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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y.

2015-2016

Ferdie: In this case, this guy wanted to peddle influence and he wanted to make
INTRODUCTORY CONCEPTS an impression that he can fix things for others inside the court. So it was his
reputation, he was notorious for that and it was a ground for his dismissal.
PUBLIC OFFICE
Conviction of criminal offenses is not even necessary for
NATURE OF A PUBLIC OFFICE removal

WHAT IS A PUBLIC OFFICE? San Luis v. CA


1987 Constitution, Article XI, Accountability of Public Officers Notoriety and habit are sufficient ground for removal pursuant to the
two fold test:
Section 1. Public office is a public trust. Public officers and employees
1. Whether it is generally known as universally believed to be true or
must at all times be accountable to the people, serve them with utmost
manifest to the world that the public officer committed the acts
responsibility, integrity, loyalty, and efficiency, act with patriotism and
imputed against him.
justice, and lead modest lives.
2. Whether he had contracted the habit for any of the enumerated
Ferdie: Public office is a public trust that already encapsulates the essence of misdemeanours.
public office. They have also highlighted some portions there it says at all times
Ferdie: Take note of notoriety and habit. If these concur, you can be removed
because later we will know that when you are disciplined as public officer or has
from public service even if there is no criminal conviction. It is a matter of
unrelated functions as public officer, you cannot say that this is a private matter
perception.
or this is a private act and it has nothing to do with my job or performance as a
public officer.
Purpose of discipline
That is not available as a remedy because it says at all times even when you step
out of the office after 5 oclock, you are still a public officer accountable to the Remolona v. CSC
people. Then we have with utmost responsibility, integrity, loyalty, and efficiency Dishonesty as ground for dismissal need not be committed in the
(RILE), act with patriotism and justice and lead a modest life. Lead a modest life; performance of duty.
in the context of the word means to live a simple and humble life.
Ferdie: Even in your private views that can be a ground; you cannot say it is
Public office is a public trust private there is nothing to do with your job, still go back to what the constitution
says at all times be accountable to the people. So even if you are sleeping at
Cornejo v. Gabriel night, you are still a public officer.
1. It is created in the interest and for the benefit of the public.
2. The officers are public servants. If a public officer or employee is dishonest or is guilty of oppression or
3. They are mere agents and not rulers of the people. grave misconduct, he or she may be dismissed.
4. As such, they have no contractual or proprietary right to an office.
Ferdie: Take note it qualifies misconduct as grave, if misconduct only, then
5. They merely hold it in trust for the people. probably suspension or reprimand but if it is grave misconduct then it can be a
Ferdie: Cornejo v. Gabriel is a classic case in so far as public officers are ground for dismissal.
concerned. Take note that it says there is no contractual or proprietary right to an
office. You do not own the office you occupy and it says you are merely holding it Even if said defects of character are not connected with his or her office,
in trust for the people or otherwise intended to be transient; power is and should they affect his or her right to continue in office. The purpose of discipline
be temporary. is not to punish, but to improve public service and preserve public
confidence in government.
"At all times be accountable to the people
Social Justice Society v. DDB But a resigned public officer cannot be subject to discipline
Facts: Random drug test on private and public employees was because it does not serve its purpose
challenged as unconstitutional because it violates the right of privacy. Ombudsman v. Andutan
It is error to interpret CSC MC No. 38 that administrative case may be
Held: For private employees, their right to privacy is inferior to the right filed against a resigned public officer for as long as the act complained
of the employer to maintain discipline and efficiency in the work place. of was committed in service. Otherwise, public officers who have long
If so, with more reason that civil servants cannot invoke the right to been separated from service may still be the subject of administrative
privacy because by constitutional command, they are required to be cases.
accountable at all times to the people and serve them with utmost Ferdie: This is to give peace of mind to the separated public officer.
responsibility and efficiency.
This defeats the purpose of discipline, which is not to punish, but to
Ferdie: This is about private employees in the private sector and if the ruling of improve public service and preserve public trust in government.
the SC says it cannot invoke the right to privacy vis-a-vis the power of the employer
to discipline, with more reason that in the government service you cannot invoke
Ferdie: First premise is you have administrative liability because you want to
the right to privacy. This case was joined/consolidated with Pimentel v. Comelec.
discipline, improve public and service, and also to bring back the public trust and
Basically, they are the same.
confidence in the government. So, if you are no longer with the government, that
purpose is no longer served unless the evidence of the case was filed and then
"Utmost responsibility, integrity, loyalty and efficiency" (RILE) after filing you resigned or retired, the case will still continue. Otherwise, you will
be allowed to pre-empt or terminate the proceedings at your own convenience.
Concerned Citizens of Laoag City v. Arzaga
Thus, an employee may be dismissed for being notoriously undesirable
even if it involves private and personal acts. "Lead modest lives
The point of the command is that, even if the public officer is
Ferdie: Take note here that we are talking about notoriety. Later we are going to independently wealthy, he should not live in a manner that flaunts his
discuss that it does not even require that for you to be dismissed on the basis of wealth. (Bernas)
notoriety, it has to be a criminal conviction. It is not necessary. Bottom line mere
perception can be a ground for dismissal provided it passes the two fold test. Ferdie: Dont show off. Independently wealthy means that the employees
wealth comes from sources outside the government. There are 2 reasons for
As a public servant, a court employee must exhibit the highest sense of corruption, it is either need or greed; ex. Napoles. What is in excess of what
you need is not yours. Atty. Gujilde.
honesty and integrity not only in the performance of his official duties
but also in his private dealings with other people to preserve the court's
name and standing.

