the COMELEC denied it saying that he was not entitled to such retirement benefits
because he did not complete his term.

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A courtesy resignation cannot be properly interpreted as resignation in the legal sense for it sis not
necessarily a reflection of a public officials intention to surrender his position. Rather, it manifests
submission to the will of the political authority and the appointing power. Petitioner, therefore,
should be deemed to have completed his term. The curtailment of his term not being attributable to
any voluntary act on the part of petitioner, equity and justice demand that he should be deemed to
have completed his term albeit much ahead of the date stated in his appointment paper.

Estrada v. Desierto (353 SCRA 452 [2001])

Did Estrada resign as President?

Yes. Resignation can be oral or written express or implied. Although Estrada did not write any
formal letter of resignation, the totality of prior, contemporaneous and posterior facts and
circumstantial evidence show that he indeed resigned. His letter which declares that he is unable to
exercise the powers of his office cannot negate the resignation of petitioner.

5. To whom resignation tendered


a. Generally, resignation should be tendered to the official designated by statute. In
the absence of statutory direction, a public officer should tender his resignation to
the officer or body having authority to appoint his successor or to call an election to
fill the office. A resignation tendered to an improper person is a nullity.

1. Resignation of a presidential appointee can be acted upon as to acceptance or


rejection only by the President. (Teodoro v. Warnes, 101 Phil. 1251 (Unrep.
1957)

2. The Supreme Court cannot accept the resignation of a judge because such
acceptance is the prerogative of the President but it may consider an erring
judge retired with all and benefits and gratuities forfeited. (Office of the Court
Administrator v. Lansang, 186 SCRA 646 (1990))

3. Acceptance by the Department Secretary of the resignation is deemed to be the


act of the President. (Triste, Jr. v. Macaraeg, Jr., 175 SCRA 284 (1989))

Legaspi v. Espina (35 SCRA 181 [1970])

Legaspi was found guilty of the charges of oppression and serious misconduct in office and was
suspended. During his suspension, he filed a certificate of candidacy for the position of
Congressman but lost in the election.

The permanent and automatic loss of office by any elective officer who runs for an office other than
the one which he is actually holding makes no exception for official under suspension at the time
they file their certificate of candidacy. Since petitioner forfeited any right to the office of Mayor,
when he filed, he can no longer seek reinstatement to such position.

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6. Necessity of acceptance of resignation
a. Abandonment unlawful before acceptance
1. Acceptance is necessary, and any public officer who, before acceptance of his
resignation, shall abandon his office to the detriment of the public service shall
be penalized under the Revised Penal Code (arresto mayor).

2. However, even if the resignation is not valid for absence of an acceptance, a


public official may be deemed to have relinquished his office due to his
voluntary abandonment of his position.

b. Resignation revocable before acceptance


1. Without the acceptance by the proper authority, the tender or offer to resign is
revocable unless otherwise provided. The resignation is not complete and the
officer remains in office.

2. The acts of an officer before the official notification of acceptance of his


resignation are de facto. (Gamboa v. Court of Appeals, 108 SCRA 1 (1981))

Punzalan v. Mendoza (140 SCRA 153 [1985])

Mendoza tendered his resignation as Governor of Pampanga effective at the pleasure of the
President. Later, he was appointed as Minister of Justice. Mendoza tendered his resignation again
as Governor (note: under the 1973 Constitution, a member of the Cabinet who is elected Provincial
Governor and who is thereafter appointed as member of the Batasang Pambansa, is not prohibited
to retain his position).

Mendoza can reassume the governorship of Pampanga after having tendered his resignation. The
President did not accept his resignation. His tender of resignation was effective at the pleasure of
the President. Obviously, it was not meant to be effective immediately; acceptance was still
necessary. There was no implied acceptance either as action thereon was held in abeyance.

7. Form of acceptance
a. Acceptance may be manifested either by a formal declaration or by the appointment
of a successor.

8. Withdrawal of resignation
a. Resignation may be withdrawn before acceptance. This is true whether the
resignation is denominated as immediately effective or effective at a future date.

9. Repudiation of resignation (instances)


a. When resignation is transmitted without the officers consent;

b. When resignation is procured by fraud or duress;

c. When resignation is given as an alternative to have charges filed against the public
officer.

10. Effect of duress or fraud

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a. Where the appropriate authority has the legal authority to terminate the officer, and
the officer is charged with misconduct, the resignation by such officer is not
considered as having been given under duress.

11. By acceptance of an incompatible or prohibited office


a. If the office accepts another office incompatible with the first, he ipso facto vacates
the first office. The rule holds regardless whether the second office is inferior to the
first; even when title to the second office fails as where the election was void; nor
when another person has been appointed or elected.

b. When the law or Constitution prohibits the officer from accepting another office
other than that which he holds, he does not forfeit his original office. the second
appointment is void.

12. When offices incompatible with each other


a. There is conflict in the duties and functions of the offices;
b. One is subordinate to the other and is subject to its supervisory power; or
c. The Constitution or the law itself declares the incompatibility.

13. Exceptions to rule on holding incompatible offices


a. Where the officer cannot vacate the first office by his own act, upon the principle
that he will not be permitted to do indirectly what he could not do directly, as when
the law requires approval of the provincial board before a municipal officer can
resign; (U.S. v. Neri, 12 Phil. 30 (1908))

b. Where the first office is held under a different government from that which conferred
the second;

c. Where the officer is expressly authorized by law to accept another office; and

d. Where the second office is temporary.

14. By abandonment of office


a. A public office may become vacant ipso facto by non-user or acquiescence.
Abandonment of an office may be indicated by the action of the incumbent in
voluntarily surrendering it to another under a mistaken belief that the latter has been
elected as his rightful successor, or even by acquiescing in his own removal.

b. A statute may declare that the mere filing of a certificate of candidacy for a second
office by the holder of one office operates as an abandonment.

c. Abandonment may also result from the intentional and completed relinquishment of
any claim to the office.

15. Meaning of abandonment


a. Abandonment refers to the voluntary relinquishment of an office by the holder of
all right, title, or claim thereto with the intention of not reclaiming it, or terminating
his possession and control thereof.

16. When there is abandonment of office


a. Clear intention to abandon office
1. In order to constitute an abandonment of office, the same must be total and
absolute, and must be under such circumstances as clearly to indicate an
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absolute relinquishment thereof. The officer should manifest a clear intention to
voluntarily abandon the office and its duties, and such intention may be inferred
from conduct.

2. Abandonment cannot be lightly inferred or legally presumed from certain


equivocal acts.
a. Mere failure to report for work or absence even after notice to return without
proof of a deliberate and unjustified refusal on the part of the employee to
resume his employment without any intention of returning, is not sufficient.
b. Municipal employees cannot be dropped from the rolls simply because they
had no daily time records at the hotel where the mayor was temporarily
holding office, if they are performing their duties at the municipal building
(Adalim v. Tanias, G.R. No. 198682, 10 April 2013).

3. Two essential elements of abandonment:


a. An intention to abandon
b. An overt or external act by which the intention is carried into effect.
(Canonizado v. Aguirre, 351 SCRA 659 (2001))

b. Acceptance of another office


1. Abandonment of an office by reason of acceptance of another, in order to be
effective and binding, should spring from and be accompanied by deliberation
and freedom of choice, either to keep the old office or renounce it for another.
(Jorge v. Mayor, 10 SCRA 331 (1964); Teves v. Sundiong, 81 Phil. 658 (1948))

c. Concurrence of overt acts and intention


1. There must be concurrence of intention, actual or imputed, to abandon and
some overt acts from which it may be inferred that the public officers concerned
have no more interest. (Peoples Security, Inc. v. National Labor Relations
Commission, 226 SCRA 146 (1993))

d. Failure to discharge duties of office, or to claim or resume it


1. This refers to non-user or a neglect to use a right or privilege or to exercise an
office.

2. Failure to discharge the duties of an office over any particular period of time, or
to claim or resume it after a period in which performance of its functions
became impossible, constitutes abandonment or voluntary relinquishment of the
office.

3. The principles on abandonment should not be too strictly applied to cases


occurring during war or where such nonperformance results from temporary
disability or from involuntary failure to perform.

e. Acquiescence by the officer


1. An officer who is wrongfully discharged but who has unreasonably delayed in
taking steps to vindicate his rights may be deemed to have abandoned his
office.

Canonizado v. Aguirre (351 SCRA 359 [2001])

NAPOLCOM Commissioner was compelled to leave such position because of a law. he accepted
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the position of Inspector General of the PNP Internal Affairs Division (IAD). During the interim,
however, he had filed suit to declare the law which made him leave his NAPOLCOM position
unconstitutional. He claims reinstatement to the NAPOLCOM position.

Canonizado did not waive his claim to reinstatement when he accepted the IAD inspectorship. That
he had no intent to abandon his office is seen by the fact that he questioned the law which made
him leave his NAPOLCOM position by filing suit before the Supreme Court. He had the right to live
during the pendency of the case.

That the said 2 offices (NAPOLCOM and IAD) are incompatible is not questioned. However, we
cannot apply the doctrine that the acceptance of an incompatible office (IAD) ipso facto vacates the
first office (NAPOLCOM) since Canonizado never discharged the duties of both offices
simultaneously. He had already been forced out of NAPOLCOM before he accepted the IAD
position.

17. Abandonment and resignation distinguished


a. Resignation and abandonment are incompatible and contradictory. However,
abandonment may be considered a specie of resignation.

b. The effect of both resignation and abandonment is that the former holder of an
office can no longer legally repossess or reclaim it. Both are voluntary acts.

c. Abandonment is relinquishment through non-user (neglect to use a privilege or a


right or to exercise an easement to an office). Abandonment implies non-user but
non-user does not of itself constitute abandonment absent an intention to relinquish
the office.

d. Resignation is a formal relinquishment and is not a requisite to abandonment.

18. Instances of abandonment


a. A justice of peace who refuses to go back to his old post and his subsequent
acceptance of other employments without any pretense that he simultaneously
continued to perform the functions of his office constitutes abandonment. (Floresca
v. Quetulio, 82 Phil. 126 (1948))

b. A justice of the peace who worked in the Surplus Property Commission as skilled
laborer and clerk-typist and subsequently cashed-in his GSIS policies must be
considered as having abandoned his office as justice of the peace. (Argos v. Veloso,
83 Phil. 929 (1949))

c. Justice of the peace left his office by a mistaken order of the judge of the Court of
First Instance and does not take the necessary steps to recover the same for some
3 years, but presents himself as a candidate for municipal president in the
meantime. (Ortiz v. De Guzman, 49 Phil. 371 (1926))

d. A cadastral judge accepted an ad interim appointment as judge-at-large is deemed


to have abandoned his former position as cadastral judge and the rejection by the
Commission on Appointments of his new appointment did not give him the right to
reoccupy his former position. (Summer v. Ozaeta, 81 Phil. 754 (1948))

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e. Where petitioner who was removed from office as acting chief of police without any
lawful cause accepted another position in the government service. (Agapuyan v.
Ledesma, 101 Phil. 199 (Unrep. 1957))

f. Where a public officer accepts and enjoys his retirement benefits. (Lopez v. National
Marketing Corp., 101 Phil. 349 (1957))

g. Where a public officer for more than 5 years did not take any step to contest the
legality of his removal. (Madrid v. Auditor General, 108 Phil. 578 (1960))

h. Where the City Treasurer of Butuan who was detailed for assignment in the
Department of Finance did not object to the designation of another as acting City
Treasurer, a vacancy was created in the office of the City Treasurer of Butuan which
could be filled permanently or temporarily by the President. (Calo v. Magno, 7
SCRA 380 (1963))

i. The continued and absolute refusal or neglect to qualify at all and to enter upon the
discharge of his duties must operate, so far as the delinquent himself is concerned,
in vacating his title to the office.

j. Where the officer refuses or neglects to exercise the functions of the office for so
long a period as to reasonably warrant the presumption that he does not desire or
intend to perform the duties of the office at all, he will be held to have abandoned it.

k. Where a public officer holding an office under the government, rebels against the
government and seeks or aids its overthrow.

l. Where a public officer has been absent without leave for several months and such
absence was unexplained and unauthorized. (Tadeo v. Daquiz, 224 SCRA 656
(1993))

19. By prescription of right to office


a. Prescriptive period for filing petition for quo warranto
1. A person who claims the right to hold an office occupied by another may file a
quo warranto action. This prescribed, however, 1 year after his removal or
separation from the office. Petitioner must prove that he is entitled to the
position which he alleges the respondent usurps or unlawfully holds. (Adante v.
Dagpen, 96 Phil. 789 (1955))

b. Rationale for the one-year period


1. Title to public office should not be subjected to uncertainties but should be
determined as speedily as possible.

c. Non-application of prescriptive period


1. Exceptional circumstances may justify the non-application of the prescriptive
period in order to grant relief that will serve the ends of justice. Failure to file
quo warranto proceedings does not adversely operate against a dismissed
government employee where it was the repeated assurances of responsible
government officials which contributed to the delay on the filing of the complaint
for reinstatement. (Cristobal v. Melchor, 78 SCRA 175 (1977))

D. Acts of the government or the people


1. By removal
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a. Offices may also become vacant by the removal or dismissal of the incumbent from
the service under a variety of circumstances. Removal may be arbitrary or for
cause.

b. Removal from office may be expressed or implied. Where it is expressly made, no


question can ordinarily arise either as to its purpose or effect.

2. Meaning of removal
a. Removal entails the ouster of an incumbent before the expiration of his term. It
implies that the office exists after the ouster. Synonymous to dismissal.

3. What constitutes removal


a. Appointment of another officer
1. Where an officer may be removed at the superior officers pleasure, the mere
appointment of another in his place constitutes removal. However, the
incumbent must be notified of the action before the removal is considered
effective.

b. Transfer to another office


1. Unconsented transfer from one office to another, whether it results in
promotion or demotion, advancement or reduction in salary, is equivalent to his
illegal removal or separation from the first office. (Lacson v. Romero, 84 Phil.
740 (1949); Garcia v. Lejano, 109 Phil. 116 (1960); Dept. of Education, Culture
and Sports v. Court of Appeals, 183 SCRA 555 (1990); Gloria v. Court of
Appeals, 338 SCRA 5 (2000))

2. A transfer requires a prior appointment and acceptance in order to complete


the appointment. No permanent transfer can take place unless the officer or
employee is first removed from the position held, and then appointed to
another position. (Sta. Maria v. Lopez, 31 SCRA 637 (1970); Divinagracia, Jr. v.
Sto. Tomas, 244 SCRA 595 (1995); Garces v. Court of Appeals, 259 SCRA 99
(1996); Phil. Telegraph & Telephone Corporation v. Court of Appeals, 412 SCRA
203 (2003))

3. A temporary transfer or assignment is permissible even without the employees


prior consent. However, it cannot be done when the transfer is a preliminary
step towards his removal, or is a scheme to lure him away from his permanent
position. (Rosales, Jr. v. Mijares, 492 SCRA 532 (2004))

4. Appointments may be allowed to positions without specification of any


particular office or station (e.g., appointments to the staff of the Civil Service
Commission are not appointments to a specified public office but rather
appointments to particular positions or ranks).

c. Demotion
1. It refers to movement from one position to another involving the issuance of an
appointment with diminution in duties, responsibilities, status or rank which may
or may not involve reduction in salary. (Fernando v. Sto. Tomas, 234 SCRA 546
(1994))

2. Demotion to a lower rate of compensation is also equivalent to removal if no


cause is shown for it when it is not part of any disciplinary action. (Floresca v.
Ongpin, 182 SCRA 692 (1990))
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d. Reassignment
1. It refers to movement of an employee from organization unit to another in the
department or agency which does not involve a reduction in rank, status, or
salary and does not require the issuance of an appointment. (compared to
demotion which involves the issuance of an appointment) (Padolina v.
Fernandez, 340 SCRA 442 (2000))

2. Reassignment needs no prior consent and is considered valid as long as it is


done in good faith.

e. Constructive removal or dismissal


1. It refers to quiting because continued employment is rendered impossible,
unreasonable, or unlikely, when there is demotion in rank or of pay. It exists
when an act of clear discrimination, insensibility or disdain by an employer (or
superior) becomes unbearable to the employee, leaving him no option but to
forego his continued employment. (Norkis Trading Company, Inc. v. Onilo, 544
SCRA 279 (2008))

2. A transfer or reassignment with no definite period or duration results in a


reduction in rank, salary, or status is, in effect, a constructive dismissal. It is
tantamount to a floating assignment that results in diminution in rank.