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

Public office as defined by Mechem Ferdie: Take note of number 2, thats a controlling test. Take note also of number
A public office is the right, authority and duty created and conferred by 5 because in the Laurel case, this was used as a defense, i.e. the NCC was
law which for a given period, either fixed by law or enduring at the temporary in nature. SC still considered it as public office because he was
performing sovereign functions.
pleasure of the creating power, an individual is invested with sovereign
functions to be exercised by him for the benefit of the public.
CHARACTERISTICS OF A PUBLIC OFFICE
Ferdie: Theres no fixed term of office. It is either fixed by law or at the pleasure
of the appointing authority. Sovereign functions intended for public benefit.
CHARACTERISTICS OF A PUBLIC OFFICE:
Sovereign function or the performance of sovereign function is the controlling 1. Public office is a public trust
factor to decide whether or not one is a public officer which will be discussed later. 2. No one has a vested right to a public office
3. Public office is not a property
"Enduring at the pleasure of the creating power 4. Public office cannot be inherited
Fernandez v. Ledesma
If the term of office for which the chief of police was appointed is not Public office is a public trust
fixed pursuant to the city charter, it is dependent upon the discretion Cornejo v. Gabriel
or pleasure of the appointing power. 1. It is created in the interest and for the benefit of the public.
2. The officers are public servants.
Thus, the chief of police may be replaced and such replacement does 3. They are mere agents and not rulers of the people.
not amount to removal but expiration of his tenure. It is one of the 4. As such, they have no contractual or proprietary right to an office.
ordinary modes of terminating official relations. 5. They merely hold it in trust for the people.

Ferdie: This is an old case, before chief of police has no fixed term and is General rule: No one has a vested right to a public office.
dependent on the appointing power. Now, chief police has security of tenure. Point
of the case is that if one is appointed at the pleasure of the appointing authority, Carabeo v. CA
the term of office depends upon the liking of the person appointing. Example, if A public officer cannot claim injury if placed under preventive suspension
the appointing authority losses confidence on you, that is not termination, it is because he has no vested or absolute right to a public office.
expiration of the term of office.
Ferdie: Otherwise stated, if you are a public officer and you got preventively
"Sovereign functions to be exercised by him for the benefit of suspended you cannot say I suffered damages thus I am to be awarded with
the public" damagesyou cannot do that because there is no basis, the office you occupy is
not yours in the first place.
Laurel v. Desierto
Chairmanship of the National Centennial Commission to take charge of Cornejo v. Gabriel
the centennial celebrations. Suspension of a public officer without prior notice and hearing does not
violate due process because he has no proprietary or contractual right
Ferdie: In this case, there were charges of corruption against Laurel. His defense to it.
there was the NCC is temporary in nature and he is not a public officer. The SC
said Laurel is still a public officer because he was tasked to perform sovereign Fernandez v. Sto. Tomas
functions and that it was for the benefit of the public.
More so if the appointment does not specify the station, the employee
may be re- assigned if exigency requires, provided it does not reduce
Javier v. Sandiganbayan
rank, status or salary.
Appointment as private sector representative to the National Book
Development Board which is aimed to promote continuing development Ferdie: For us election officers, for example my designation appointment is very
of the book publishing Industry. specific as election officer of Mandaue City. But some of us are election officers of
the Commission on Elections, in which case, regardless whether the appointment
Ferdie: Take note he was appointed as private sector representative but the SC specifies the station, we can be reshuffled, re-appointed or re-assigned
said that he is still a public officer because it is still for the benefit of the public somewhere else if the exigencies of public service require. One cannot say that he
and the book publishing industry. cannot be transferred because his item says that he has to be in Mandaue City.
This is not available as a defense because your station does not belong to you.
Serana v. Sandiganbayan
Appointment as student regent at the University of the Philippines Except: If the terms of the law that takes it away is unclear.
performing general administrative supervision & exercising corporate Segovia v. Noel
powers.
Facts: Segovia is appointed Justice of the Peace. But later, a law was
Ferdie: She became University Student Council of UP and she had a seat in the passed that justices shall be appointed to serve until they reach 65 only.
Board of Regents and she can vote and participate in the deliberation. Her defense When he reached 65, Noel replaced him.
was she cannot be a public officer because she is a mere student; she pays the
tuition and did not receive salary from BoR. SC said she was vested with sovereign Held: The law must be applied prospectively only. Even if he has no
functions and is a public officer for purposes of the Sandiganbayan acquiring vested right to the office, he has some right that cannot be taken away
jurisdiction over her person.
by law which terms are unclear.
ELEMENTS OF A PUBLIC OFFICE
General rule: Public office is not a property.
State v. Hawkins
Abeja v. Tafiada
1. It must be created by law or an ordinance authorized by law. Facts: During pendency of an election protest, the protestee died. He
2. It must be invested with some sovereign functions of government was substituted by his widow to pursue his counterclaim for damages.
to be exercised for public interest
Held: The substitution is not proper. Public office is personal to the
3. The functions must be defined, expressly or impliedly by law
incumbent and is not a property which passes to his heirs.
4. The function must be exercised directly by an officer directly
under the control of the law Ferdie: This should not be confused with the election law that allows substitution
5. It must have some permanency or continuity, not temporary or of candidates. Candidates are not yet public officers. Also, the case was in the
occasional. pursuit of counterclaim for damages. This cannot be done because public office is
not a property.