3. Reassignment which removes from public officers power of supervision over 41


employees who are part of her staff and subordinates results in a diminution of
her status even if the assignment is temporary. (Gloria v. Court of Appeals, 338
SCRA 5 (2000))

4. Reassignment to various offices lasting nearly 10 years should be considered


removal without cause. (Pastor v. City of Pasig, G.R. No. 146873, May 07, 2002)

4. Legislative regulation of removal


a. Where office created by statute
1. Congress may restrict and limit the power of removal as it deems best for the
public interest.

b. Where Constitution prescribes method of and cause for removal


1. Where the Constitution prescribes the method of removal and the causes for
which public officers may be removed, the method and grounds established by
it are exclusive, and it is beyond the power of Congress to remove incumbents
in any other manner, or for any other cause.

5. Removal as incident of right of appointment


a. Where term of office not fixed by law
1. The appointing power holds the power to dismiss the officer where the term or
tenure of a public officer is not fixed by law, and the removal is not governed by
a constitutional or statutory provision. There is no removal involved but
extinguishment of the right of an officer to hold office by expiration of his term.

b. Where term of office fixed by law


1. Where the extent of the term of office is fixed by the statute, the officer can be
removed prior to the end of his term only for cause. This is true even for
temporary appointments as long as the appointments term is fixed.
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c. Where holding of position at pleasure of appointing power or subject to some
supervening event
1. If the statute does not designate the term of the office, the appointee will hold
only during the pleasure of the appointing power, and may be removed at
pleasure at any time without notice or hearing. What is involved is an expiration
of term and not removal.

6. Exercise of the power of removal


a. The power of removal may be absolute or conditional.
1. Absolute when it is vested in the unlimited discretion of the removing officer to
be exercised at such time and for such reasons as the latter may deem proper
and sufficient.

2. Conditional when the time, the manner, or the reason is placed beyond the mere
discretion of the removing officer. (Pangilinan v. Maglaya, 225 SCRA 511 (1993))

b. Removals shall only be for a specified cause or for cause.


1. Where the cause/s is specified, it amounts to a prohibition to a removal for a
different cause not affecting the functions of the office.

2. Where no particular cause is so specified, it must rest in the discretion of the


executive, subject to the right of the courts to examine as to its existence, to
determine what cause shall be sufficient.

7. Power of removal of the President


a. The Constitution does not expressly vest the President with the power to remove
executive officials but his power is implied from any of the following:
1. From his power to appoint;

2. From the nature of the Executive power exercised by the President, the
power to remove being executive in nature;

3. From the Presidents duty to execute the laws;

4. From the Presidents control of all departments, bureaus, and offices; and

5. From the provision that no officer or employee in the Civil Service shall be
removed or suspended except for cause provided by law.

8. Extent of the Presidents power of removal


a. For non-career officers exercising purely executive functions whose tenure is not
fixed by law, the President may remove them with or without cause and Congress
cannot restrict this power.

b. For quasi-legislative or quasi-judicial officers, they may be removed only on grounds


provided by law to protect their independence in the discharge of their duties.

c. For constitutional officers removable only by impeachment, and judges of lower


courts, they are not subject to the removal power of the President.

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d. For civil service officers, the President may remove them only for cause provided by
law.

e. For temporary, provisional, or acting appointments, they may be removed at the


pleasure of the President, with or without cause.

f. For officers holding public offices created by law which authorizes the President to
remove them at pleasure, they may be removed only for cause if they belong to the
civil service. If the law provides that they hold office at the pleasure of the
President, their replacement is not a removal but an expiration of term.

g. Where appointment is based not on usual test of merit and fitness, their tenure is
co-terminous with that of the appointing authority or subject to his pleasure.

h. With respect to local elective officials, the President cannot remove them because
he only exercises supervisory powers over them. Instead, they may be removed by
the sanggunian.

9. Civil service officers and employees entitled to security of tenure


a. Security of tenure means that an officer or employee in the civil service shall not
be suspended or dismissed except for cause as provided by law and only after due
process is accorded.

b. Ground for suspension or removal


1. The Constitution requires appointments in the civil service shall be made only
according to merit and fitness and that removal or suspension of a civil service
officer or employee shall be for cause provided by law.

c. Substantive aspect
1. The phrase for cause provided by law means reasons which the law and
sound public policy recognizes as sufficient ground for removal or suspension or
demotion and after due process is accorded to the officer or employee.

2. It means legal cause and not merely causes which the appointing power
considers sufficient.

3. Cause must, as a general rule, relate to the functions of the office which the
officer holds or be connected with the performance of his official duties.

d. Procedural aspect
1. The guarantee of procedural due process requires notice and opportunity to be
heard before one is disciplined. Complaint against a civil service officer or
employee must be in writing and subscribed and sworn to by the complainant if
it is to be given due course.

10. Guarantee extends to both those in career and non-career positions


a. Persons in the non-career service are so designated because the nature of their
work and qualifications are not subject to classification.

b. The constitutional and statutory guarantee of security of tenure extends to all


permanent officers and employees in the civil service, regardless of their status,
whether career or non-career.

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c. Persons in the non-career service are protected from removal or suspension without
just cause and non-observance of procedural due process.

d. General rule: The constitutional provision constituting policy-determining, primarily


confidential and highly technical as exceptions to the rule requiring appointments to
be based on merit and fitness does not exempt such positions from the rule that no
officer or employee in the Civil Service shall be suspended or removed except for
cause as provided for law.

e. Exception: a person holding a position at the pleasure of the appointing power, who
is removed when this pleasure turns into displeasure, or when there is loss of
confidence, is not removed for the purposes of this rule. His term merely expires.

11. Grounds for removal or suspension under the Constitution


a. Members of Congress

Each 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. (Constitution, Article VI, Section
16(3))

b. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman

The President, the Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for,
and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment. (Constitution, Article XI, Section 2)

c. Members of the judiciary

The Members of the Supreme Court and judges of lower courts shall hold office during good
behavior until they reach the age of seventy years or become incapacitated to discharge the duties
of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts,
or order their dismissal by a vote of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon. (Constitution, Article VIII, Section 11)

d. Civil service officers or employees

No officer or employee of the civil service shall be removed or suspended except for cause
provided by law. (Constitution, Article IX-B, Section 2(3))

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1. Appointments, assignments, reassignments, and transfer in the Career
Executive Service (CES) are based on rank. Security of tenure in the CES is
acquired with respect to the rank and not to the position. Within the CES,
personnel can be shifted from one office or position to another without violation
of their right to security of tenure because their status and salaries are based on
their ranks and not on their jobs. (Cuevas v. Bacal, 347 SCRA 338 (2000))

12. Termination of temporary appointments


a. An appointment, which is temporary in nature, may be terminated at the pleasure of
the appointing power, without notice and regardless of the grounds or reasons.
1. General rule: A temporary appointee has no tenure of office; so strictly
speaking, there is no removal in his termination.

b. Appointee without requisite qualifications


1. A person who does not have the requisite qualifications for a position cannot be
appointed to it 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. (Achocoso v. Macaraig, 195 SCRA 235 (1991))

c. Former incumbent illegally removed or suspended


1. When an incumbent is illegally removed or suspended, his position never
becomes vacant, hence there is no vacancy to which another could be
permanently appointed. The occupancy or incumbency of an one so appointed
is temporary and does not come within the constitutional prohibition against
removal or suspension except for cause.

d. Term of appointment for a definite period fixed by law


1. Where the term of the appointment is for a definite period fixed by law, the term
protects the right of the appointee from being removed from office without
cause.

13. Grounds for disciplinary action under the Local Government Code
a. Removal of an elective local official on any of the following grounds must be by
order of the proper court. The President has no power of removal over elective
officials. Local government heads have jurisdiction to investigate and decide
matters involving disciplinary action against officers and employees under them.
1. Disloyalty to the Republic of the Philippines

2. Culpable violation of the Constitution

3. Dishonesty, oppression, misconduct in office and neglect of duty

4. Commission of any offense involving moral turpitude or an offense punishable


by at least prision mayor

5. Abuse of authority

6. Unauthorized absence for 15 consecutive working days except in the case of


members of the sangguniang panlalawigan, sangguinang panglungsod,
sangguinaing bayan and sangguiang barangay
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7. Application for, or acquisition of, foreign citizenship or residence or the status of
an immigrant of another country

8. Such other grounds as may be provided in the Code and other laws.

14. Grounds for disciplinary action under the Civil Service Law
a. No officer or employee in the Civil Service shall be suspended or dismissed except
on the following grounds for which disciplinary action may be imposed:
1. Dishonesty

Light Rail Transit Authority v. Salva a (G.R. No. 192074, 10 June 2014)

Respondents application for sick leave, if approved, would allow her to be absent from work without
any deductions from her salary. Being a government employee, respondent would have received her
salaries coming from government funds. Since her application for sick leave was supported by a
false medical certificate, it would have been improperly filed, which made all of her absences during
this period unauthorized. The receipt, therefore, of her salaries during this period would be
tantamount to causing damage or prejudice to the government since she would have received
compensation she was not entitled to receive.

This act of causing damage or prejudice, however, cannot be classified as serious since the
information falsified had no direct relation to her employment. Whether or not she was suffering from
hypertension is a matter that has no relation to the functions of her office. Given these
circumstances, the offense committed can be properly identified as less serious dishonesty.

2. Oppression

3. Neglect of duty

4. Misconduct

5. Disgraceful and immoral conduct

6. Being notoriously undesirable

7. Discourtesy in the course of official duties

8. Inefficiency and incompetence in the performance of official duties

9. Receiving for personal use a fee, gift or other valuable thing in the course of
official duties or in connection therewith when such fee, gift, or other valuable
thing is given by any person in the hope or expectation of receiving a favor or
better treatment than that accorded other persons, or committing acts
punishable under the anti-graft laws

10. Conviction of a crime involving moral turpitude

11. Improper or unauthorized solicitation of contribution from subordinate


employees and by teachers or school officials from school children

12. Violation of existing Civil Service Law and rules or reasonable office regulations

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13. Falsification of official documents

14. Frequent unauthorized absences or tardiness in reporting for duty, loafing or


frequent unauthorized absences from duty during regular office hours

15. Habitual drunkenness

16. Gambling prohibited by law

17. Refusal to perform official duty or render overtime service

18. Disgraceful, immoral or dishonest conduct prior to entering the service

19. Physical or mental incapacity or disability due to immoral or vicious habits

20. Borrowing money by superior officers from subordinates or lending by


subordinates to superior officers

21. Lending money at usurious interest rates

22. Willful failure to pay just debts or willful failure to pay taxes due to the
government

23. Contracting loans of money or other property from persons with whom the office
of the employee concerned has business relations

24. Pursuit of private business, vocation or profession without the permission


required by Civil Service rules and regulations

25. Insubordination

26. Engaging, directly or indirectly, in partisan political activities by one holding non-
political office

27. Conduct prejudicial to the best interest of the service

28. Lobbying for personal interest or gain legislative halls and offices without
authority

29. Promoting the sale of tickets in behalf of private enterprises that are not
intended for charitable or public welfare purposes even in the latter cases if
there Is no prior authority

30. Nepotism

b. Complaints must be in writing and subscribed and sworn to by the complainant,


unless initiated by the disciplining authority.

c. Penalties which may be imposed:


1. Removal from service
2. Transfer
3. Demotion in rank
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4. Suspension for not more than 1 year without pay
5. Fine in the amount not exceeding 6 months salary
6. Reprimand

15. Misconduct in office


a. Definitions:
1. Misconduct is a transgression of some established and definite rule of action
more particularly, unlawful behavior or gross negligence by the public officer. It
is improper and wrong conduct and implies wrongful intent and not mere error
of judgment; corrupt or inspired by an intention to violate the law or a persistent
disregard of well-known legal rules.

2. Misconduct in office is one that affects the officers performance of his duties
as an officer and not only as affects his character as a private individual.

3. Misconduct has been defined as a transgression of some established and


definite rule of action, more particularly, unlawful behavior or gross negligence
by a public officer. Misconduct becomes grave if it involves any of the
additional elements of corruption, willful intent to violate the law or to disregard
established rules, which must be established by substantial evidence. (Civil
Service Commission v. Almojuela, G.R. No. 194368, 2 April 2013).

4. Gross neglect of duty or gross negligence refers to negligence characterized by


the want of even slight care, acting or omitting to act in a situation where there
is a duty to act, not inadvertently but willfully and intentionally, with a conscious
indifference to consequences insofar as other persons may be affected. In
cases involving public officials, there is gross negligence when a breach of duty
is flagrant and palpable (Civil Service Commission v. Almojuela, G.R. No.
194368, 2 April 2013).

b. Related to, and connected with, performance of official duties


1. To warrant removal from office of an officer or employee, the misconduct,
misfeasance, or malfeasance must (as a general rule) have a direct relation to
and be connected with the performance of official duties, amounting either to
maladministration or willful, intentional neglect and failure to discharge the
duties of the office (Sariguimba v. Pasok, 155 SCRA (1987)).

2. To constitute an administrative offense, misconduct should relate to or be


connected with the performance of the official functions and duties of a public
officer. In grave misconduct, as distinguished from simple misconduct, the
elements of corruption, clear intent to violate the law or flagrant disregard of an
established rule must be manifest (Pat-Og, Sr. v. Civil Service Commission, G.R.
No. 198755, 5 June 2013).

3. An offense is deemed to be committed in relation to the accuseds office when


the offense cannot exist without the office.
a. Where the municipal mayor was charged with aiming a gun at and
threatening to kill a councilor during a public hearing, after the latter had
rendered a privilege speech critical to the formers administration, the crime
charged is connected with the discharge of his official functions. (Alarilla v.
Sandiganbayan, 357 SCRA 677 (2001))

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b. The act of the Clerk of the Court of Appeals in forging the signature of the
complainant on receipts to avoid her contractual obligation was held to be
an offense constituting conduct prejudicial to the best interest of the
service, not misconduct. (Mariano v. Roxas, A.M. No. CA-02-14-P, July 31,
2002)
4. Other grounds for disciplinary action, like dishonesty and conduct prejudicial to
the best interest of the service under the Civil Service Law may not be
connected with the performance of official duties.
a. Issuing a bouncing check constitutes misconduct. (Lee v. Mangalindan, 548
SCRA 241 (2008))

b. If the act is a crime involving moral turpitude, conviction by final judgment is


required before a public officer or employee may be proceeded against
administratively.

c. Committed during a prior term


1. General rule: The re-election of an officer amounts to condonation of previous
misconduct. Removal cannot extend beyond the term during which the alleged
misconduct occurred, the underlying theory is that each term is separate from
other terms.

2. Exceptions:
a. Criminal case pending against re-elected official (Aguinaldo v. Santos, 212
SCRA 768 (1992))

b. Decision removing official was served on him before re-election, particularly


when it had become final for failure to appeal within the reglementary
period. He is thus deemed disqualified. (Reyes v. Commission on
Elections, 254 SCRA 514 (1996))

d. Not work related or committed in the course of performance of duty


1. The causes which warrant the dismissal of a civil servant need not necessarily
be work-related or committed in the course of the performance of duty by the
person charged. (Bernardo v. Civil Service Commission, 429 SCRA 285 (2004))

2. If a government officer or employee is dishonest or is guilty of oppression or


grave misconduct, even if said defects of character are not connected with his
office, they affect his right to continue in office. The private life of an employee
cannot be segregated from his public life. Dishonesty inevitably reflects on the
fitness of the officer or employee to continue in office and the discipline and
morale of the service. (Remolana v. Civil Service Commission, 362 SCRA 304
(2001, citing Nera v. Garcia, 106 Phil. 1031 (1960))

3. When an officer or employee is disciplined, the object sought is not the


punishment of such officer or employee but the improvement of the public
service and the preservation of the publics faith and confidence in the
government. (Bautista v. Negado, 108 Phil. 283 (1960))

e. Proved by substantial evidence


1. In an administrative case for misconduct, the quantum of proof required is only
substantial evidence. There must be clear and convincing proof that the public
officer or employee was motivated by wrongful intent, committed unlawful
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behavior in relation to his office, or transgressed some established and definite
rules of action. (Malonzo v. Zamora, 311 SCRA 224 (1999))

f. Conduct unbecoming of a police officer


1. Unbecoming conduct means improper performance. It applies to a broader
range of transgressions of rules not only of social behavior but of ethical
practice or logical procedure or prescribed method.
a. A police officer may be summarily dismissed under Section 42 of R.A. No.
6975 (Philippine National Police Act) when the respondent is guilty of
conduct unbecoming a police officer.

b. A police officer guilty of laxity and inefficiency in the performance of his


duties is guilty of conduct unbecoming of a police officer. (Zacarias v.
National Police Commission, 414 SCRA 387 (2003))

Palma, Sr. v. Fortich (47 SCRA 397 [1987])

Mayor Palma was charged with several counts of acts of lasciviousness. Complainants asked
Governor Fortich for an administrative investigation for the purpose of immediately suspending
Palma. Palma was preventively suspended and contends that the crimes charged did not constitute
misconduct in office, which was the basis for the administrative case.