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

Cornejo v. Gabriel Ferdie:


Facts: A municipal president was suspended by the governor while his 1) Officer, as distinguished from clerk or inferior employee, performs
administrative case for misconduct was pending without opportunity to discretionary acts (you can decide either way and would still be right)
2) You are a public officer as long as you perform sovereign functions
be heard.
Employee
Held: Prior notice and hearing is not a requisite to suspension because
When used with reference to a person in the public service, includes any
the holder has no proprietary and contractual interest on a public office.
person in the service of the government or any of its agencies, divisions,
subdivisions or instrumentalities.
Except: When the issue is which of the two persons is entitled
to the public office. Ferdie: Contractual employees or casual employees dont have employee-
employer relationship with the government even if they receive compensation.
Segovia v. Noel
In which case, a public office may be considered property within the ARTICLE 203, REVISED PENAL CODE
protection of the due process clause. That if one is deprived of title to Public officer
the office, it should be properly litigated before the courts. Any person who, by direct provision of law, popular election or
appointment by competent authority, takes part in the performance of
Public office cannot be inherited public functions in the Government of the Philippines, or performs in
said Government or any of its branches public duties as an employee,
Abeja v. Tafiada agent or subordinate official, of any rank or class. "
Facts: During pendency of an election protest, the protestee died. He
was substituted by his widow to pursue his counterclaim for damages. Ferdie: Regardless of the position even if probably you are a utility, for so long as
you were considered as public officer (regardless of status and rank).
Held: Substitution is not proper. Public office is personal to the holder
and is not a property that can be inherited by his heirs. ELEMENTS OF A PUBLIC OFFICER

PUBLIC OFFICER ELEMENTS OF A PUBLIC OFFICER


To be a public officer, one must be:
DEFINITION OF PUBLIC OFFCER 1. Taking part in the performance of public functions in the
government, or performing in said government any of its branches
ANTI-GRAFT & CORRUPT PRACTICES ACT
public duties as an employee, agent, or subordinate official, of any
"Public officer" includes elective and appointive officials and employees rank or class, and
permanent or temporary, whether in the classified or unclassified or
exemption service receiving compensation, even nominal, from the govt. 2. That his authority to take part in the performance of public
functions or to perform public duties must be by:
Ferdie: Take note it says receiving compensation, so seemingly in that definition a) Direct provision of law
you can say that as long as he receives something from the government you are
a public officer.
b) Popular election and
c) Appointment by competent authority
Serana v. Sandiganbayan
Ferdie: Common denominator for all definitions: For as long as one performs
Facts: A student regent charged with estafa argues that she is not a sovereign functions, he is a public officer.
public officer because she is a mere student who paid her tuition and
did not receive salary as such. General rule: Delegation of sovereign functions is the most
Held: Compensation is not essential to a public office, but a mere important characteristic of a public office
incident to it. Laurel v. Desierto
Ferdie: Whether or not one is receiving compensation is not essential. What is Facts: Laurel chaired the NCC. He was charged with graft and corruption
important is the performance of sovereign functions. for contractual anomalies he entered into as such. He argues he is not
a public officer because the NCC is a private and temporary office, he
Laurel v. Desierto was not paid salary for it, and did not take his oath of office.
Facts: Laurel chaired NCC to take charge of the National Centennial
Celebrations. He was charged with graft and corruption due to Held: Even if the other characteristics are missing, he is still considered
contractual anomalies. He argues he is not a public officer because he public officer because he was delegated with sovereign functions, the
did not receive salary as such which is a characteristic of a public officer. controlling characteristic of a public office.

Held: While salary is a usual criterion to determine the nature of the Except: When in the first place, there is no authority to appoint
position, it is not necessary because it is a mere incident and forms no a private person as public officer.
part of the office.
Azarcon v. Sandiganbayan
MECHEM Facts: Azarcon was designated by the BIR as custodian of disdained
An individual with a public office. property, one of which was a truck that suddenly disappeared. He was
charged before the Sandiganbayan which jurisdiction he now assails for
ADMINISTRATIVE CODE OF 1987 being a private person.
Officer Held: Azarcon is a private person. While the NIRC authorizes designation
As distinguished from clerk or employee, refers to a person whose of a custodian, it does not include the power to appoint him as a public
duties, not being of a clerical or manual nature, involves the exercise of officer.
discretion in the performance of the functions of the government.
Ferdie: If there is no authority to appoint you, your employment in the
When used with reference to a person having authority to do a particular government is void from the very beginning, in which case, you cannot be
considered a public officer.
act or perform a particular function in the exercise of governmental In this case, the authority is only to designate a custodian and not to appoint.
power, officer includes any government employee, agent or body having Designation is different from appointment and we know that already in Election
authority to do the act or exercise that function. Law (Prohibition on Appointment during Election Period)
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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

Exception to the exception: When a private person is charged REQUISITES TO BE CONSIDERED A DE FACTO OFFICER
as co-principal, accomplice or accessory of a public officer
charged with a crime under the jurisdiction of the 1. Necessity of office
Sandiganbayan. There must be a created office. No de jure or de facto officer
without the office to fill.
Go v. Sandiganbayan
Facts: Go is Chairman of PIATCO. He was charged in conspiracy with a 2. Color of title or general recognition and reputation
public officer in violating Section 3(g) of the Anti-Graft and Corrupt a) May consist in election or appointment
Practices Act. Go says Section 3(g) does not apply to him because he b) Holding office after expiration of term
is not a public officer but a private person who could not enter into a c) Acquiescence by the public in the acts of officer for such
contract in behalf of the government. length of time as to raise presumption of colorable right
Ferdie: Our premise is this, for as long as you perform sovereign functions you
are a public officer. The exception is when there is no authority to appoint you
3. Physical possession
which means you are a private person. But here what we are saying is even if you
are purely a private person you can be considered a public officer if the exception Ferdie: For the elective officials who were unseated, the period of their
to the exception is attendant to the case. incumbency prior to being unseated was the time when they are considered de
facto officer.
The elements of Section 3(g) are that:
1. The accused is a public officer General rule: The de facto officer is entitled to compensation.
2. That he entered into a contract or transaction in behalf of the Sampayan v. Daza
government Facts: Sampayan and other residents sought to disqualify Daza as
3. It is grossly and manifestly disadvantageous Congressman because he is a green card holder. But his term of office
already expired prior to his disqualification.
Held: When a private person is charged with conspiracy with a public
officer, either as co-principal, accomplice or accessory, he is also Held: A de facto officer cannot be made to reimburse funds and salaries
considered a public officer for purposes of acquiring jurisdiction over his because his acts are valid as those of a de jure officer. He is also entitled
person by the Sandiganbayan. to emoluments for actual services rendered.