The crimes charged did not constitute misconduct in office. there are 2 grounds for suspension of
municipal officers (1) those related to their office, (2) those not so related. If the crime involving
moral turpitude is not linked to official duty, final conviction is a condition precedent to
administrative action. Misconduct is defined as such which affects an officers performance of his
duties as an officer and not only as affects his character as a private individual.

Sarigumba v. Pasok (155 SCRA 646 [1987])

P, a deputy sheriff, enforced a writ of preliminary injunction by a Makati judge in Ozamis. He then
shipped the properties take under the writ to himself upon request of the plaintiffs after he already
turned the possession over to the plaintiffs.

Ps acts constituted misconduct in office. As an officer of the court, he should have known that the
writ was only enforceable within the region under the issuing courts jurisdiction. He should have
cleared the writs enforceability with the Ozamis court first. He went out of his way to unduly favor
the plaintiffs by shipping the properties in his name after possession had already been turned over.
This is an undue extra service.

Nera v. Garcin (106 Phil. 1031 [1960])

Nera was a clerk in a government hospital and was charged with keeping the funds of its employees
organization. He was charged criminally with malversation. On the basis of said charge, an
administrative case for dishonesty and misconduct was filed and he was preventively suspended.
He assails this on the ground that the crimes charged were not related to the performance of his
official duties.

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The preventive suspension was legal. It is not a penalty, thus, it is not improper in suspending a
person pending his investigation and before the case is heard. When a person is merely charged
with neglect, the same must be in the performance of his duties, but if he is charged with dishonesty
and grave misconduct, these need have no relation to his official duty.

The Supreme Court differentiated appointive and elective official. Elective officials are directly
responsible only to the community that elected him. Thus, he may not be summarily suspended
unless his conduct has some connection with his office. he has a relatively short period in office,
and since suspension will effectively shorten his period, it should not be imposed unless to prevent
damage to the public.

Ochate v. Deling (105 Phil. 385 [1959])

O, the Mayor, was convicted of slight physical injuries in slapping his wife and daughter inside the
municipal building and was further charged with illegal cockfighting and resisting arrest. He was
also administratively charged with misconduct in office for the same acts. The Provincial Governor
suspended him and he now questions the administrative charges and his suspension.

Os acts did not validly give rise to said administrative charges. The act of slapping his wife and kid
was obviously personal in nature and does not affect his official duties. While it is true that he was
convicted, the crime did not involve moral turpitude. The charges of gambling and resisting arrest
with assault on the officers arresting him cannot be the basis either because there was yet no
conviction. The alleged misconduct must be directly related to and connected with the performance
of official duties amounting to mal-administration or willful, intentional neglect and failure to
discharge the duties of an office.

16. Nepotism
a. Situations covered
1. The Civil Service Decree prohibits all appointments in the national and local
governments or any branch or instrumentality thereof, including government-
owned or controlled corporations, made in favor of a relative of the:
a. Appointing authority;
b. Recommending authority;
c. Chief of the bureau or office; or
d. Person exercising immediate supervision over the appointee.

2. Relative refers to members of the family within the 3rd degree of either
consanguinity or affinity.

b. Persons not covered


1. Persons employed in a confidential capacity;
2. Teachers;
3. Physicians;
4. Members of the Armed Forces of the Philippines;
5. Member of any family who, after his / her appointment to any position in an
office or bureau, contracts marriage with someone in the same office or bureau.
The employment or retention therein of both husband and wife may be allowed.

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c. Designation included in prohibition
1. The prohibition includes designation because what cannot be done directly
cannot be done indirectly. It covers all kinds of appointments be they original,
promotional, transfer or reemployment regardless of status. (CSC
Memorandum Circular No. 38 (1993), Part VII, par. 2(d))

d. Purpose of prohibition
1. The purpose of the prohibition is to ensure that all appointments and other
personnel actions in the civil service should be based on merit and fitness and
should never depend on how close or intimate an appointee is to the appointing
power.

17. Grounds for disciplinary action under the Code of Conduct and Ethical Standards
a. The following constitute grounds for administrative disciplinary action under the
Code and without prejudice to criminal and civil liabilities, regardless of whether the
official or employee holds office or employment in a casual, temporary, hold-over,
permanent or regular capacity:
1. Directly or indirectly having financial and material interest in any transaction
requiring the approval of his office. Financial and material interest is defined
as a pecuniary or proprietary interest by which a person will gain or lose
something;

2. Owning, controlling, managing or accepting employment as officer, employee,


consultant, counsel, broker, agent, trustee, or nominee in any private enterprise
regulated, supervised or licensed by his office, unless expressly allowed by law;

3. Engaging in the private practice of his profession unless authorized by the


Constitution, law or regulation, provided that such practice will not conflict or
tend to conflict with his official functions;

4. Recommending any persons to any position in a private enterprise which has a


regular or pending official transaction with his office, unless such
recommendation or referral is mandated by (1) law, or (2) international
agreements, commitment and obligation, or as part of the functions of his office;

5. Disclosing or misusing confidential or classified information officially known to


him by reason of his office and not made available to the public, to further his
private interests or give advantage to anyone, or to prejudice the public interest;

6. Soliciting or accepting, directly or indirectly, any gift, gratuity, favor,


entertainment, loan or anything of monetary value which in the course of his
official duties or in connection with any operation being regulated by, or any
transaction which may be affected by the functions of his office. The following
are not included under the prohibition:
a. Unsolicited gift of nominal or insignificant value not given in anticipation of,
or in exchange for, a favor from a public official or employee or given after
the transaction is completed, or service is rendered.

b. A gift from a member of his family or relative as defined in the Code on the
occasion of a family celebration, and without any expectation of pecuniary
gain or benefit.

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c. Nominal donations from persons with no regular, pending, or expected
transactions with the department, office or agency with which the official or
employee is connected, and without any expectation of pecuniary gain or
benefit.

d. Donations coming from private organizations whether local or foreign, which


are considered and accepted as humanitarian and altruistic in purpose and
mission.

e. Donations from government to government entities.

f. Gifts or grants from foreign governments, and Congress consents thereto in


any of the following cases:
1. The acceptance and retention by a public official or employee of a gift of
nominal value tendered and received as a souvenir or mark of courtesy.

2. The acceptance by a public official or employee of a gift in the nature of


a scholarship or fellowship grant or medical treatment.

3. The acceptance by a public official or employee of travel grant or


expenses for travel taking place entirely outside the Philippines (such as
allowances, transportation, food and lodging) of more than nominal value if
such acceptance is appropriate or consistent with the interests of the
Philippines, and permitted by the head of office, branch, or agency to which
he belongs.

g. Obtaining or using any statement filed under the Code for any purpose
contrary to morals or public policy or any commercial purpose other than by
news and communications media for dissemination to the general public.

h. Unfair discrimination in rendering public service due to party affiliation or


preference.

i. Disloyalty to the Republic of the Philippines and to the Filipino people.

j. Failure to act promptly on letters and request within 15 days from receipt,
except as otherwise provided in the Implementing Rules.

k. Failure to process documents and complete action on documents and


papers within a reasonable time from preparation thereof, except as
otherwise provided in the Implementing Rules.

l. Failure to attend to anyone who wants to avail himself of the services of the
office; or to act promptly and expeditiously on public personal transactions.
m. Failure to file sworn statements of assets, liabilities and net worth, and
disclosure of business interests and financial connections.

n. Failure to resign from his position in the private business enterprise within
30 days from assumption of public office when conflict of interest arises,
and / or failure to divest himself of his shareholdings or interests in private
business enterprise within 60 days from such assumption of office when
conflict of interest arises.

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b. The foregoing acts shall continue to be prohibited for a period of 1 year after
resignation, retirement or separation from public office, except item number 3
above. However, the professional concerned cannot practice his profession in
connection with any matter before the office he used to be with within 1 year after
such resignation, retirement, or separation. Violation of this rule shall be a ground
for administrative disciplinary action upon re-entry to the government service.

18. Administrative investigation of elective local officials


a. Form and filing of administrative complaints
1. A verified complaint shall be prepared as follows:
a. Complaint against any elective official of a province, a highly urbanized city,
an independent component city, or component city shall be filed before the
Office of the President.

b. Complaint against any elective official of a municipality shall be filed before


the Sangguniang Panlalawigan whose decision may be appealed to the
Office of the President.

c. Complaint against any elective barangay official shall be filed before the
Sangguniang Panlungsod or Sangguniang Bayan concerned whose decision
shall be final and executory.

b. Notice of hearing
1. Within 7 days after the administrative complaint is filed, the Office of the
President or the sanggunian concerned, shall require the respondent to submit
his verified answer within 15 days from receipt thereof, and commence the
investigation of the case within 10 days after receipt of such answer of
respondent.

2. When the respondent is an elective official of a province or highly urbanized city,


such hearing and investigation shall be conducted in the place where he renders
or holds office. For all other local officials, the venue shall be the place where
the sanggunian concerned is located.

3. No investigation shall be held or preventive suspension imposed within 90 days


immediately prior to any local election. If preventive suspension was imposed
prior to the 90-day period, it shall be deemed automatically lifted upon the start
of this period.

c. Preventive suspension
1. Preventive suspension may be imposed by:
a. President: for respondent elective officials of a province, highly urbanized
city, independent component city

b. Governor: if respondent is an elective official of a component city or


municipality

c. Mayor: for barangay if the respondent is an elective official of the barangay

2. Preventive suspension may be imposed when:


a. The issues are joined;

b. Evidence of guilt is strong;


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c.There is a great probability that continuance in office could influence
witnesses or pose a threat to the safety and integrity of the records and
other evidence.
3. Any single preventive suspension cannot exceed 60 days. If several cases, it
cannot exceed 90 days within a year on the same ground(s) existing and known
at the time of the first suspension.

4. Upon expiration of the period of suspension, the officer is deemed reinstated


without prejudice to the continuance of the proceedings against him, which shall
be terminated within 120 days from the formal notice of the charges against him.
a. If there is delay in proceedings due to his fault, neglect or request other than
an appeal duly filed, such delay shall not be counted in computing the 120
days.

5. Any abuse in the exercise of the power of preventive suspension shall be


penalized as abuse of authority.

d. Salary of the respondent pending suspension


1. The respondent official shall receive no salary or compensation for the period of
preventive suspension, but upon subsequent exoneration and reinstatement, he
shall be paid the salary or compensation and emoluments due for such period.

e. Rights of respondent
1. The respondent shall have full opportunity:
a. To appear and defend himself in person or by counsel;
b. To confront and cross-examine the witnesses against him;
c. To require the attendance of witnesses; and
d. To produce documentary evidence in his favor through compulsory process

f. Form and notice of decision


1. The investigation of the case shall be terminated within 90 days from the start
thereof. Within 30 days after the end of the investigation, the Office of the
President or the sanggunian concerned shall render a decision in writing stating
clearly and distinctly the facts and the reasons for such decision, copies of
which shall be furnished the respondent and all interested parties.

2. Penalties:
a. Suspension: It should not exceed the unexpired portion of the term of
respondent or a period of 6 months for every administrative offense.

b. Removal: Unlike suspension, removal effectively operates as a bar to


candidacy for an elective position.

g. Administrative appeals
1. Decisions by the Office of the President or sanggunian may, within 30 days
from receipt thereof, be appealed to the following:
a. Sangguniang Panlalawigan: for decisions of the sanggunian of
component cities and municipalities

b. Office of the President: for decisions of the Sangguniang Panlalawigan


and of independent component cities and highly urbanized cities

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h. Execution pending appeal
1. Decisions are final and executory despite the appeal. Thus, in the event the
respondent wins the appeal, the execution of the decision will be considered as
preventive suspension and he shall be entitled to the salary and emoluments
during the period pending appeal.

2. Decisions of the Office of the President are final and executory.

3. Administrative Order No. 23 issued on December 17, 1992 prescribes the rules
and procedures applicable to administrative disciplinary cases filed against
elective local officials of provinces, highly urbanized cities, independent
component cities, component cities, and cities and municipalities in Metro
Manila.
a. The President shall act upon these complaints as Disciplining Authority and
he may act through the Executive Secretary.

b. The Secretary of the Interior and Local Government is designated as


Investigating Authority and he may constitute an Investigating Committee in
the Department for the purpose.

Administrative Order No. 23


PRESCRIBING THE RULES AND PROCEDURES ON THE INVESTIGATION OF
ADMINISTRATIVE DISCIPLINARY CASES AGAINST ELECTIVE LOCAL OFFICIALS OF
PROVINCES, HIGHLY URBANIZED CITIES, INDEPENDENT COMPONENT CITIES,
COMPONENT CITIES, AND CITIES AND MUNICIPALITIES IN METROPOLITAN MANILA

RULE 1
PRELIMINARY PROVISIONS

Section 1. Coverage. These rules and procedures shall apply to administrative disciplinary cases
filed against: (a) the governors, and members of the sangguniang panlalawigan; (b) the mayors, vice
mayors, and members of the sangguniang panlungsod of highly urbanized cities, independent
component cities, and component cities; and (c) the mayors, vice mayors, and members of the
sangguniang panlungsod or bayan of cities or municipalities in Metropolitan Manila.

Sec. 2. Disciplinary Authority. All Administrative complaints, duly verified, against elective local
officials mentioned in the preceding Section shall be acted upon by the President. The President,
who may act through the Executive Secretary, shall hereinafter be referred to as the Disciplining
Authority.

Sec. 3. Investigating Authority. The Secretary of the Interior and Local Government is hereby
designated as the Investigating Authority. He may constitute an Investigating Committee in the
Department of the Interior and Local Government (DILG) for the purpose.

RULE 2
GROUNDS FOR ADMINISTRATIVE DISCIPLINARY ACTION

Section 1. Grounds. An elective local official may be disciplined, suspended, or removed from
office on any of the following grounds:

a) Disloyalty to the Republic of the Philippines;

b) Culpable violation of the Constitution;


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c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;

d) Commission of any offenses involving moral turpitude or an offenses punishable by at least


prision mayor, which is from six (6) years and one (1) day to twelve (12) years imprisonment.

e) Abuse of authority;

f) Unauthorized absence for fifteen (15) consecutive working days in case of local chief executives
and four (4) consecutive sessions in the case of members of the sangguniang;

g) Application for, or acquisition of, foreign citizenship or residence of the status of an immigrant of
another country; and

h) Such other grounds as may be provided by the Local Government Code of 1991; Republic Act
No. 6713; Republic Act No. 3019; Administrative Code of 1987; Revised Penal Code; and all other
applicable general and special laws.

RULE 3
COMPLAINT

Section 1. How initiated. An administrative case may be initiated by any private individual or any
government officer or employee by filing a sworn written complaint against any elective local official
enumerated under Sec. 1, Rule I hereof. It may also be initiated motu proprio by the Office of the
President or any government agency duly authorized by law to ensure that local government units
(LGUs) act within their prescribed powers and functions.

Sec. 2. Form of complaint. The complaint, accompanied by affidavits of witness or evidences in


support of the charge, shall be addressed to the President. It shall be drawn in clear, simple, and
concise language and in methodical manner as to apprise the respondent of the nature of the charge
against him and to enable him to prepare his defense. The party filing the complaint shall be called
the complainant, while the official against whom the complaint is filed shall be called the respondent.

Sec. 3. Where filed. The complaint shall be filed with the Records Office, Office of the President,
Malacaang, Manila. However, for cases against elective officials of LGUs concerned outside
Metropolitan Manila, the complaint may be filed through the concerned Regional Director of the
DILG, who shall transmit the same to the Secretary of the Interior and Local Government, within
forty-eight (48) hours from receipt thereof. In this regard, the Regional Director concerned shall
authenticate all the pertinent documents presented to him.

Upon receipt of the said documents, the Secretary of the Interior and Local Government shall
transmit the same to the Office of the President, within forty-eight (48) hours from receipt of the
same.

A copy of the complaint shall be furnished to each of the following:

a) the Office of the Governor in the case of component cities;

b) the Metropolitan Manila Authority in the case of cities and municipalities in Metropolitan Manila;
and

c) the DILG in all cases.

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Sec. 4. Filing fee. A fee of Two Hundred Pesos (P200.00) shall be charged for every complaint
filed with the Office of the President, payable to the "Cashier, Office of the President."

Pauper complaints duly certified as such in accordance with the Rules of Court shall be exempted
from the payment of the filing fee.