KINDS OF PUBLIC OFFICER Ferdie: A de jure officer, who is declared as the rightful winner, cannot ask for
reimbursement for his salary because he did not work in the first place. It is the
de facto officer who is entitled to compensation at the time prior to his being
KINDS OF PUBLIC OFFICER unseated.
A. Executive officers those whose duties are mainly to cause the
laws to be executed. Except: Where there is a sitting de jure officer.
B. Legislative officers those whose duties relate mainly to the General Manager of PPA v. Monserate
enactment of laws. The general rule is where there is a de jure officer, the de facto officer
is not entitled to emoluments attached to the office during his wrongful
C. Judicial officers those whose duties are to decide incumbency even if he occupied it in good faith.
controversies between individuals and accusations made in the
name of the public against persons charged with violation of a law. But where the de jure officer assumed the lower position in protest, she
D. Ministerial officers those whose duty is to execute the is entitled to salary but limited to back pay differentials to avoid double
mandate, lawfully issued, of their superiors. compensation.

E. Military officers those who are in command in the army. Ferdie: In this case, the protestant gave way and occupied a lower position. Later,
she was declared the rightful winner. She cannot be given the entire salary that
F. Naval officers those who are in command in the navy. was received by the de facto officer. She is only entitled to the difference between
the salary for the contested position and salary received by de jure officer while
G. Civil officer one who holds his appointment under the occupying the lower position. Otherwise, it will result in double compensation.
government, whether his duties are executive or judicial, in the
highest or the lowest departments of the government, with the
exception of officers of the army and the navy. ELIGIBILITY AND QUALIFICATIONS OF PUBLIC OFFICERS

H. Special agent one who receives a definite and fixed order or QUALIFICATIONS
commission, foreign to the exercise of the duties of his office.
I. Officer De Jure one who has the lawful right to the office in all QUALIFICATIONS
respects, but who has either been ousted from it, or who has never
actually taken possession of it. What is meant by qualification?
Endowment that fits one for office or acts which a person is required by
J. Officer De Facto one who has the reputation of being the
law to do before assuming office like oath taking. There must be rational
officer he assumes to be, and yet is not the officer in point of law.
connection between requirements and duties.
K. National officers those who render service for the national
government. Ferdie: Remember our lesson in so far as the temporary vacancy of the start of
office is concerned for the President and Vice president? One of the causes of
L. Provincial officers those who render service for the provincial temporary vacancy is when the President fails to qualify. It means he did not take
government. the oath of office therefore he cannot assume office. This failure to qualify does
M. City and Municipal officers those who render service for the not pertain to a situation where there is a disqualification case and it became final.
city and municipal governments, respectively. But, of course, this doesnt happen because they always take their oath of office.

Who prescribes Qualifications?


Congress prescribes eligibility, qualifications, and disqualifications and
provide for methods of filling offices, subject to constitutional limitations.

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

Ferdie: Take note that there are other offices whose qualifications are prescribed QUALIFICATIONS FOR PRESIDENT
not under the law but by the rules and regulations promulgated by the government
agency tasked to fill in the gap of the law and that is called Subordinate Legislation. Article 7, Section 2, 1987 Constitution
When there is an organic law, Congress is not expected to anticipate each and
No person may be elected President unless he is a natural-born citizen
every detail that might happen with actual implementation or enforcement. That of the Philippines, a registered voter, able to read and write, at least
is why the government agency is authorized by Congress to fill in in the gap or to forty years of age on the day of the election, and a resident of the
complete the law and at the same time make sense or make it practicable for Philippines for at least ten years immediately preceding such election.
proper enforcement.
QUALIFICATIONS FOR VICE-PRESIDENT
GENERAL QUALIFICATIONS
Article 7, Section 3, 1987 Constitution
A. Citizenship There shall be a Vice-President who shall have the same qualifications
Only citizens can apply or take civil service examinations. Aliens and term of office and be elected with, and in the same manner, as the
cannot hold office, either appointive or elective. President. He may be removed from office in the same manner as the
President.
B. Residence
Synonymous with domicile. Imports (1) intention to reside in one The Vice-President may be appointed as a Member of the Cabinet. Such
place, (2) personal presence in that place and (3) conduct appointment requires no confirmation.
indicative of such intention
QUALIFICATIONS FOR HOUSE REPRESENTATIVE
C. Residence
President and VP Resident of the Philippines for at least 10 years Article 6, Section 6, 1987 Constitution
immediately preceding the elections No person shall be a Member of the House of Representatives unless he
Senator Resident of the Philippines for at least 2 years is a natural-born citizen of the Philippines and, on the day of the election,
immediately preceding the elections 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
D. Age he shall be elected, and a resident thereof for a period of not less than
President and VP - 40 one year immediately preceding the day of the election.
Senator 35
Qualifications are provided for by the Constitution and cannot
E. Education be added by mere legislation
For appointive positions only Pimentel v. Comelec
Facts: Section 36(g) of the Dangerous Drugs Act of 2002 requires all
F. Civil Service candidates for public office whether appointed or elected both in the
Required in appointive positions national or local government to undergo a mandatory drug test.

TIME OF POSSESSION OF QUALIFICATIONS The Commission on Elections issued a resolution prescribing the rules
and regulations on the mandatory drug testing of candidates for public
When should a public officer possess these qualifications? office in connection with the May 10, 2004 national and local elections.
It depends upon the Constitution or statute. But generally, at the time It further says no person elected to any public office assumes office
of election, appointment or assumption without mandatory drug test.