RULE 4
ANSWER

Section 1. Notice. Within seven (7) days after the complaint is filed, the Disciplining Authority shall
issue an order requiring the respondent to submit his verified answer within fifteen (15) days from his
receipt thereof. In the case of complaints filed through the DILG Regional Office, the said order shall
be coursed through the Secretary of the Interior and Local Government.

Sec. 2. Form of answer. The answer, accompanied by affidavits of witnesses or evidences in


support of the defense, shall be addressed to the President and shall be drawn in clear, simple, and
concise language and in methodical manner as to traverse the charge.

Sec. 3. Where filed. The answer shall be submitted to the Records Office, Office of the President,
Manila. However, for cases against elective officials of LGUs concerned outside Metropolitan
Manila, the answer may be submitted through the concerned Regional Director of the DILG, who
shall transmit the same to the Secretary of the Interior and Local Government, within forty-eight (48)
hours from receipt thereof. In this regard, the Regional Director concerned shall authenticate all the
pertinent documents presented to him.

Upon receipt of the above documents, the Secretary of the Interior and Local Government shall
transmit the same to the Office of the President, within forty-eight (48) hours from receipt of the
same.

A copy of the answer shall be furnished to each of the following:

a) the complainant;

b) the Office of the Governor in the case of component cities;

c) the Metropolitan Manila Authority in the case of cities and municipalities in Metropolitan Manila;
and

d) the DILG in all cases.

Sec. 4. Failure to answer. Unreasonable failure of respondent to file his verified answer within
fifteen (15) days from receipt of the complaint against him shall be considered as waiver of his right
to present evidence in his behalf.

RULE 5
PRELIMINARY INVESTIGATION

Section 1. Commencement. Within forty-eight (48) hours from receipt of the answer, the
Disciplining Authority shall refer the complaint and answer, together with their attachments and other
relevant papers, to the Investigating Authority who shall commence the investigation of the case
within ten (10) days from receipt of the same.

Sec. 2. Failure to commence preliminary investigation. Unreasonable failure to commence the


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preliminary investigation within the prescribed period by the person or persons assigned to
investigate shall be a ground for administrative disciplinary action.

Sec. 3. Evaluation. Within twenty (20) days from receipt of the complaint and answer, the
Investigating Authority shall determine whether there is a prima facie case to warrant the institution
of formal administrative proceedings.

Sec. 4. Dismissal motu propio. If the Investigating Authority determines that there is no prima
facie case to warrant the institution of formal administrative proceedings, it shall, within the same
period prescribed under the preceding Section, submit its recommendation to the Disciplining
Authority for the motu proprio dismissal of the case, together with the recommended decision,
resolution, and order.

Sec. 5. Preliminary conference. If the Investigating Authority determines that there is prima facie
case to warrant the institution of formal administrative proceedings, it shall, within the same period
prescribed under the preceding section, summon the parties to a preliminary conference to consider
the following:

a) Whether the parties desire a formal investigation or are willing to submit the case for resolution on
the basis of the evidence on record; and

b) If the parties desire a formal investigation, to consider the simplification of issues, the possibility
of obtaining stipulation or admission of facts and of documents, specifically affidavits and
depositions, to avoid unnecessary proof, the limitation of number of witnesses, and such other
matters as may aid the prompt disposition of the case.

The Investigating Authority shall encourage the parties and their counsels to enter, at any stage of
the proceedings, into amicable settlement, compromise and arbitration, the terms and conditions of
which shall be subject to the approval of the Disciplining Authority.

After the preliminary conference, the Investigating Authority shall issue and Order reciting the
matters taken up thereon, including the facts stipulated and the evidences marked, if any. Such
order shall limit the issues for hearing to those not disposed of by agreement or admission of the
parties, and shall schedule the formal investigation within ten (10) days from its issuance, unless a
later date is mutually agreed in writing by the parties concerned.

Sec. 6. Venue of hearing. When the respondent is an elective official of a province or highly
urbanized city, the preliminary investigation as contemplated in this Rule shall be conducted in the
place where he renders or holds office. For all other local elective officials, the venue shall be the
place where the sanggunian concerned is located.

Sec. 7. 90-day ban. No preliminary investigation shall be imposed within ninety (90) days
immediately prior to any local election.

RULE 6
PREVENTIVE SUSPENSION

Section 1. Power to suspend. Preventive suspension may be imposed by the Disciplining


Authority in cases where the respondent is an elective official of the following LGUs:

a) provinces;
b) highly urbanized cities;
c) independent component cities; and
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d) cities and municipalities in Metropolitan Manila.

The governor shall, upon the direct order of the Disciplining Authority, preventively suspend an
elective official of a component city, who is under formal administrative investigation by the Office of
the President.

Sec. 2. 90-day ban. No preventive suspension shall be imposed within ninety (90) days
immediately prior to any local election. If the preventive suspension has been imposed prior to the
90-day period immediately preceding a local election, it shall be deemed automatically lifted upon
the start of aforesaid period.

Sec. 3. Grounds. Preventive suspension may be imposed at any time after the issues are joined,
that is, after respondent has answered the complaint, when the evidence of guilt is strong and, given
the gravity of the offense, there is a great probability that the continuance in office of the respondent
could influence the witnesses or pose a threat to the safety and integrity of the records and other
evidence.

Sec. 4. Duration. Any single preventive suspension of local elective officials shall not extend
beyond sixty (60) days; provided that, in the event that several administrative cases are filed against
an elective official, he cannot be preventively suspended for more than ninety (90) days within a
single year on the same ground or grounds existing and known at the time of the first suspension.

Sec. 5. Automatic reinstatement. Upon expiration of the preventive suspension, the suspended
elective official shall be deemed reinstated in office without prejudice to the continuation of the
proceedings against him, which shall be terminated within one hundred twenty (120) days from the
time he was formally notified of the case against him. However, if the delay in the proceeding of the
case is due to his fault, or request, other than the appeal duly filed, the duration of such delay shall
not be counted in computing the time of termination of the case.

Sec. 6. Salary of respondent pending suspension. The respondent, who is preventively


suspended from office, shall receive no salary or compensation during such suspension; but, upon
subsequent exoneration and reinstatement, he shall be paid his full salary or compensation,
including such emoluments accruing during such suspension.

RULE 7
FORMAL INVESTIGATION

Section 1. Procedural due process. The respondent shall be accorded full opportunity to appear
and defend himself in person or by counsel, to confront and cross-examine the witnesses against
him, and to require the attendance of witnesses and the production of documents through the
compulsory process of subpoena or subpoena duces tecum.

Sec. 2. Who conducts the hearing. The formal administrative investigation shall be conducted by
the Investigating Authority.

Sec. 3. Failure to commence formal investigation. Unreasonable failure to commence the formal
investigation within the prescribed period in the preliminary conference order by the person or
persons assigned to investigate shall be aground for administrative disciplinary action.

Sec. 4. Power to take testimony or receive evidence. The Investigating Authority is hereby
authorized to take testimony or receive evidence relevant to the administrative proceedings, which
authority shall include the power to administer oaths, summon witnesses, and require the production
of documents by subpoena duces tecum pursuant to Book 1, Chapter 9, Section 37 of the
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Administrative Code of 1987.

Anyone who, without lawful excuse, fails to appear upon summons issued under authority of the
preceding paragraph or who, appearing before the Investigating Authority exercising the power
therein defined, refuses to make oath, give testimony or produce documents for inspection, when
lawfully required, shall be subject to discipline as in case of contempt of court and, upon application
by the Investigating Authority, shall be dealt with by the judge of the proper regional trial court in the
manner provided for under Book VII, Chapter 3, Section 13, in relation to Chapter 1, Section 2 (1), of
the Administrative Code of 1987.

Sec. 5. Notice of hearing. The parties and their witnesses shall be notified by subpoena of the
scheduled hearing at least five (5) days before the date thereof, stating the date, time and place of
the hearing.

Sec. 6. Venue of hearing. When the respondent is an elective official of a province or highly
urbanized city, the formal investigation as contemplated in this Rule shall be conducted in the place
where he renders or holds office. For all other local elective officials, the venue shall be the place
where the sanggunian concerned is located.

Sec. 7. Request for subpoena. If a party desires the attendance of a witness or the production of
documents, he should make formally request for the issuance of the necessary subpoena or
subpoena duces tecum at least three (3) days before the scheduled hearing.

Sec. 8. Postponement. Postponement of investigation shall be discouraged and shall be allowed


only in meritorious cases, like illness of the parties or counsels and other similar case. No
postponement for a period longer than seven (7) days shall be allowed, and in no case shall the total
number of postponements for one party be more than twenty (20) days.

Sec. 9. Stenographic record of proceedings. The testimony of each witness and the manifestation
of the parties and counsels during an investigation shall be taken in shorthand or stenotype. A
transcript of the proceedings made by the official stenographer or stenotypist and duly certified by
him shall be prima facie a correct statement of such proceedings.

Sec. 10. Order of hearing. Unless otherwise directed by the Investigating Authority, the order of a
hearing shall be as follows:

a) The complaint shall produce the evidence on his part;

b) The respondent shall then offer evidence in support of his defense; and

c) The parties may then respectively offer rebutting evidence, unless the Investigating Authority, for
good reasons and in the furtherance of justice, permits them to offer evidence upon their original
case.

Sec. 11. Order of Examination. The order in which a witness may be examined shall be as follows:

a) Direct examination by the proponent;


b) Cross examination by the opponent;
c) Re-direct examination by the proponent; and
d) Re-cross examination by the opponent.

Sec. 12. Termination of formal investigation. The formal investigation of the case shall be
terminated by the Investigating Authority within ninety (90) days from the start thereof. Unreasonable
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failure to complete the formal investigation after the said period by the person or persons assigned
to investigate shall be a ground for disciplinary action.

Sec. 13. Memoranda. The Investigating Authority may allow the parties to submit their respective
memoranda, together with their respective draft resolutions and orders for consideration of the
Investigating Authority, within fifteen (15) days after the termination of the formal investigation.

RULE 8
EVIDENCE

Section 1. Rules of evidence. In administrative disciplinary proceedings

a) The Investigating Authority may admit and give probative value to evidence commonly accepted
by reasonably prudent men in the conduct of their affairs;

b) Documentary evidence may be received in the form of copies or excepts, if the original is not
readily available. Upon request, the parties shall be given opportunity to compare the copy with the
original. If the original is in the official custody of a public officer, a certified copy thereof may be
accepted; and

c) The Investigating Authority may take notice of judicially cognizable facts and of generally technical
or scientific facts within it specialized knowledge. The parties shall be notified and afforded an
opportunity to contest the facts so noticed.

Sec. 2. Marking. All documentary evidence or exhibits shall be properly marked by letter (A, B, C,
etc.), if presented by the complainants, and by numbers (1, 2, 3, etc.), if presented by the
respondent. They shall be attached to the records or, if voluminous, kept in a separate folder marked
"Folder of Exhibits", which shall also be attached to the records.

RULE 9
REPORT OF INVESTIGATING AUTHORITY AND
TRANSMISSION OF RECORDS

Section 1. Transmission of Records to Disciplining Authority. The Investigating Authority shall


forward to the Disciplining Authority its findings and recommendations, together with the following:

a) the draft decision, resolution and order;

b) the complete records with each page consecutively numbered and initialed by the custodian of
the records;

c) a summary of proceedings thereon from the filing of the complaint to the transmittal of the records
in chronological order indicating the action taken on the incidents involved; and

d) a list of all pleadings, motions, manifestations, annexes, exhibits, and other papers or documents
filed by the contending parties, as well as the corresponding orders or resolutions.

Such documents shall be forwarded to the Disciplining Authority within twenty (20) days

a) from receipt of the last pleading and evidence, if any, in case the respondent does not elect a
formal investigation;

b) after the expiration of the period within which to submit the same; or after the termination of the
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formal investigation; or

c) after the parties have submitted their respective Memoranda if so allowed.

The transcript of the proceedings shall be paged consecutively and in chronological order, sewed on
the left-hand side, and properly indexed, showing the page on which the testimony of each witness
begins.

Sec. 2. Records classification. Records in administrative disciplinary cases are classified as


confidential in nature and any information as to the charges, accusation, or facts adduced may not
be released, and such records may not be available, except to the proper authorities and, upon
request, to the parties-in-interest or their authorized representatives on the "need-to-know" basis
pursuant to Memorandum Circular No. 78 dated August 14, 1964, as amended by Memorandum
Circular No. 196 dated July 19, 1968, prescribing rules governing security of classified matter in
government offices.

RULE 10
DECISION

Section 1. Rendition of decision. Within thirty (30) days after receipt of the report of the
Investigating Authority and the transmittal of records, the Disciplining Authority shall render a
decision in writing stating clearly and distinctly the facts and reasons for such decision. Copies of
said decision shall immediately be furnished the respondent and all interested parties.

Sec. 2. Finality of decision. The decision of the Disciplining Authority shall become final and
executory after the lapse of thirty (30) days from receipt of a copy thereof by the complainant or the
respondent, as the case may be, unless a motion for reconsideration is filed within the said such
period. Save in exceptionally meritorious cases, only one motion for reconsideration by any one
party shall be allowed, which shall suspend the running of the 30-day reglementary period.

Sec. 3. Execution pending appeal. An appeal shall not prevent a decision from becoming final or
executory. The respondent shall be considered as having been placed under preventive suspension
during the pendency of an appeal. In the event the appeal results in an exoneration, the respondent
shall be paid his salary and such other emoluments accruing during the pendency of the appeal.

RULE 11
PENALTIES

Section 1. Suspension or removal. A respondent found guilty of any of the offenses enumerated
in Rule 2 hereof may be meted the penalty of suspension or removal depending on the evidence
presented and the aggravating or mitigating circumstances that may be considered by the
Disciplining Authority.

Sec. 2. Suspension. The penalty of suspension shall not exceed the unexpired term of the
respondent, or a period of six (6) months for every administrative offense, nor shall said penalty be a
bar to the candidacy of the respondent so suspended as long as he meets the qualifications
required for the office.

Sec. 3. Removal. An elective local official may be removed from office on the grounds
enumerated in Rule 2 hereof by order of the proper court or the Disciplining Authority whichever first
acquires jurisdiction to the exclusion of the other.

The penalty or removal from office as a result of an administrative investigation shall be considered a
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bar to the candidacy of the respondent for any elective position.

RULE 12
EXECUTIVE CLEMENCY

Section 1. Removal of administrative penalties or disabilities. In meritorious cases, the President


may, after his decision has become final and executory, commute or remove administrative penalties
and disabilities imposed upon elective local officials in administrative disciplinary cases, subject to
such terms and conditions as he may imposed in the interest of the service.

RULE 13
MISCELLANEOUS PROVISIONS

Section 1. Effects and application of relevant laws. This Administrative Order implements the
Local Government Code of 1991 and its Implementing Rules and Regulations approved and
adopted under Administrative Order No. 270 dated February 21, 1992; Book VI, Chapter 3, Sections
10-16 of the Administrative Code of 1983; and Executive Order No. 26 dated October 7, 1992. In all
matters not provided in this Administrative Order, the Rules of Court and the 1987 Administrative
Code shall apply in a suppletory character.

Sec. 2. Repeal. Administrative Order No. 195 dated September 10, 1990, as amended by
Administrative Order No. 239 dated September 27, 1991, is hereby repealed.

Sec. 3. Effectivity. This Administrative Order shall take effect fifteen (15) days from publication in
the Official Gazette.

Joson v. Torres (290 SCRA 279 [1998])

Respondents (Vice-Governor of Nueva Ecija and members of the Sangguniang Panlalawigan) filed
with the Office of the President a letter-complaint against petitioner (Governor of Nueva Ecija)
charging petitioner with grave misconduct and abuse of authority. They prayed for the suspension
or removal of petitioner.

Respondents alleged that while they were at a scheduled session of the Sangguniang Panlalawigan,
petitioner belligerently barged into the session hall, angrily kicked the door and chairs and uttered
threatening words at them while several armed men circled the area. Respondents claim that the
incident was an offshoot of their resistance to a pending legislative measure supported by petitioner
(that the province obtain a P150 million loan from PNB) and was intended to harass them into
approving the said legislative measure.

Upon instruction of the President, the DILG Secretary went to Nueva Ecija to settle the controversy.
The parties entered into a peace agreement but such failed, so
reiterated their letter-complaint against petitioner who was ordered to file his answer. After granting
petitioners request for extension to file an answer, the DILG informed him that his failure to submit
his answer would be considered a waiver to present evidence ex parte. The extensions consumed
55 days. Petitioner filed his answer 9 months after the notice.

The DILG Secretary issued an order declaring petitioner in default and having waived his right to
present evidence. Respondents were ordered to present evidence ex parte.

On recommendation of the DILG Secretary, the Executive Secretary issued an order, by authority of
the President, placing petitioner under preventive suspension for 60 days pending investigation.
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Petitioner filed for certiorari and prohibition with the Court of Appeals challenging the order of
preventive suspension and default. The Court of Appeals dismissed the petition.

DILG denied petitioners motion to conduct formal investigation, declaring that the submission of
position papers substantially complies with the requirements of procedural due process in
administrative proceedings.

The Executive Secretary, by authority of the President, adopted the DILG Secretarys findings and
recommendations and imposed on petitioner the penalty of suspension of 6 months without pay.

The denial of petitioners motion to conduct formal investigation is erroneous. Petitioners right to a
formal investigation is spelled out in Administrative Order No. 23. Section 5 thereof provides that at
the preliminary conference, the investigating authority shall summon the parties to consider whether
they desire a formal investigation. The investigating authority does not have the discretion whether
or not a formal investigation would be conducted. The records show that petitioner filed a motion
for formal investigation.

An erring elective official has rights akin to the constitutional rights of an accused. These rights are
essentially part of due process. He has the right to (a) appear and defend himself in person or by
counsel; (b) confront and cross-examine the witnesses against him; (c) compulsory attendance of
witness and the production of documentary evidence.

These rights are reiterated in the implementing rules and regulations of the Local Government Code
and in Administrative Order no. 23. Petitioner formally claimed his right to a formal investigation
after his answer ad cautelam was admitted.

Petitioners right to a formal investigation was not satisfied when complaint against him was decided
on the basis of position papers. Administrative Order No. 23 states that the investigating authority
may require the parties to submit their respective memoranda but only after formal investigation and
hearing.

The jurisprudence cited by the DILG in its order denying petitioners motion for formal investigation
applies to appointive officials and employees. Administrative disciplinary proceedings against
elective or government officials are not exactly similar to those against appointive officials. Indeed,
the provisions applicable to these 2 groups are separate and distinct; generally, the Local
Government Code for elective officials and the Civil Service Law for appointive officials.

Rules on removal and suspension of elective officials are more stringent than those for appointive
officials. The procedure of requiring position papers in lieu of a hearing in administrative cases is
expressly allowed with respect to appointive officials but not to those elected.

Jurisdiction over administrative disciplinary action against elective officials is lodged in 2 authorities:
the disciplining authority and the investigating authority,

The disciplining authority is the President, whether acting by himself or through the Executive
Secretary. Administrative Order No. 23 delegates the power to investigate to the investigating
authority, which is the DILG Secretary, who may act by himself or constitute an investigating
committee, or the disciplining authority may designate a special investigating committee.

This is not undue delegation because the President remains the disciplining authority. What is
delegated is the power to investigate only. Moreover, the DILGs power to investigate is based on
the alter-ego principle or the doctrine of qualified political agency.

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19. Disciplinary action against appointive local officials and employees
a. Administrative discipline
1. The investigation and adjudication of administrative complaints against
appointive local officials and employees, including their suspension and removal
shall be in accordance with the Civil Service law and rules and other pertinent
laws. The results of the administrative investigations shall be reported to the
Civil Service Commission.

b. Preventive suspension
1. Local chief executive may preventively suspend for a period not exceeding 60
days any subordinate official or employee under his authority pending
investigation if:
a. The charge involves dishonesty, oppression or grave misconduct or neglect
in the performance of duty; or

b. There is reason to believe that respondent is guilty of the charges which


would warrant his removal.

2. Upon expiration of the preventive suspension, the suspended official or


employee shall be automatically reinstated without prejudice to continuation of
the proceedings against him.

3. If the delay in the proceedings is due to his fault, neglect or request, the time of
the delay shall not be counted in computing the period.

c. Administrative investigation
1. It may be conducted by a person or committee duly authorized by the local chief
executive. Findings and recommendations made must be submitted to the local
chief executive within 15 days from the end of the hearings conducted. A
decision shall be made within 90 days from the time the respondent is formally
notified of the charges.

d. Disciplinary jurisdiction
1. The local chief executive may impose the following penalties upon subordinate
officials and employees under his jurisdiction:
a. Removal from service;
b. Demotion in rank;
c. Suspension for not more than 1 year without pay;
d. Fine in an amount not exceeding 6 months salary;
e. Reprimand

2. If the penalty imposed is suspension without pay for not more than 30 days, his
decision shall be final.

3. If the penalty imposed is heavier than suspension of 30 days, the decision shall
be appealable to the Civil Service Commission, which shall decide the appeal
within 30 days from receipt thereof.

e. Execution pending appeal

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1. An appeal shall not prevent the execution of a decision of removal or
suspension. If the respondent is exonerated, he shall be reinstated to his
position with all the rights and privileges appurtenant thereto from the time he
had been deprived thereof.

20. Disciplinary jurisdiction of the Civil Service Commission


a. Scope
1. The Civil Service Commission has jurisdiction over all employees of government
branches, subdivisions, instrumentalities, and agencies, including government-
owned or controlled corporations with original charters. It is the single arbiter of
all controversies pertaining to civil service positions in the government service,
whether career or non-career.

2. It has quasi-judicial functions or the authority to hear and decide administrative


disciplinary cases instituted directly with it or brought to it on appeal, and to
enforce or order execution of its decisions, resolutions or orders.

3. When the law bestows upon a government body the jurisdiction to hear and
decide cases involving specific matters, it is to be presumed that such
jurisdiction is exclusive unless it be proved that another body is likewise vested
with the same jurisdiction, in which case, both bodies have concurrent
jurisdiction over the matter (Pat-Og, Sr. v. Civil Service Commission, G.R. No.
198755, 5 June 2013).

b. Appellate jurisdiction over administrative disciplinary cases


1. The Civil Service Commission shall decide upon appeal all administrative
disciplinary cases involving the imposition of a penalty of suspension for more
than 30 days, or a fine in an amount exceeding 30 days salary, demotion in rank
or salary or transfer, removal or dismissal from office.

2. Final orders or resolutions of the Commission are appealable to the Court of


Appeals through a petition for review. (Rules of Court, Rule 43, Section 5)

c. Jurisdiction of heads of departments, agencies and instrumentalities


1. The heads of departments, agencies, and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their jurisdiction.

2. Their decisions shall be final in case the penalty imposed is suspension for not
more than 30 days or fine in an amount not exceeding 30 days salary.

3. Decisions of heads of office or bureau which are appealable to the Civil Service
Commission may be initially appealed to the department and finally to the
Commission.
a. The decision shall be executory pending appeal except when the penalty is
removal which shall be executory only after confirmation by the department
head concerned.

d. Investigation by a regional director or similar official


1. An investigation may be entrusted to a regional director or similar official who
shall make the necessary report and recommendation to the chief of bureau or
office or department within the period.

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e. Execution of decision pending appeal
1. An appeal shall not stop the decision from being executory.

2. When the penalty is suspension or removal, the respondent shall be considered


as having been under preventive suspensions during the pendency of the
appeal in the event he wins the appeal.

f. Reconsideration of a final and executory decision not allowed


1. The Civil Service Commission has no power or authority to reconsider its
decision which has become final and executory (following the doctrine of
finality of judgment) even if it later discovers that its judgment is erroneous.

2. Mandamus is the correct remedy to enforce an order of the Commission which


has become final and executory. Resort to summary proceedings is not
allowed.

g. Power to terminate employment; academic freedom of institutions of higher learning


1. Educational institutions of higher learning have the academic freedom to
determine for itself on academic grounds who may teach, what may be taught,
how it shall be taught, and who may be admitted to study. This includes the
authority to determine who should be retained in its rolls of professors and other
academic personnel.

2. The Civil Service Commission has no authority to force the U.P. to dismiss a
member of its faculty even in the guise of enforcing Civil Service Rules (on
leaves). (University of the Philippines v. Civil Service Commission, 356 SCRA 57
(2000))

3. The Commission is not a co-manager or surrogate administrator of government


offices and agencies as its functions and authority are limited to approving or
reviewing appointments to determine their concordance with the Civil Service
Law. (Chang v. Civil Service Commission, 191 SCRA 663 (1990))

21. Appeal by party adversely affected by the decision


a. Appeals, where allowable, shall be made by the party adversely affected by the
decision (i.e., the government employee against whom the administrative case is
filed for the purpose of disciplinary action).

b. In administrative disciplinary cases, a judgment of exoneration is not appealable.


1. The Supreme Court overruled prior decisions holding that the civil service law
does not contemplate a review of decisions exonerating officers and employees
from administrative charges. (Civil Service Commission v. Dacoycoy, 306 SCRA
425 (2002))

c. In an administrative case, the complainant is, in a real sense, merely a witness. No


private interest is involved in an administrative case as the offense is committed
against the government. The complainant, not being the party adversely affected by
a decision declaring the respondent not guilty of the charge, has no legal personality
to interpose an appeal except where the respondent failed to question the appeal.

d. The CSC has standing as a real party in interest and can appeal the CAs decisions
modifying or reversing the CSCs rulings, when the CA action would have an

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adverse impact on the integrity of the civil service (Civil Service Commission v.
Almojuela, G.R. No. 194368, 2 April 2013).

22. Withdrawal of complaint against respondent


a. Desistance of complainant does not preclude the taking of disciplinary action
against an officer or employee. Neither does it warrant the dismissal of the
administrative case against him nor dissuade the court from imposing the
appropriate sanction. (Cruz v. Dalisay, 152 SCRA 482 (1987))

b. Criminal and administrative cases impressed with public interest


1. Cases involving misconduct, nonfeasance, misfeasance, or malfeasance in
office of officers and employees are impressed with public interest for they
relate to public office, which is a public trust. (Briones v. Caniya, 248 SCRA 504
(1995))

c. Peoples faith and confidence in government involved


1. A complaint for misconduct, malfeasance or misfeasance against a public
officer or employee cannot just be withdrawn at any time by the complainant
because there is a need to maintain the faith and confidence of the people in the
government and its agencies and instrumentalities.

d. Truth and justice, not choice of witnesses, must rule


1. Courts look with disfavor upon retractions of testimonies previously given in
court because affidavits of retraction or desistance can easily be secured from
poor and ignorant witnesses through intimidation or monetary consideration.
Thus, an affidavit of desistance is not binding on the office of the Ombudsman
and the Supreme Court will not interfere with the Ombudsmans exercise of his
investigatory and prosecutory functions. (Loquias v. Office of the Ombudsman,
338 SCRA 62 (2000))

2. In cases, however, where an administrative case cannot proceed without the


active cooperation of the complainant, the court may find itself with hardly any
alternative but to dismiss the complaint. (Dagsa-an v. Conag, 290 SCRA 12
(1998))

23. Cessation of office of respondent


a. Cessation from office of respondent because of death, resignation, or retirement
neither warrants dismissal of the complaint nor renders the case moot and
academic.

b. In order for the Court to acquire jurisdiction over an administrative proceeding, the
complaint must be filed during the incumbency of the respondent public official or
employee. Once jurisdiction has attached, the same is not lost by the mere fact that
the public official or employee was no longer in office during the pendency of the
case. Cessation from office by reason of resignation, death or retirement is not a
ground to dismiss the case filed against the said officer or employee at the time that
he was still in the public service, or render it moot and academic (Office of the Court
Administrator v. Grageda, A.M. No. RTJ-10-2235, 11 March 2013).

c. The death or retirement of any judicial officer from the service does not preclude the
finding of any administrative liability to which he shall still be answerable (San
Buenaventura v. Migri .

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24. Procedure in administrative cases against non-Presidential appointees
a. Under Presidential Decree No. 807 (Civil Service Decree) and Executive Order No.
292 (Administrative Code of 1987):

1. Who may commence administrative proceedings


a. Head of department or office of equivalent rank, or head of local
government, or chiefs of agencies, or regional directors, against a
subordinate officer or employee; or

b. Any person upon sworn written complaint. Complainant shall submit sworn
statements covering his testimony and those of his witnesses with his
documentary evidence.
1. If on the basis of such papers a prima facie case is not found to exist,
the disciplining authority shall dismiss the case.

2. If a prima facie case exists:


a. The disciplining authority shall notify respondent in writing of the
charges against him, with attached copies of the complaint, sworn
statements, and other documents submitted.

b. The respondent is allowed not less than 72 hours after receipt of the
complaint to answer the charges in writing under oath, together with
supporting sworn statements and documents, in which he shall
indicate whether or not he elects a formal investigation if his answer
is considered unsatisfactory. If the answer is found satisfactory, the
disciplining authority shall dismiss the case.

c. A formal investigation shall nevertheless be conducted when from


the allegations of the complaint and answer and supporting
documents, the merits of the case cannot be decided judiciously
without conducting such investigation.

d. The investigation shall be held neither earlier than 5 days nor later
than 10 days from the disciplining authoritys receipt of
respondents answer. The investigation shall be finished within 30
days from the filing of the charges, unless extended by the
Commission in meritorious cases.

e. The investigation is conducted only for the purpose of ascertaining


the truth without necessarily adhering to technical rules of
procedure. A decision shall be made within 30 days from
termination of the investigation or submission of the report of the
investigator (investigator submits report within 15 days from
conclusion of the investigation).

2. What is the period for appeal


a. Appeals, where allowable, shall be made by the party adversely affected
within 15 days from receipt of the decision, unless a petition for
reconsideration is seasonably filed.

1. Petition for Reconsideration


a. Only one petition for reconsideration shall be entertained and based
only on the following grounds:
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1. New evidence has been discovered which materially affects the
decision rendered;
2. Decision is not supported by the evidence on record;
3. Errors of law or irregularities have been committed prejudicial to
the interest of the respondent.

2. Notice of Appeal
a. It shall be filed with the disciplining office which shall forward the
records of the case and notice of appeal to the appellate authority
within 15 days from the filing of the notice of appeal, with its
comments, if any.

b. It shall specifically state:


1. The date of the decision appealed from;
2. Date of receipt of the decision;
3. Grounds relied upon for excepting from the decision.

b. Under Executive Order No. 26-A


1. Period for deciding cases or incidents:
a. Unless a different period is fixed by a special law, all contested cases shall
be decided within 30 days from the date of submission for resolution.

b. Where the officers action is only recommendatory to his immediate superior


or head of office, he shall submit his recommendation within 20 days from
the date of submission of the case or incident for resolution.

The approving officer shall have 10 days from the submission of the
recommendation to decide the case or incident.

c. A case or incident is deemed submitted for resolution upon the expiration of


the period for filing a memorandum, position paper, or last pleading.

d. Every officer charged with the resolution of cases or incidents shall submit
to his immediate superior within 10 days following the end of every month a
Sworn Statement of Disposition of Cases stating all cases or incidents
submitted to him for resolution and which have been decided during the
prescribed period.

e. Only one motion for reconsideration is allowed which shall be decided within
15 days from submission for resolution. No other motion is allowed except
the motion for reconsideration and opposition to it.

f. Cases and incidents pending resolution upon the effectivity of the E.O. shall
be decided within 30 days from the E.O.s effectivity.

g. The salary of any officer who fails to submit the Statement of Disposition of
Cases within the prescribed period shall be held by his superior until the
said officer complies with paragraph (d) above, without prejudice to
imposition of other appropriate penalties as provided by law.

2. Abbreviation of proceedings
a. All administrative agencies are directed to adopt and include in their
respective Rules of Procedure the following proceedings:
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1. Rules encouraging parties and their counsels to enter into amicable
settlement, compromise and arbitration.

2. Rules adopting the mandatory use of affidavits in lieu of direct


testimonies and the preferred use of depositions whenever practicable
and convenient.

3. Rules requiring the parties to submit, in addition to the memorandum


position paper or last pleading required, a draft of the decision they
seek, stating clearly the facts and the law upon which it is based.

4. Rules avoiding postponements of hearings or trials and other dilatory


tactics which the parties or their counsels might employ.

3. Applicability
a. These rules shall apply to government agencies including any department,
bureau, board, office, commission, authority or officer of the National
Government authorized by law or executive order to adjudicate cases.

b. These rules shall not apply to Congress, the Judiciary, the Constitutional
Commissions, military establishments in all matters relating to the Armed
Forces Personnel, Board of Pardons and Parole, and state universities and
colleges.

25. Merit System Protection Board


a. The MSPB is composed of a Chairman and 2 members. It is intended to be an
office in the Civil Service Commission, a part of its internal structure and
organization.

b. Powers and functions


1. Hear and decide cases involving employers and employees of the Civil Service
Commission. Its decision shall be final except those involving dismissal or
separation from the service which may be appealed to the Commission.