If qualification is not specified with reference to the time of elections, it Contention of Petitioner: Pimentel, a candidate for senator, says the law
refers to qualification to hold office rather than to be elected to it. Thus, and resolution are unconstitutional because they add to the senatorial
disqualification existing at the time of election may be removed before qualifications set forth in Article 6, Section 3, 1987 Constitution.
induction to office or before the term of office begins.
Held: Section 36(g) of the Dangerous Drugs Act of 2002 and Comelec
Ferdie: This pertains to Frivaldo case but as discussed before, it will take another Resolution No. 6486 are both unconstitutional because they infringe on
Frivaldo for the application of that case. Meaning, only if all facts are on all fours the constitutional definition of qualification or eligibilty requirements of
can the doctrine be applied. senatorial candidates.

Citizenship is required only at the time of proclamation. Property qualification is contrary to the Constitution
Frivaldo v. Comelec Maquera v. Borra
Facts: Frivaldo won as governor but was disqualified by Comelec for Facts: RA 4421 requires all candidates to post surety bond equivalent to
being an alien. Thus, Lee was proclaimed at 8:30pm on June 30, 1995. 1 year salary of the position sought. Thus, the Comelec required
But at 2pm of the same day, Frivaldo re-acquired his Philippine candidates for President, Vice-president, Senators and Congressmen to
citizenship through repatriation. post surety bond from a surety company acceptable to it in the amount
of P60,000, P40,000 and P32,000, respectively.
Contention of Lee: Even if Frivaldo re-acquried his citizenship, he is still
disqualified because citizenship is a condition precedent to the filing of Held: It constitutes property qualification which is contrary to the
candidacy. Constitution. It is inconsistent with the Republican system and the
principle of social justice.
Held: Citizenship is required only at the time of proclamation and at the
start of term of office.

Ferdie: In the case of Frivaldo, it might have been articulated already the fact
that you cant cancel your candidacy if you lied about your qualification as to
citizenship. But again Frivaldo doctrine is applicable provided the same
circumstances peculiar to that case can be repeated in the future.

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

Ferdie: If the acquittal is based on innocence, you can get back to your previous
DISQUALIFICATIONS position. If it is a job order employee, it does not go to the CSC that is why theres
no employee-employer relationship with the government but for casual employees
DISQUALIFICATIONS there is EE-ER relationship.
A. Conviction of the crime of malversation of public funds In the government, if you want to apply for a position, there is PSV (Personal
B. Impeachment Selection Vote). In PSV, youre interviewed, you have to take written exams, and
Ferdie: If you are impeached, you cannot return to public service because your credentials will be evaluated. But considering that it is the government,
impeachment carries with it an accessory penalty of perpetual lutong macaw ang process because many people are waiting in line inside the
disqualification to hold public office. organization to be appointed to a permanent position.

C. Congress cannot add disqualifications than what is provided for in In the PSV, for example, there are 20 applicants and 10 of them achieved the
minimum grade, the appointing authority is going to choose who among the top
the Constitution 10 will be appointed to the position. He can choose the 10th, the 1st, or anyone
D. Property in the form of cash bond (Maquera v. Borra) from the top 10. That is discretionary on the part of the appointing authority. What
E. Lifestyle in the form of negative drug test (Pimental v. Comelec) is the role of CSC then? To be discussed in next case.

EFFECTS OF PARDON UNDER THE RPC


FORMATION OF RELATIONS
Article 36. Pardon
A pardon shall not work the restoration of the right to hold public office, BY ELECTION AND APPOINTMENT
or the right of suffrage, unless such rights be expressly restored by the
terms of the pardon. A pardon shall in no case exempt the culprit from BY APPOINTMENT
the payment of the civil indemnity imposed upon him by the sentence.
Authority of the CSC to approve appointment is limited to
Ferdie: Even if there is pardon, the civil damages shall be paid for by the one inquiry.
pardoned. In Estrada case, it was found that the pardon granted by Arroyo to
Estrada was absolute and he accepted the terms and conditions. Thats why Central Bank v. CSC
Estrada was able to run for mayor and not for re-election. Facts: The CSC voided the appointment of Jordan and replaced him with
Borja who it considers more qualified.
General rule: Pardon does not automatically reinstate, it merely
restores eligibility for appointment. Held: The authority of the CSC is limited to determine whether the
appointee possesses appropriate civil service eligibility and other
Monsanto v. Factoran
qualifications because the authority to inquire qualification does not
Facts: An Assistant Treasurer was convicted for estafa and ordered to
include the power to replace the choice of the appointing authority as it
pay at least P4,000. She moved to reconsider her conviction during
constitutes encroachment.
which she was extended absolute presidential pardon which she
accepted. Ferdie: Bottomline: The choice of the appointing authority provided he/she
possesses the minimum qualifications should not be disturb by the CSC because
She thus argued that the pardon wiped out her crime and she should be his duty is limited to whether or not the appointee possesses the minimum
reinstated without need to re-apply and be paid full back wages. She qualification. So even if seemingly it appears that somebody else in qualified, it
also refused to pay the fine. cannot replace the judgment and wisdom of the appointing authority.

Held: Pardon does not ipso facto restore a convicted felon to the office Even if there is evidence one possesses better qualification
necessarily relinquished or forfeited by reason of conviction although it than the other.
restores her eligibility for appointment to that office. Pardon merely
Lapinid v. CSC
removed her disqualification. She must re-apply. That her conviction did
Facts: The CSC replaced Lapinid with Junsay because the comparative
not acquire finality when she was extended pardon is of no moment
evaluation sheets show Lapinid got 75 while Junsay got 79.5.
because pardon presupposes a crime was committed.