2. Hear and decide cases brought before it by officers and employees who feel
aggrieved by the determination of appointing authorities involving personnel
action and violation of the merit systems. The decision of the Board is final
except those involving division chiefs or officials of higher ranks which may be
appealed to the Commission.

3. Directly take cognizance of complaints affecting functions of the Commission,


those which are unacted upon by the agencies, and such other complaints
which require direct action by the Board.

4. Administer oaths, issue subpoena duces tecum, take testimony in any


investigation or inquiry, punish for contempt in accordance with the same
procedures and penalties prescribed in the Rules of Court.

5. Promulgate rules and regulations to carry out the functions of the Board subject
to the approval of the Commission.

c. Appellate jurisdiction of the Civil Service Commission

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1. The jurisdiction of the Board is exclusive, hence, the Civil Service Commission
cannot take cognizance of the cases specified except those instances provided
for by law which directly vests the Commission with the power to hear and
decide administrative disciplinary cases instituted directly with it or brought to it
on appeal.

2. The Commission, however, as the final arbiter on any matter concerning


personnel action in the government, is empowered by the law to review
decisions of the Board.

3. It has been held, however, that under the decree, the Commission has no
appellate jurisdiction over the Boards decision exonerating officers and
employees from administrative charges as the said law does not contemplate a
review of the said decisions.

4. The right to appeal is a mere statutory privilege and may be exercised only in
the manner and in accordance with the provisions of law.

5. The remedy of appeal may be availed of only in a case where the respondent
public officer or employee is found guilty of the charge against him.

26. Preventive suspension


a. Kinds
1. Preventive suspension pending investigation; 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.

b. Preventive suspension pending investigation


1. It is imposed if the charge against the public officer involves dishonesty,
oppression or grave misconduct, or neglect in the performance of duty, or if
there are reasons to believe that respondent is guilty of charges which would
warrant his removal from service.

2. Purpose of suspension: To prevent the officer or employee from using his


position or in any way influencing potential witnesses or tamper with records
which may be vital to the prosecution of the case.

3. Preventive suspension does not violate the constitution as it is not a penalty and
the officer is still entitled to the presumption of innocence since his culpability
must still be established.

4. If the investigation is not finished and a decision is not rendered within that
period, the suspension will be lifted and respondent will be automatically
reinstated.

c. Right to compensation where employee is exonerated


1. Section 24 of the Ombudsman Act of 1989 (Republic Act No. 6770) categorically
provides that preventive suspension shall be without pay.

2. No compensation is due for the period of preventive suspension pending


investigation but only for the period of suspension pending appeal in the event
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that the employee is exonerated. Being found liable for a lesser offence is not
exoneration.

3. It is not enough that the employee is exonerated of the charges against him. His
suspension must be unjustified.

4. Republic Act No. 6715 expressly provides for the payment of private employees
of full backwages, inclusive of allowances and other benefits from the time of
suspension to reinstatement. In the case of public employees, the provision for
payment of salaries during preventives suspension pending investigation has
been deleted.

5. Under Section 23 of the Implementing Rules and Regulations of Executive Order


292 and other pertinent civil service laws, first offense for violation of reasonable
office rules is punishable by reprimand. Despite having been meted out with
reprimand, he should be given back his salaries during his suspension.

d. Preventive suspension pending appeal


1. Unlike suspension pending investigation, preventive suspension pending appeal
is punitive in nature and in effect considered illegal if respondent is exonerated.
Thus, he should be reinstated with full pay for the period of suspension. If
respondent is not exonerated, the period of suspension becomes part of his
final penalty.

2. It is because respondent is penalized before his sentence is confirmed that he


should be paid his salaries in the event he is exonerated. It would be unjust to
deprive him of his pay as a result of the immediate execution of the decision
against him.

3. Under the Administrative Code of 1987, the decision of the Department


Secretary confirming the dismissal is executory even pending appeal. Since the
dismissal order remains valid and effective until modified or set aside, the
intervening period during which an employee is permitted to work cannot be
argued as amounting to unjustified suspension.

4. The proper reckoning point for the disallowance of payment of salaries should
be pegged from the date of the Department Secretarys order of the
administrative penalty of dismissal, since it was immediately executory, and the
government official had already been disqualified from receiving any salary or
benefit attendant to his post (Dimapilis-Baldoz v. Commission on Audit, G.R.
No. 199114, 16 July 2013).

e. Suspension from office under Section 13 of RA No. 3019, mandatory

Any public officer against whom any criminal prosecution under a valid information under this Act or
under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended
from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits
under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during suspension, unless in the meantime administrative
proceedings have been filed against him. (Republic Act No. 3019, Section 13)

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1. Section 13 of Republic Act No. 3019 provides that the accused public official
shall be suspended from office while the criminal prosecution is pending in
court. The term office applies to any office which the officer charged might
concurrently be holding and not necessarily the particular office under which he
was charged.

2. A law granting preventive suspension is procedural, not penal. Thus, it must be


construed liberally.

3. The law does not require that the guilt of the accused must be established in a
pre-suspension proceeding to determine (1) the strength of evidence of
culpability, (2) the gravity of the offense charged, (3) whether or not his
continuance in office would 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.

f. Pre-condition for suspension


1. The imposition of suspension is not automatic or self-operative. A pre-
condition, therefore, is the existence of a valid information, determined at a pre-
suspension hearing.

2. The purpose of the pre-suspension hearing is to determine the validity of the


information and thereby furnish the court with a basis to either suspend the
accused and proceed with the trial on the merits of the case, or refuse
suspension of the latter and dismiss the case, or correct any part of the
proceeding which impairs its validity.

g. Duration of suspension
1. Suspension may not be for an indefinite period or for an unreasonable length of
time. The duration of preventive suspension is co-equal with the period
prescribed for deciding administrative disciplinary cases. If the case is decided
before 90 days, then the suspension will last less than 90 days. But if the case
is not decided within 90 days, then the suspension may not exceed the
maximum period of 90 days.

2. When the administrative case against the officer or employee under preventive
suspension is not finally decided by the disciplining authority within the period
of 90 days after the date of suspension of the respondent who is not a
presidential appointee, the respondent shall be automatically reinstated in the
service. However, the period may be interrupted when the delay in the
disposition of the case is the respondents fault.

3. An employee who is exonerated is not entitled to the payment of his salaries


because his suspension, being authorized by law cannot be unjustified.

h. In the case of members of the Philippine National Police

Upon the filing of a complaint or information sufficient in form and substance against a member of
the PNP for grave felonies where the penalty imposed by law is six (6) years and one (1) day or more,
the court shall immediately suspend the accused from office until the case is terminated. Such case

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shall be subject to continuous trial and shall be terminated within ninety (90) days from arraignment
of the accused. (Republic Act No. 6975, Section 47)

1. The suspension from the office of a member of the Philippine National Police
charged with a grave offense, where the penalty is 6 years and 1 day or more,
shall last until the termination of the case. The suspension cannot be lifted
before the termination of the case although trial is not terminated within the
period.

i. In the case of local elective officials

1. (a) Preventive suspension may be imposed:


(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an
independent component city;

(2) By the governor, if the respondent is an elective official of a component city or municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay.

(b) Preventive suspension may be imposed at any time after the issues are joined, when the
evidence of guilt is strong, and given the gravity of the offense, there is great probability that the
continuance in office of the respondent could influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence: Provided, That, any single preventive suspension of
local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event
that several administrative cases are filed against an elective official, he cannot be preventively
suspended for more than ninety (90) days within a single year on the same ground or grounds
existing and known at the time of the first suspension.

(c) Upon expiration of the preventive suspension, the suspended elective official shall be deemed
reinstated in office without prejudice to the continuation of the proceedings against him, which shall
be terminated within one hundred twenty (120) days from the time he was formally notified of the
case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or
request, other than the appeal duly filed, the duration of such delay shall not be counted in
computing the time of termination of the case.

(d) Any abuse of the exercise of the power of preventive suspension shall be penalized as abuse of
authority. (Republic Act No. 7160, Section 63)

2. A shorter period of 60 days is prescribed under Section 63 of Republic Act No.


7160 as the maximum period for preventive suspension for local elective
officials because the respondent is elected by the people and such preventive
suspension may only be ordered after the issues are joined.

3. It is also intended to limit the period of suspension that may be imposed by the
mayor, a governor, or the President, who may be motivated by partisan political
consideration. In contrast, the Ombudsman, who can impose a longer period, is
not likely to be similarly motivated by partisan political consideration.
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j. In the case of presidential appointees and other elective officials
1. Preventive suspension in the case of presidential appointees and other elective
officials may raise a due process question if continued for an unreasonable
length of time.

k. Where suspension imposed by Ombudsman

The Ombudsman or his Deputy may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the
charge against such officer or employee involves dishonesty, oppression or grave misconduct or
neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the
respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six (6) months, without pay, except when the delay in the disposition
of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the
respondent, in which case the period of such delay shall not be counted in computing the period of
suspension herein provided. (Republic Act No. 6770, Section 24)

1. Under Section 24 of Republic Act No. 6770, the Ombudsman may suspend,
under certain conditions, any officer or employee under his authority pending an
investigation and the preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman, but not more than 6 months
without pay, except when the delay in the disposition of the case is due to his
fault, in which case, the period of the delay shall not be counted in computing
the period. The longer period was meant to meaningfully implement the
authority of the Ombudsman.

l. Prior notice and hearing not required


1. Preventive suspension is not a penalty; hence, prior notice and hearing are not
required. It is a preliminary step in the administrative investigation.

m. Members of Congress covered by R.A. No. 3019

Any public officer against whom any criminal prosecution under a valid information under this Act or
under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended
from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits
under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during suspension, unless in the meantime administrative
proceedings have been filed against him. (Republic Act No. 3019, Section 13)

1. The order of suspension prescribed under Section 13 of Republic Act No. 3019
is distinct from the power of Congress to discipline its own ranks under Section
16(3), Article VI of the Constitution. The suspension contemplated under the
relevant provision of the Constitution is a punitive measure imposed upon
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determination by the Senate or House or Representatives upon an erring
member.

2. The suspension under Section 13, Republic Act No. 3019 is not a penalty, but a
preliminary, preventive measure that may be imposed for misbehavior on a
respondent as a Member of Congress.

27. Removal and suspension distinguished


a. As to duration
1. The difference between the power to remove and the power to suspend is only
one of degree. Suspension is qualified expulsion and it constitutes either
temporary or permanent disenfranchisement.

2. When the suspension of a public officer is to continue until the final disposition
of a criminal prosecution, it becomes a virtual removal. (Lacson v. Roque, 92
Phil. 456 (1952))

b. As to nature
1. Preventive suspension is not a penalty but a mere protective measure so that
the officer or employee who is charged may be separated from the scene of his
alleged misfeasance while the same is being investigated to insure proper and
impartial conduct of an investigation. Preventive suspension is distinct from the
administrative penalty of removal from office.

c. As to time of imposition
1. Suspension, not being a penalty, may be imposed pending investigation.
Removal, being a penalty, is meted upon termination of the investigation or final
termination of the case.

28. Schedule of administrative penalties


a. Administrative penalties are classified into grave, less grave, and light offenses.

b. Penalties for Grave Offenses


1. Dismissal
a. Dishonesty
b. Gross neglect of duty
c. Grave misconduct
d. Being notoriously undesirable
e. Conviction of a crime involving moral turpitude
f. Falsification of official document
g. Physical or mental incapacity or disability due to vicious habits
h. Engaging, directly or indirectly, in partisan political activities by one holding
a non-political office
i. Receiving for personal use of a fee, gift or other valuable thing in the course
of official duties when given with hope or expectation of receiving a favor or
better treatment or committing acts in violation of an anti-graft law
j. Contracting loans of money or other property from persons with whom the
office of the employee has business relations
k. Soliciting or accepting, directly or indirectly, any gift, gratuity, etc. in the
course of his official duties or in connection with any operation being
regulated by, or any transaction which may be affected by the functions of
his office
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l. Disloyalty to the Republic of the Philippines and the Filipino people

2. Suspension from 6 months and 1 day to 1 year for the first offense, and
dismissal for the second offense
a. Oppression
b. Disgraceful and immoral conduct
c. Inefficiency and incompetence in the performance of official duties
d. Frequent, unauthorized absences and tardiness in reporting for duty, loafing
or frequent unauthorized absences from duty during regular office hours
e. Refusal to perform official duty
f. Gross insubordination
g. Conduct grossly prejudicial to the best interest of service
h. Owning, controlling, managing or accepting employment as officer,
employee, consultant, counsel, broker, agent, trustee, or nominee in any
private enterprise regulated, supervised, or licensed by his office
i. Engaging in the private practice of profession, unless authorized by the
Constitution
j. Disclosing or misusing confidential or classified information officially know
to him by reason of his office and not made available to the public
k. Obtaining or using any statement filed under the Code of Conduct and
Ethical Standards for Public Officials and Employees for any purpose
contrary to morals or public policy

c. Penalties for Less Grave Offenses


1. Suspension from 1 month and 1 day to 6 months for the first offense, and
dismissal for the second offense
a. Simple neglect of duty
b. Simple misconduct
c. Gross discourtesy in the course of official duties
d. Gross violation of existing Civil Service Law and rules of a serious nature
e. Insubordination
f. Habitual drunkenness
g. Nepotism
h. Recommending any person to a position ina private enterprise which has a
regular or pending official transaction with his office, unless mandated by
law or international agreements
i. Unfair discrimination in rendering public service due to party affiliation or
preference
j. Failure to file Sworn Statements of Assets and Liabilities
k. Failure to resign from position in a private enterpreise within 30 days from
assumption of public office or failure to divest himself of his shareholdings
or interest in private enterprise within 60 days from the assumption of public
office

d. Penalties for Light Offenses


1. Reprimand for the first offense, suspension of 1 day to 30 days for the second
offense, and dismissal for the third offense
a. Neglect of duty
b. Discourtesy in the official course of duty
c. Improper or unauthorized solicitation from subordinate employee or by
teachers and school officials from school children
d. Violation of office rules and regulations
e. Gambling prohibited by law
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f. Refusal to tender overtime service
g. Disgraceful, immoral, dishonest conduct prior to acquisition of office
h. Borrowing money by superiror officres from subordinates or lending money
by subordinates to superior officers
i. Lending money at usurious interest
j. Willful failure to pay just debts or taxes
k. Pursuit of a private business, vocation or profession without permission
required by the Civil Service rules
l. Lobbying for personal interest or gain in legislative halls and offices without
authority
m. Promoting sale of ticket in behalf of private enterprises not intended for
charity or public welfare
n. Failure to act promptly on letters and requests within 15 days
o. Failure to process documents and complete action on documents within
reasonable time
p. Failure to attend to anyone who wants to avail himself of the services of the
office or act promptly in public transactions

e. Imposition and determination of penalties


1. For offenses under Presidential Decree no. 808, forced resignation instead of
dismissal, transfer, demotion, or fine may be imposed instead of suspension for
1 month and 1 day to 1 year, and fine instead of suspension from 1 day to 1
month.

2. For offenses under Republic Act No. 6713, only one penalty shall be imposed
for each case.

3. In the determination of penalties to be imposed, mitigating and aggravating


circumstances may be considered. If respondent is found guilty for 2 or more
charges or counts, the penalty imposed should be that corresponding to the
most serious charge. The rest may be considered aggravating. The second or
third offenses committed need not be the same offense.

f. Accessory penalties
1. Dismissal shall carry with it that of cancellation of eligibility, forfeiture of leave
credits and retirement benefits and disqualification for re-employment in
government service.

2. Forced resignation shall carry with it forfeiture of leave credits and retirement
benefits and disqualification for employment in the government for a period of 1
year.

3. The fact that a public officer or employee has already been administratively
penalized is not a bar to his conviction under general penal laws.

g. Removal of administrative penalties or disabilities


1. In meritorious cases and upon recommendation of the Civil Service
Commission, the President may commute or remove administrative penalties or
disabilities imposed upon officers or employees in disciplinary cases, subject to
such terms and conditions as he may impose in the interest of service.

29. The Sandiganbayan

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a. The Sandiganbayan was created by Presidential Decree No. 1606, as amended by
Republic Act No. 7975 and 8249.

b. Cases subject to its jurisdiction


1. Violations of Republic Act No. 3019 and 1379;

2. Crimes committed by public officers and employees embraced in Title VIII of the
Revised Penal Code (e.g., bribery, malversation of public funds);

3. Other offenses or felonies (whether simple or complexed with other crimes)


committed by public officers and employees in relation to their office, where the
penalty prescribed by law is higher than prision correccional or imprisonment for
6 years, or a fine of P6,000.00; and

4. Civil and criminal cases filed pursuant to and in connection with Executive
Orders No. 1, 2, 14 and 14-a issued in 1986.

c. Officials and private individuals subject to its jurisdiction


1. Under paragraphs (a) and (b) of Presidential Decree No. 1606, the
Sandiganbayan shall exercise exclusive original jurisdiction over the cases
mentioned in (1), (2) and (3) above where one or more of the accused are
officials occupying the following positions in the government:

a. Officials of the executive branch occupying the position of regional director


or higher, otherwise classified as Grade 27 or higher

b. Provincial governors, vice-governors, members of the Sangguniang


Panlalawigan, provincial treasurers, assessors, engineers and other
provincial department heads

c. City mayors, vice-mayors, members of the Sangguniang Panlungsod, city


treasurer, assessors, engineers and other provincial department heads

d. Officials of the diplomatic service occupying the position of consul or higher

e. Philippine army and air force colonels, naval captains and all officers of
higher rank

f. Officers of the Philippine National Police while occupying the position of


provincial director and those holding the rank of senior superintendent or
higher

g. City and provincial prosecutors in the office of the Ombudsman and special
prosecutor

h. Presidents, directors or trustees or managers of government-owned or


controlled corporations, state universities or educational institutions or
foundations

i. Members of Congress and officials thereof classified as Grade 27 or


higher

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j. Members of the judiciary without prejudice to the provisions of the
Constitution

k. Chairmen and members of the Constitutional Commissions without


prejudice to the provisions of the Constitution

l. All other national and local officials classified as Grade 27 or higher

m. Private individuals charged as co-principals, accomplices or accessories


with the public officers or employees

a. Jurisdiction of ordinary courts


1. Ordinary courts have jurisdiction in cases:
a. Where none of the accused is occupying positions of Grade 27 or higher,
or military or Philippine National Police officers.

b. When there is no allegation that the offense charges was connected with the
discharge of the duties or functions of a public officer (i.e., there must be a
direct relation between the crime and the office, and the offense cannot
exist without the office)

2. The Sandiganbayan has exclusive appellate jurisdiction over final judgments,


resolutions or orders of the Regional Trial Courts whether in the exercise of their
original or appellate jurisdiction.

Zaldivar vs. Sandiganbayan, 160 SCRA 843

Effective February 2, 1987 or upon the ratification of the 1987 Philippine Constitution, the Special
Prosecutor became a mere subordinate of the Ombudsman. The former can investigate and
prosecute cases only if instructed to do so by the latter. The Special Prosecutor has no authority to
conduct preliminary investigations and to direct the filing of criminal cases except upon orders of the
Ombudsman.

Macalino vs. Sandiganbayan (376 SCRA 452)

Under the Anti-Graft Law, "a public officer includes elective and appointive officials and employees,
permanent or temporary, whether in the unclassified or classified or exempted service receiving
compensation, even nominal, from the government."

Petitioner, an Assistant Manager of the Treasury Division and Head of the Loans Section of the
Philippine National Construction Corporation (PNCC), is not a public officer within the purview of the
Anti-Graft Law. PNCC has no original charter and was incorporated under the general law on
corporations. Hence, the Sandiganbayan has no jurisdiction over him. The only instance where a
private individual may be charged before the Sandiganbayan is when he/she is indicted as a co-
principal, accomplice or accessory of a public officer with a crime cognizable by the Sandiganbayan.

Lacson vs. Executive Secretary, et. al. (301 SCRA 298 (1999])
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Section 4 [of R.A. No. 8249] requires that the offense charged must be committed by the offender in
relation to his office in order for the Sandiganbayan to have jurisdiction over it. This jurisdictional
requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which mandated
that the Sandiganbayan shall have jurisdiction over criminal cases committed by the public officers
and employees, including those in government-owned or controlled corporations, "in relation to their
office as may be determined by law." This constitutional mandate was reiterated in the new (1987)
Constitution when it declared in Section 4 thereof that the Sandiganbayan shall continue to function
and exercise its jurisdiction as now or hereafter may be provided by law.

We held that an offense is said to have been committed in relation to the office if it (the offense is
"intimately connected" with the office of the offender and perpetrated while he was in the
performance of his official functions. This intimate relation between the offense charged and the
discharge of his official duties "must be alleged in the information."

Crisostomo vs. Sandiganbayan (G.R. No. 152398, April 14, 2005)

In Sanchez v. Demetriou, the court ruled that the public office must be a constituent element of the
crime as defined in the statute before the Sandiganbayan could acquire jurisdiction over a case.
Indeed, murder and homicide will never be the main function of any public office. No public office
will ever be a constituent element of murder. When then would murder or homicide, committed by a
public officer, fall within the exclusive and original jurisdiction of the Sandiganbayan? People v.
Montejo provides the answer. The Court explained that a public officer commits an offense in
relation to his office if he perpetrates the offense while performing, though in improper or irregular
manner, his official functions and he cannot commit the offense without holding his public office. In
such a case, there is an intimate connection between the offense and the office of the accused. If
the information alleges the close connection between the offense charged and the office of the
accused, the case falls within the jurisdiction of the Sandiganbayan. People v. Montejo is an
exception that Sanchez v. Demetriou recognized.

The information accused Crisostomo of murdering a detention prisoner, a crime that collides directly
with Crisostomo's office as a jail guard who has the duty to insure the safe custody of the prisoner.
Crisostomo's purported act of killing a detention prisoner, while irregular and contrary to
Crisostomo's duties, was committed while he was performing his official functions.

Esteban vs. Sandiganbayan, et. al. (G.R. Nos.146646-49, March 11, 2005)

An offense is said to have been committed in relation to the office if the offense is "intimately
connected" with the office of the offender and perpetrated while he was in the performance of his
official functions. This intimate relation between the offense charged and the discharge of the
official duties must be alleged in the information. This is in accordance with the rule that the factor
that characterizes the charge is the actual recital of the facts in the complaint or information. Hence,
where the information is wanting in specific factual averments to show the intimate
relationship/connection between the offense charged and the discharge of official functions, the
Sandiganbayan has no jurisdiction over the case.

Petitioner, as Presiding Judge of MTCC, Branch 1, Cabanatuan City, is vested with the power to
recommend the appointment of Ana May Simbajon as bookbinder. As alleged in the Amended
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Informations, she was constrained to approach petitioner as she needed his recommendation. But
he imposed a condition before extending such recommendation - she should be his girlfriend and
must report daily to his office for a kiss. There can be no doubt, therefore, that petitioner used his
official position in committing the acts complained of. While it is true, as petitioner argues, that
public office is not an element of the crime of acts of lasciviousness, nonetheless, he could not have
committed the crimes were it not for the fact that as the Presiding Judge, he has the authority to
recommend her appointment as bookbinder. In other words, the crimes allegedly committed are
intimately connected with his office.

People vs. Sandiganbayan, et. al. (G.R. Nos. 147706-07, February 16, 2005)

It is not disputed that the Sandiganbayan has jurisdiction over presidents, directors or trustees, or
managers of government-owned or controlled corporations with original charters whenever charges
of graft and corruption are involved. However, a question arises whether the Sandiganbayan has
jurisdiction over the same officers in government-owned or controlled corporations organized and
incorporated under the Corporation Code.

The legislature, in mandating the inclusion of "presidents, directors or trustees, or managers of


government-owned or controlled corporations" within the jurisdiction of the Sandiganbayan, has
consistently refrained from making any distinction with respect to the manner of their creation. The
deliberate omission clearly reveals the intention of the legislature to include the presidents, directors
or trustees, or managers of both types of corporations within the jurisdiction of the Sandiganbayan
whenever they are involved in graft and corruption. Had it been otherwise, it could have simply
made the necessary distinction. But it did not. It is a basic principle of statutory construction that
when the law does not distinguish, we should not distinguish. Ubi lex non distinguit nec nos
distinguere debemos. Corollarily, Article XI Section 12 of the 1987 Constitution, on the jurisdiction of
the Ombudsman (the government's prosecutory arm against persons charged with graft and
corruption), includes officers and employees of the government-owned or controlled corporations,
likewise without any distinction.

30. The Ombudsman


a. Powers, functions and duties of the Ombudsman
1. Investigate on its own, or on complaint by any person, any act or omission of
any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient;

2. Direct any such official, etc. to perform or expedite any act or duty required by
law, or to stop, prevent and correct any abuse or impropriety in the performance
of duties;

3. Direct the officer concerned to take appropriate action against a public official or
employee at fault and recommend his removal, suspension, demotion, fine,
censure or prosecution, and endure compliance therewith; and

4. Determine the causes of inefficiency, red tape, mismanagement, fraud and


corruption in the government.

b. Officials subject to the disciplinary authority of the Ombudsman


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1. The Ombudsman has disciplinary authority over all elective and appointive
officials including members of the cabinet, local government units, government-
owned or controlled corporations and its subsidiaries

2. Exceptions:
a. Officials removable by impeachment
b. Members of Congress
c. Members of the Judiciary

3. The Office of the Ombudsman is the only body authorized to investigate even
officials removable by impeachment.

Ombudsman vs. Galicia (G.R. No. 167711, October 10, 2008)

The clause "illegal act or omission of any public official" encompasses any crime committed by a
public official or employee. Its reach is so vast that there is no requirement that the act or omission
be related to or be connected with the performance of official duty.

This power of investigation granted to the Ombudsman ... and the Ombudsman Act is not exclusive
but is shared with other similarly authorized government agencies, such as the PCGG and judges of
municipal trial courts and municipal circuit trial courts. [As regards public school teachers], by virtue
of the Magna Carta for Public School Teachers, original jurisdiction belongs to the school
superintendent. The intention of the law, which is to impose a separate standard and procedural
requirement for administrative cases involving public school teachers, must be given consideration.
Hence, the Ombudsman must yield to this committee of the Division School Superintendent.

In the exercise of his duties, the Ombudsman is given full administrative disciplinary authority. His
power is not limited merely to receiving, processing complaints, or recommending penalties. He is
to conduct investigations, hold hearings, summon witnesses, and require production of evidence
and place respondents under preventive suspension. This includes the power to impose the penalty
of removal, suspension, demotion, fine, or censure of a public officer or employee.

Ledesma vs. Court of Appeals (465 SCRA 437, 449 [2005])

That the refusal, without just cause, of any officer to comply with such an order of the Ombudsman
to penalize an erring officer or employee is a ground for disciplinary action, is a strong indication that
the Ombudsman's "recommendation" is not merely advisory in nature but is actually mandatory
within the bounds of law. This should not be interpreted as usurpation by the Ombudsman of the
authority of the head of office or any officer concerned. By stating therefore that the Ombudsman
"recommends" the action to be taken against an erring officer or employee, the provisions in the
Constitution and in R.A. No. 6770 intended that the implementation of the order be coursed through
the proper officer.

It is likewise apparent that under R.A. No. 6770, the lawmakers intended to provide the Office of the
Ombudsman with sufficient muscle to ensure that it can effectively carry out its mandate as
protector of the people against inept and corrupt government officers and employees. The Office
was granted the power to punish for contempt in accordance with the Rules of Court. It was given
the disciplinary authority over all elective and appointive officials of the government and its
subdivisions, instrumentalities, and agencies (with the exception only of impeachable officers,
members of Congress and the Judiciary). Also, it can preventively suspend any officer under its

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authority pending an investigation when the case so warrants.

Office of the Ombudsman vs. Beltran (G.R. No. 168039, June 5, 2009)

The provision in R.A. 6770 taken together reveal the manifest intent of the lawmakers to bestow on
the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the
entire gamut of administrative adjudication which entails the authority to, inter alia, receive
complaints, conduct investigations, hold hearings in accordance with the rules of procedure,
summon witnesses and require the production of documents, place under preventive suspension
public officers and employees pending an investigation, determine the appropriate penalty
imposable on erring public officers or employees as warranted by the evidence, and, necessarily,
impose the said penalty.

Hence, the full administrative disciplinary authority of the Office of the Ombudsman, including the
power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a
public officer or employee found to be at fault, is beyond contestation.

Ombudsman vs. Court of Appeals, et. al. (G.R. 167844, November 2, 2006)

In our recent ruling in Office of the Ombudsman v. Court of Appeals, we reiterated Ledesma and
expounded that taken together, the relevant provisions of R.A. No. 6770 vested petitioner with "full
administrative disciplinary authority" including the power to "determine the appropriate penalty
imposable on erring public officers or employees as warranted by evidence, and, necessarily,
impose the said penalty.

We see no reason to deviate from these rulings. They are consistent with our earlier observation that
unlike the "classical Ombudsman model" whose function is merely to "receive and process the
people's complaints against corrupt and abusive government personnel," the Philippine
Ombudsman - as protector of the people, is armed with the power to prosecute erring public officers
and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt
practices and such other offenses that may be committed by such officers and employees. The
legislature has vested him with broad powers to enable him to implement his own actions.

Ombudsman, et al vs. Valera, et al. (G.R. No. 164250, September 30, 2005)

The power to investigate and to prosecute granted by law to the Ombudsman is plenary and
unqualified. It pertains to any act or omission of any public officer or employee when such an act or
omission appears to be illegal, unjust, improper, or inefficient... On the other hand, ...the Office of the
Special Prosecutor is merely a component of the Office of the Ombudsman and may act only under
the supervision and control and upon the authority of the Ombudsman. ... Supervision means
overseeing or the power or authority of an officer to see that subordinate officers perform their
duties. Control means the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of the
former for that of the latter.

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The Ombudsman, pursuant to his power of supervision and control over the Special Prosecutor,
may authorize the latter to conduct administrative investigation. While R.A. No. 670 accords the
Special Prosecutor the same rank as that of the Deputy Ombudsman, Section 24 thereof expressly
grants only to the Ombudsman and the Deputy Ombudsmen the power to place under preventive
suspension government officials and employees under their authority pending an administrative
investigation. However, if the Ombudsman delegates his authority to conduct administrative
investigation to the Special Prosecutor and the latter finds that the preventive suspension of the
public official or employee subject thereof is warranted, the Special Prosecutor may recommend to
the Ombudsman to place the said public officer or employee under preventive suspension.

Gonzales III vs. Office of the President (G.R. No. 196231, 28 January 2014)

Under the present Constitution, there is every reason to treat the Special Prosecutor to be at par
with the Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is
concerned, and must also enjoy the same grant of independence under the Constitution.

Carabeo vs. Court of Appeals (G.R. No. 178000 and 178003, December 4, 2009)

Settled is the rule that prior notice and hearing are not required in the issuance of a preventive
suspension order, such suspension not being a penalty but only a preventive measure - a
preliminary step in an administrative investigation. If after such investigation, the charges are
established and the person investigated is found guilty of acts warranting his removal, then he is
removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspecting an
officer pending his investigation and before the charges against him are heard and be given an
opportunity to prove his innocence. There is nothing in the law, especially Section 24 or R.A. No.
6770 or The Ombudsman Act of 1989, which requires that notice and hearing precede the
preventive suspension of an erring public official. Also, while a preventive suspension order may
originate from a complaint, the Ombudsman is not required to furnish the respondent with a copy of
the complaint prior to ordering a preventive suspension.

Under Section 24 of RA 6770, two requisites must concur to render the preventive suspension order
valid. First, there must be a prior determination by the Ombudsman that the evidence of
respondent's guilt is strong. Second, (a) the offense charged must involve dishonesty, oppression,
grave misconduct, or neglect in the performance of duty; (b) the charges would warrant removal
from the service; or (c) the respondent's continued stay in office may prejudice the case filed against
him.

Espinosa, et al. vs. Office of the Ombudsman (343 SCRA 744 [2000])

The Office of the Ombudsman has the sole power to "investigate and prosecute on its own or on
complaint by any person, any act or omission of any public officer or employee , office, or agency,
when such act or omission appears to be illegal, unjust, improper, or inefficient." The Court has
refused to interfere with the Office of the Ombudsman in disapproving the findings of its special
prosecutors, promulgating its own rules of procedure, summarily dismissing complaints without
going through preliminary investigation, issuing orders without giving parties a prior oral hearing, and
even dismissing criminal cases filed against "a series of nine City Prosecutors who tossed the

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responsibility of conducting a preliminary investigation to each other with contradictory
recommendations, 'ping-pong' style," among others.

The Court will likewise refuse to interfere in the instant case. The power to withdraw the information
already filed is a mere adjunct or consequence of the Ombudman's overall power to prosecute. It is
subject of course, to the approval of the Sandiganbayan. As with any other criminal case, once the
same has been filed with the court, it is that court, and no longer the prosecution, which has full
control of the case so much so that the information may not be dismissed without the approval of
that court.