Ferdie: If there is a criminal case, the accessory penalty is the forfeiture of public
Held: Appointment is discretionary on the part of the appointing
office perpetually but if there is pardon that disqualification will be removed but it authority. The authority of the CSC is limited only to inquire whether the
does not necessarily follow that youre going to be reinstated right away to your appointee possesses qualifications required by law. If the appointee
position that was forfeited by reason of the criminal conviction. So back to zero, does possess, the CSC has no other choice but approve the
you must re-apply. appointment.
The fact that she was extended the pardon and she accepted it presupposes that Ferdie: If one does not possess the qualification at the time of the appointment,
a crime was committed. Even without the finality or the case is still pending, the the CSC must disapprove the appointment. Example, if the minimum qualification
extension of pardon and the act of accepting it, already presupposes that there for a position of public office says law graduate and there are two choices the
was a crime. bar topnotcher and the law graduate who failed the bar. If the latter was the one
appointed by the appointing authority, can CSC replace? No because he possesses
Bottom line: If there is pardon, it does not give you automatic right to get back to the minimum qualification and CSC cannot replace the judgment and wisdom of
your position that was forfeited by reason of conviction of an offense which carries the appointing authority.
a penalty of forfeiture of public office.
Luego v. CSC
Except: When acquittal is based on innocence. The duration of authority of the CSC terminates after the inquiry. If the
Garcia v. COA Chairman CSC finds the appointee is qualified, it must approve. Otherwise, it
Facts: Garcia was administratively charged with dishonesty and disapproves. There is no middle ground.
criminally charged with qualified theft due to loss of telegraph poles. But
he was acquitted based on innocence in the criminal case. It becomes functus officioan officer or agency whose mandate ended
because the date expired and the purpose for which it was created was
Held: if acquittal in criminal case is based on innocence, acquittal in accomplished. It mostly refers to lack of authority to rehear a case after
administrative case should follow. Thus, he should be reinstated and it has rendered judgment; they are void of office.
paid back wages because the separation is void.
Ferdie: Just like the acceptance of COC. Once accepted, the function of the
COMELEC officer ends there.

6|U N I V E R S I T Y O F S A N C A R L O S S L G
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

General rule: Appointment and Designation are separate and The term limit of the incumbent officials will be shortened - Court said
distinct. that it is not allowed also since the Constitution expressly provides for
the 3-year term limit and it cant be reduced or lengthened by a law.
Sevilla v. Santos
Facts: Sevilla was an engineer of one city, but he was also designated Holdover capacity Incumbent official will have his term extended until
Acting City Engineer of another city. Later, another was appointed in a the time the ARMM election is held.
permanent capacity to the position he was designated.
Whether President is empowered to appoint OICs.
Issue: Can he challenge the permanent appointment? Yes. The court finds this permissible under the Constitution. The
President has the power to appoint if there is a law vesting authority to
Held: No. His designation in an acting capacity merely added his the President. The power of the President to appoint OIC is found in the
functions. It does not confer security of tenure. This is the distinction law on synchronization that the Congress enacted.
between appointment and designation.
Ferdie: During Cory Aquinos time after the revolution she appointed OIC all over
Except: When the appointment is used in its general sense, it the country and those elected officials whose term has ended refused to step down
because they said that they were elected by the people. But the Constitution
includes designation provides for a term limit.
Santiago v. COA Once it has ended, they cant stay unless re-elected. Since there was no election
Facts: A retiree wanted to base his retirement benefits on a designated because it was a revolutionary government, the President appointed OICs. That
position because the salary is higher. time alone it can be inferred that the President has power to appoint in case term
of office has ended and no one replaces the incumbent.
Held: The law that sets the highest basic salary rate as basis for
computation did not intend to distinguish between appointment and POWERS, DUTIES, PRIVILEGES AND PROHIBITIONS
designation. Because it includes the highest salary rate compensation
for substitutionary services or in an acting capacity. SOURCES OF POWER
Ferdie: This is the exception. The general rule is that retirement clause should be
construed in favour of the retiree to afford humanitarian consideration. SOURCES OF POWER
A. Article II, 1987 Constitution
B. Declaration of principles and state policies.
ASSUMPTION AND TERM OF OFFICER
C. Section 1. The Philippines is a democratic and republican State.
Sovereignty resides in the people and all government authority
DOCTRINE OF HOLDOVER CAPACITY emanates from them.

DOCTRINE OF HOLDOVER CAPACITY Ferdie: The government derives power from the people as provided in the
Constitution which says that all government authority emanates from them. This
Term of office of a local elective official cant be extended by a applies to both elected and appointed officials. The source of power is the PEOPLE.
mere ordinary legislation because no less than the Constitution
provides for it except for barangay and SK officials. SCOPE OF AUTHORITY

Abas Kida v. Senate SCOPE OF AUTHORITY


Facts: Congress passed a law for the synchronization of the ARMM local Doctrine of necessary implication
elections with the national elections in May. ARMM have local elections Scope of authority includes all powers necessary for the effective
every August and the term ends on November. It was proposed that the exercise of express powers pursuant to the doctrine of necessary
August ARMM elections will be suspended in order to synchronize it with implication.
May national elections. So end of term November but next election is
May. The period in between is the issue in this case. Are they going to Lo Cham v. Ocampo
extend the term of the incumbent? If not who will take care of ARMM? Facts: A lawyer, also a doctor, from the medico legal division of the DOJ
was detailed by the justice secretary to assist the city fiscal with the
Issue: same powers and functions of an assistant city fiscal. He investigated,
1. Whether Congress is empowered to change the schedule of the signed and filed Information sheets.
ARMM local elections to synchronize with the national elections.
2. Whether the holdover capacity is constitutional. The respondents moved to quash on the ground of lack of authority on
3. Whether President is empowered to appoint OICs. the ground that the person who conducted such had no authority to do
so, he was not a fiscal and he was just assigned to assist.
Held:
Whether Congress is empowered to change the schedule of the ARMM Issue: Whether the Lawyer had authority to investigate, sign and file
local elections to synchronize with the national elections information sheets.
Yes. The synchronization of ARMM elections with national and local
elections is necessary. Congress has capacity to synchronize elections. Held: The power to investigate, file and prosecute criminal cases is
Confronted with the gap between November which is the end of term of inherent in the right to assist. The duties of a public office include all
ARMM officials and May schedule of national elections, the court those:
discussed the following options of Congress: 1. Which truly lie within its scope;
2. Essential to accomplish the main purpose of the office;
Whether the holdover capacity is constitutional. 3. Relevant to accomplish the main purpose even if they are merely
No. Holdover is unconstitutional. The Constitution expressly provides for incidental and collateral.
the term limit of 3 years for the elective local public officers except the
barangay and SK officials. There is no way the court can choose this If the law does not prohibit specific acts, all related acts may be
option since it is the Constitution itself which fixed the period to 3 years performed pursuant to the doctrine of necessary implication.
and it cannot be amended by mere legislation.
Ferdie: Under the Revised Administrative Code, the Secretary of Justice can
appoint and assign any person qualified to assist the fiscal in his duties and at the
same time exercise powers of the Attorney General. The power given to the
7|U N I V E R S I T Y O F S A N C A R L O S S L G
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