Khan, Jr. vs. Ombudsman e. al, (G.R. No. 125296, July 20, 2006)

Based on [Article Xi, Section13 (2) of the 1987 Constitution, the Office of the Ombudsman exercises
jurisdiction over public officials/employees of GOCCs with original charters. This being so, it can
only investigate and prosecute acts or omissions of the officials/employees of government
corporations. Therefore, although the government later on acquired the controlling interest in PAL,
the fact remains that the latter, did not have an "original charter" and its officers/employees could
not be investigated and/or prosecuted by the Ombudsman.

In Juco v. National Labor Relations Commission, we ruled that the phrase "with original charter"
means "chartered by special law as distinguished from corporations organized under the
Corporation Code." PAL, being originally a private corporation seeded by private capital and
created under the general corporation law, does not fall within the jurisdictional powers of the
Ombudsman under Article XI, Section 13(2) of the Constitution. Consequently, the latter is devoid of
authority to investigate or prosecute petitioners.

31. By impeachment
a. Impeachable officials
1. Officers removable by impeachment:
a. President
b. Vice-president
c. Members of the Supreme Court
d. Members of the Constitutional Commissions
e. Ombudsman

b. Offenses covered:
1. Culpable violation of the Constitution
2. Treason
3. Bribery
4. Graft and corruption
5. Other high crimes
6. Betrayal of public trust

c. Power to initiate and to try impeachment cases


1. The House or Representatives has the sole power to initiate all cases of
impeachment while the Senate sits as a court for the trial of impeachment
cases.

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Francisco vs. House of Representatives (415 SCRA 44)

Section 3(5), Article XI 0f the 1987 Constitution states that, "no impeachment proceedings shall be
initiated against the same official more than one within a period of one year." "The term "to initiate'
refers to the filing of the impeachment complaint coupled with Congress' taking initial action of the
said complaint. Since Sections 16 and 17 of Rule V of the House of Impeachment Rules provide for
a different meaning to the word "to initiate," the said provisions are unconstitutional. The fact that
under Section 3(8), Article XI, the Congress is given the power to promulgate its own rules on
impeachment does not give the House an absolute rule making power. Such power is limited by the
phrase "to effectively carry out the purpose of this section."

The question of whether or not the second impeachment complaint filed against Chief Justice
Davide, three months after the first complaint, is subject to judicial review. The reliance of the
respondents to US v. Nixon is unavailing. There are two major differences between the U.S. and the
Philippine Constitution. "First, the power of judicial review is impliedly granted to the U.S. Supreme
Court and is discretionary in nature while under the Philippine Constitution, the same is not only a
power but a duty under the court's expanded jurisdiction. Second, the U.S. Constitution did not
provide any limitations in thepower of the members of the House of Representatives in initiating
impeachment cases filing, required vote to impeach and the one year ban rule."

2. Penalties for impeachment:


a. Removal from office
b. Disqualification to hold any office under the Republic of the Philippines
c. Subjection and liability for criminal prosecution, trial and punishment

2. Meaning and purpose of impeachment


a. Definition: It is a method of national inquest into the conduct of public men.

b. Purpose: its purpose is to protect the people from official delinquencies or


malfeasances. It is primarily intended for the protection of the State and not for the
punishment of the offender. The penalties are incidental to the protection of the
people.

Gutierrez vs. Committee on Justice (640 SCRA 198)

"impeachment is primarily for the protection of the people as a body politic, and not for the
punishment of the offender." The simultaneous referral of the two impeachment complaints against
petitioner to the House of Representatives Committee on Justice does not violate the one-year ban
rule.

"The filing of an impeachment complaint is like the lighting of a matchstick. Lighting the matchstick
alone, however, cannot light up the candle, unless the lighted matchstick reaches or torches the
candle wick. Referring the complaint to the proper committee ignites the impeachment proceeding.
With a simultaneous referral of multiple complaints filed, more than one lighted matchsticks light the
candle at the same time. What is important is that there should only be one candle that is kindled in
a year, such that once the candle starts burning, subsequent matchsticks can no longer rekindle the
candle."

Meanwhile, an impeachment complaint need not alleged only one impeachable offense. The 1987
Constitution allows indictment for multiple impeachment offenses provided that each charge must

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represent an article of impeachment.

3. By abolition of office
a. Authority with power to abolish
1. Congress may abolish any office it creates without infringing upon the rights of
the officer or employee concerned
2. The President pursuant to a valid delegation of power
3. Local governments when said power has been delegated to them
4. By the people themselves when they amend the Constitution

b. Abolition of office even during term of incumbent


1. The power to abolish may be exercised at any time and even while the office is
occupied by a duly elected or appointed incumbent.

2. There is no deprivation of the right of the incumbent because he has no


contractual or property interest in the office. acceptance of the office is with the
understanding that it may be abolished anytime.

3. Tenure of office is not affected by the constitutional prohibition against the


impairment of contracts. Security of tenure does not protect civil service
employees from abolition of the positions held by them in the absence of any
other provision expressly or impliedly prohibiting abolition thereof.

4. What constitutes abolition


a. To consider an office abolished, there must have been intention to do away with it
wholly and permanently. There is no abolition where the position is the same one
but bearing a different name.

5. Removal of office and termination by abolition of an office distinguished

Removal Abolition
There is an office with an occupant who would After abolition, there is no more occupant as
thereby lose his position. there is no more office.
The position subsists and the incumbent is The right to security of tenure does not exist in a
merely separated therefrom. non-existent office.

Manalang v. Quitoriano (94 Phil. 903 [1954])

The Placement Bureau was abolished by Congress and a National Employment Service (NES) was
created. The Act provides the transfer of qualified personnel from the abolished bureau to the
NES.

The President designated Quitoriano as the Acting Commissioner of the Service. Manalang, the
director of the Placement Bureau assailed such designation as illegal and equivalent to his removal
from office without just cause.

The Court ruled that the abolition of the Placement Bureau did not constitute the removal of
Manalang without just cause. Removal implies that an office exists after the ouster. This does not
apply in this case because the office of the director ceased to exist upon the abolition of the entire
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bureau.

Right to office is extinguished by its abolition. Manalangs right to the office of the director of the
bureau was necessarily extinguished by the abolition of the bureau. The constitutional mandate to
the effect that no officer or employee in the Civil Service shall be removed or suspended except for
cause as provided by law is not in point for there has been neither a removal nor a suspension, but
an abolition of Manalangs former office which is within the power of Congress to undertake.

Qualified personnel were transferred to a new office. A transfer connotes that the NES is different
and distinct from the Placement Bureau. Congress would have directed the retention of the
qualified personnel if the NES were a mere enlargement of the Placement Bureau.

In common parlance, the word personnel is used generally to refer to the subordinate officials or
clerical employees of an office or enterprise, not to the managers, directors or heads thereof.

6. Abolition must not constitute removal without cause


a. Right to public office not absolute
1. Except constitutional offices which provide for special immunity as regards
salary and tenure, no one can be said to have any vested right in an office or its
salary. (National Land Titles and Deeds Registration Administration v. Civil
Service Commission, 221 SCRA 145 (1993))

b. Where abolition done in bad faith


1. If the abolition is void because it was done in bad faith, the incumbent is
deemed never to have ceased to hold office.

c. Requisites for valid abolition


1. Good faith
2. Not for personal or political reasons or in order to circumvent the incumbents
security of tenure
3. Not implemented in violation of laws

d. Instances of valid abolition


1. For reason of economy, where the functions of the abolished position of
Municipal Clerk were light and simple and could readily be absorbed by the
other existing offices, and no one was appointed in his place, nor was a new
position created; (Arao v. Luspo, 20 SCRA 702 (1967))

2. Where the position of assistant provincial assessor was abolished because of a


huge deficit and the duties of the position which could be dispensed with were
performed by others; (Llanto v. Dimaporo, Jr., 16 SCRA 599 (1966))

3. Where the functions of the old office were taken over by the new office created
to replace it, which new office also took over the functions of other offices that
had been likewise absorbed by it. (Manalang v. Quitoriano, 94 Phil. 903 (1954))

7. Termination through reorganization


a. Reorganization occurs when there is an alteration of the existing structure of
government offices or units therein, including lines of control, authority, and
responsibility between them to promote greater efficiency, remove redundancy of

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functions, effect economy, make it more responsive to the needs of the clientele. It
may result in the loss of position through removal or abolition of the office.

b. Based on a valid purpose and done in good faith


1. Reorganization may be done by law independently of specific constitutional
authorization but it must be based on a valid purpose and done in good faith.
2. There is no violation of the civil servants right to security of tenure if the agency
where she works exercises the essential prerogative to change the work
assignment or to transfer the civil servant to an assignment where she would be
most useful and effective. There is no violation of the right to security of tenure if
it is pursuant to a valid reorganization (Manalang-Demigillo v. Trade and
Investment Development Corp. of the Philippines, G.R. No. 168613, 5 March
2013).

c. Instances of invalid reorganization


1. Where the abolished office and the offices created in its place have similar
functions, the abolition lacks good faith.

Briones v. Osmea, Jr. (104 Phil. 108 [1954])

The Municipal Board approved an ordinance abolishing 15 positions in the City Mayors office and
17 positions in the Office of the Municipal Board, including those occupied by Briones.

The abolition of the positions was invalid for having been made without the approval of the
Department Head as required by Executive Order No. 56. The grounds of economy and efficiency
on which the Municipal Board relied for abolishing the positions were false, such that the abolition
was a subterfuge for the removal of the incumbents without cause. The creation of 35 new positions
belied the reasons for the abolition and was done in violation of civil service laws in pursuit of
personal or political reasons.

8. By conviction of a crime
a. When the conviction of a crime carried with it the penalties of temporary or
perpetual absolute / special disqualification, termination of official relations results
because one of the effects of the imposition of said penalties under Articles 30 and
31 of the Revised Penal Code is the deprivation of public office or employment
which the offender may have held.

b. This applies even if the position was conferred by popular election.

c. It necessarily vacates the office held by the offender. Conversely, reinstatement


should follow acquittal.

People v. Consigna (14 SCRA 962 [1965])

Consigna, a property clerk, was acquitted of the crime of malversation of government property. The
fiscal moved for a reconsideration of the portion of the decision ordering petitioners reinstatement
and the payment of his salary during his suspension. The fiscal invoked the Civil Service
Commissions decision on the administrative case filed against Consigna which found him guilty of

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gross negligence and ordered his removal from office.

Finding the motion partly well-taken, the court eliminated the part of its decision which directed of
the payment of salary during the period of his suspension, but left undisturbed the part which
ordered the petitioners reinstatement.

The trial court, besides acquitting Consigna for absolute lack of evidence, had the authority to order
his reinstatement. The decision of the Civil Service Commission is not binding upon the courts.
Where the accused was acquitted of the crime of malversation, reinstatement should follow. Had
Consigna been convicted, he would have been denied the right to reinstatement. Conversely,
reinstatement should follow acquittal.

Daleon case (cited in the Consigna case)

The courts powers extend only to the finding of guilt or innocence of the accused and not the
payment of back salaries and reinstatement because his right to the same was not involved in the
case. In a criminal action for malversation, where the accused is acquitted, the trial court is without
the power to order the payment of his salary during the period of his suspension. The reason is that
the only issue joined by the plea of not guilty is whether or not the accused committed the crime
charged in the information. In such a case, the only judgment that the court is legally authorized to
render is either one of acquittal or of conviction with the indemnity to the injured party and the
accessory penalties provided for by law.

While an accused acquitted of malversation may claim payment of back salaries during the period of
his suspension and reinstatement, his relief lies not in the same criminal case wherein he is
acquitted, but the proper administrative or civil action prescribed by law.

9. What constitutes conviction


a. The term conviction appearing in constitutional or statutory provisions providing
for the removal or disqualification from public office of an officer who has been
convicted, means conviction in a trial court. It contemplates a finding of guilt
beyond reasonable doubt followed by a judgment upholding and implementing such
finding.

b. A plea of guilty accepted by the court, together with a sentence amounts to


conviction calling for removal of the officer or the discharge of the public employee.

c. Since civil, administrative and criminal cases against a public officer are separate,
distinct, and can prosper independently from each other, lack or absence of proof
beyond reasonable doubt in a criminal case does not mean the absence of other
evidence which may be deemed adequate in civil cases (preponderance of
evidence) or administrative proceedings (substantial evidence).

10. Effects of pardon


a. Pardon granted after conviction frees the individual from all the penalties and / or
legal disabilities and restores him to all his civil rights but does not restore the right
to public office, unless:
1. Expressly restored by the pardon;
2. Pardon is grounded on the persons innocence.

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b. Pardon does not ipso facto restore a convicted felon to public office necessarily
relinquished or forfeited by reason of the conviction although such pardon restores
his eligibility to appointment for the same office. It merely removes the
disqualification from holding public employment.

c. The person pardoned may apply for reappointment to the office which was forfeited
by reason of his conviction and undergo the usual procedure required for a new
appointment.

d. Pardon does not extinguish the civil liability of the grantee arising from the crime of
which he has been convicted.

11. By recall
a. It is the procedure by which an elective official may be removed at any time during
his term by the vote of the people at an election called for such purpose or at a
general election.

12. Purpose and nature of the power of recall


a. Effective speedy remedy for removal
1. The purpose of recall is to provide an effective and speedy remedy for the
removal of an official who is not giving satisfactory service to the public and
whom the electors do not want to remain in office, regardless of whether he is
discharging his full duty to the best of his ability and as his conscience dictates.

b. Political nature involving exercise of judicial functions


1. The power granted to electors to remove officers is political in nature and not
the exercise of a judicial function.

c. Essentially the power of removal exercised by the people themselves


1. Since the source of the power in a republic is the people, therefore, they have
the power to remove their officials.

13. Recall of local elective officials


a. By whom exercised
1. The power to recall for loss of confidence shall be exercised by the registered
voters of a local government unit to which the local elective official subject to
such recall belongs.

b. Initiation of the recall process


1. Recall may be initiated by a preparatory recall assembly or by 25% of the
registered voters of the local government unit to which the local elective official
subject of the recall belongs.

2. There shall be a preparatory recall assembly in every province, city, district, and
municipality which shall be composed of the following:
a. Provincial level all mayors, vice-mayors and sanggunian members of the
municipalities and component cities
b. City level all youth barangay and sangguniang barangay members in the
city
c. Legislative district level in cases where the sangguniang panlalawigan
members are elected by district, all elective municipal officials in the district;
and in cases where sangguniang panlungsod members are elected by the
district, all elective barangay officials in the district
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d. Municipal level all punong barangay and sangguniang barangay members
in the municipality

3. A majority of the preparatory recall assembly members may convene in session


in a public place and initiate a recall proceeding against any elective official in
the local government unit concerned. Recall of provincial, city or municipal
officials must be initiated through a resolution adopted by a majority of all
preparatory recall assembly members in a session called for that purpose.

4. 25% of the total number of registered voters in the local government unit
concerned may petition for the initiation of the recall.
a. A written petition for recall must be duly signed before the election registrar
or his representative, in a public place
1. in the presence of the petitioner / representative
2. Representative of the official sought to be recalled
3. Filed before the COMELEC
4. COMELEC or its duly authorized representative shall cause publication of
the petition in a public and conspicuous place for not less than 10 days but
not more than 20 days for the purpose of verification

b. Upon the lapse of the period, COMELEC or its representative shall


announce the acceptance of candidates to the position and prepare the list
of candidates, including the name of the official sought to be recalled.

c. Election on recall
1. COMELEC shall set the date of the election after the filing of resolution or
petition not later than:
a. 30 days in the case of barangay, city or municipal officials
b. 45 days in the case of provincial officials

d. Effectivity of recall
1. The recall of an elective local official shall be effective only upon the election and
proclamation of a successor who garners the highest number of votes during
the election on recall. If the official sought to be recalled wins, he shall continue
in office.

e. Prohibition from resignation


1. The elective local official sought to be recalled shall not be allowed to resign
while the recall process is in progress.

f. Limitations on recall
1. Any elective local official may be the subject of a recall election only once during
his term of office for loss of confidence.

2. No recall shall be held within 1 year from the date of the officials assumption of
office or 1 year immediately preceding a regular local election.

Claudio v. COMELEC (331 SCRA 388 [2000])

Claudio was the duly elected Mayor of Pasay City in the May 11, 1998 elections. He assumed office
on July 1, 1998.

During the second week of May 1999, the chairpersons of several barangays in Pasay City gathered
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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School
to discuss the possibility of filing a petition for recall against Mayor Claudio for loss of confidence.
On May 19, 1999, several barangay chairs formed an ad hoc committee for the purpose of covering
the Preparatory Recall Assembly (PRA).

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Reviewer!on!Law!on!Public!Officers!
Alberto!C.!Agra,!Ateneo!Law!School