assignee is so broad that it must carry all the necessary powers in order to conduct Ferdie: Actually in this case, if you think about it, mandamus is allowed to compel
an effective exercise of function. Since the fiscal investigates, files and prosecutes the doing of discretionary act because mandamus merely says do it but it should
criminal cases, it follows that the assignee has the capacity to do acts necessary not say this is how you should do it because if that is the case, it is outside the
for the accomplishment of fiscals tasks. Using the doctrine of necessary province of mandamus. It is already certiorari which corrects discretion.
implication, if it is not prohibited then it follows that it is allowed.
Exception: Where there is grave abuse of discretion, manifest
The problem in the case is that the authority in writing only says that the lawyer injustice, palpable excess of authority equivalent to denial of
is detailed to assist the city fiscal. There was no mention whether by assisting, he settled rights and there is no other plain, adequate or speedy
will also be allowed to investigate, file and sign information and prosecute criminal
remedy.
case. Applying the doctrine of necessary implication and inferences, such functions
are collateral and incidental matters that are necessary to the effective
First Phil. Holdings v Sandiganbayan
performance and exercise of the main task assigned even if not expressly written.
Facts: A civil case between the PCGG and spouses Romualdez and their
Rule: Even if its not expressly stated in the authority for as long as it is incidental, dummies to recover shares of stock is pending with the Sandiganbayan.
collateral, necessary and germane to the purpose, it is allowed, A company intervened, claiming ownership of the shares. But the
intervention was denied because it will unduly delay the case, among
Limitation: Provided that there is no express prohibition. others.

Doctrine of necessary implication is equivalent to common sense and Held: The grant of intervention is a discretionary act of the court that
there is no need to expressly provide the authority. cannot be compelled by mandamus. But since the company established
legal interest in the matter at litigation, the denial of intervention based
Q. Had it not been lawyer who was detailed, can the doctrine of on flimsy grounds amount to grave abuse of discretion. As such,
necessary implication be invoked? mandamus lies against the discretionary act of granting or denying the
No. Under the law, one can never be a prosecutor if he is not a lawyer. motion to intervene.
In one BIR case, the custodian of escheated property was designated
but there was no power to designate in the 1st place. Here, there is no Ferdie: Motion to Intervene is discretionary upon the court, provided that the
authority to detail a non-lawyer to assist the prosecutor. You can only granting or denying of said motion has legal basis. The only reason cited by
assist a prosecutor if you are a lawyer also. Sandiganbayan in denying the motion is that the intervention will unduly delay the
proceedings. Such reason was unacceptable to the Supreme Court. SC said that
they should allow the petitioner to intervene because it is incidental to the main
KINDS OF AUTHORITY case pending. Ordinarily, mandamus will not prosper to compel a discretionary act,
except when there is:
KINDS OF AUTHORITY 1. Grave abuse of discretion;
2. Manifest injustice;
A. Discretionary 3. Palpable excess of authority equivalent to denial of settled rights; and
One where the law imposes a duty upon a public officer and gives 4. There is no other plain, adequate or speedy remedy
him the right to decide how and when the duty shall be performed.
Important: The writ of mandamus here is issued to compel the
Asuncion v. Yriarte exercise of discretion, but not the discretion itself.
Discretion is a faculty conferred upon a court or other official by
which he may decide the question either way and still be right. PROHIBITIONS FOR AND AGAINST PUBLIC OFFICERS

B. Ministerial PROHIBITIONS FOR AND AGAINST PUBLIC OFFICERS


One where its discharge by the officer concerned is imperative and Article IX-B, 1987 Constitution, Section 2 (3)
requires neither judgment nor discretion on his part. 1. No officer or employee of the civil service shall be removed or
suspended except for cause provided by law.
Example: Filing of CoC. However, even if ministerial, Comelec
would still need to verify if it was complete, signed and notarized. Ferdie: Equivalent to just and authorized causes in Labor law is cause
provided by law in government
General rule: A discretionary act cannot be compelled by 2. No elective or appointive public officer or employee shall receive
mandamus. additional, double or indirect compensation, unless specifically
Aprueba v Ganzon authorized by law, nor accept without the consent of the Congress,
Facts: A stall was ordered closed by the mayor due to arrears and any present, emolument, office, or title of any kind from any
violations such as failure to comply with health requirements. The stall foreign government.
owner paid the arrears and complied with conditions but the mayor still TN: Pensions or gratuities shall not be considered additional,
refused to re-open. double, or indirect compensation.

Aprueba and Modo filed a petition for mandamus to compel the mayor
to allow them to operate their stalls. Petitioners said it was done by the
mayor in retaliation due to their refusal to side with the mayor in the
campaign. Petitioners incurred losses due to the closure. Mayor claimed
that he cannot be compelled by mandamus because such act is within
his sound discretion. And even if mandamus will lie, still he wont grant
it because Aprueba violated a city ordinance in subleasing his place to
Modo.

Held: The mayor cannot be compelled because the grant of business


licenses is a discretionary act on his part in the exercise of police power
and for reasons of public policy and sound public administration.
Mandamus will not lie because it is within the sound discretion of the
mayor to grant or not grant the license to operate.

Mandamus is not the proper remedy. Petitioners recourse is through a


civil case, particularly specific performance.
8|U N I V E R S I T Y O F S A N C A R L O S S L G
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

RIGHTS AND PRIVILLEGES OF PUBLIC OFFICERS Prohibition against violation of independence (Judiciary and
Constitutional Commissions)
RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS
1. Right to office Section 3, Article IX-B, 1987 Constitution
2. Right to compensation The salary of the Chief Justice and of the Associate Justices of the
3. Presidential immunity from suit Supreme Court, and of judges of lower courts shall be fixed by law.
4. Doctrine of official immunity During their continuance in office, their salary shall not be decreased.
5. Preference in promotion
6. Leave of absence Section 3, Article IX-B, 1987 Constitution
7. Retirement pay Salary of the Chair & Commissioners of the Constitutional Commissions
shall be fixed by law and shall not be decreased during their tenure.
RIGHT TO OFFICE
Ferdie: Congress can fix the salary but cannot decrease it. This refers to
RIGHT TO OFFICE compensation salary only. Benefits are not included, unless the benefit has been
there for a long period of time that you have already acquired rights over the
A. The right to office of an incumbent does not depend on any same.
contract.
B. It creates no contractual relation between holder and the public. Back wages are awarded for the period of suspension or
C. It exists by virtue of some law. dismissal if it is unjustified and the employee is found innocent
D. It generally entitles holder to compensation. of the charge.

RIGHT TO COMPENSATION CSC v Cruz


Facts: Employee was preventively suspended and later on dismissed for
RIGHT TO COMPENSATION grave misconduct and dishonesty. But he was found innocent of the
Salary personal compensation provided to be paid for services, and it charges. The finding of dishonesty was downgraded to violation of
is generally a fixed annual, or periodic payment depending on the time reasonable office rule for failure to record attendance which is
and not on the amount of services rendered. punishable by reprimand only.

Salary v. Wages Ferdie: CSC ruled that even if the statements were not true, the act did not
Salary is given to officers of higher degree of employment than those to constitute grave misconduct. On the dishonesty charge, the employee was able to
whom wages are given. establish that he is entitled to overtime pay since he actually rendered work but
due to his failure to log in and log out, he was reprimanded. CSC ordered
Salary is interchangeably used with compensation. reinstatement but did not award back wages.

How to establish right to compensation Issue: Whether respondent is entitled to backwages.


The officer must show that he is the officer either by:
1. Lawful appointment Held: Yes, the two conditions for award of back wages are met, to wit:
2. Election 1. Innocence
3. Qualification 2. Suspension or dismissal is unjustified.

GM of PPA v. Monserate Ferdie:


General rule: Public officials can only get payment for services which they rendered
The general rule is during incumbency, the de facto officer is entitled to Except: When the public official was illegally dismissed. One can be awarded with
the emoluments attached to the office, even if he or she occupied the backwages during the period of suspension when the following requisites concur:
office in bad faith. But where the officer de jure assumed a lower 1) Employee must be found innocent with the charges and
position under protest, he is entitled to back pay differentials to avoid 2) Suspension was unjustified
double compensation.
When there is complete exoneration of the charges, the 2nd criteria is already
Sampayan v. Daza subsumed. However when the exoneration of charges is relative in a sense that
the factual basis of the charges is still present (but only imposed with lower
A de facto officer cannot be made to reimburse funds disbursed during penalty) the 2nd criteria must be strictly observed.
his term of office because his acts are valid as those of a de jure officer.
As a de facto officer, he is also entitled to emoluments for actual services In this case, he was completely exonerated but he has a slight infraction. Court
rendered, provided there is no sitting de jure officer. said that if failure to record attendance was his only infraction, the suspension was
illegal.
Constitutional prohibitions on salaries Prohibition against self-
serving legislation (Congress) PRESIDENTIAL IMMUNITY FROM SUIT
Article VI, Section 10, 1987 Constitution PRESIDENTIAL IMMUNITY FROM SUIT
The salaries of Senators and Members of the House of Representatives The 1987 Constitution has not reproduced the explicit guarantee of
shall be determined by law. No increase in said compensation shall take immunity under the previous Constitution. But presidential immunity
effect until after the expiration of the full term of all the Members of the during tenure remains part of the law.
Senate and the House of Representatives approving such increase.
Purpose: To assure the exercise of presidential duties and functions is
Prohibition against self-serving approval (President) free from any hindrance or distraction. The president must devote
Section 6, Article Vll, 1987 Constitution undivided time and attention.
The President shall have an official residence. The salaries of the
President and Vice-President shall be determined by law and shall not However: Once out of office, even before the end of term, presidential
be decreased during their tenure. No increase in said compensation shall immunity from suit is lost.
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 any other emolument from the Government or any other source.

9|U N I V E R S I T Y O F S A N C A R L O S S L G
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

This privilege may be invoked or waived by the president only. Honest mistake in the interpretation of ordinance is covered
by immunity.
Soliven v Makasiar
Facts: Cory Aquino filed a criminal case for libel against Beltran who Tuzon v. CA
wrote she hid under her bed at the height of the coup d'etat. Beltran
argued she cannot file a criminal case during her incumbency because Facts: An ordinance authorized the treasurer to ask thresher operators
presidential immunity from suit includes disability to sue. who apply for permit to donate 1% of all threshed palay. Thus, he
prepared an agreement. The operator who did not sign was refused
Ferdie: If you do, then you are already waving your immunity from suit. Beltran payment of license fee and renewal of permit. It turned out however
argues that if the President will file suit, she opens herself to counter damage suit.
that the 1% is optional.
Held: Privilege of immunity from suit pertains to the president alone by
Held: They acted within their authority pursuant to their honest
virtue of the office and may be invoked only by the holder of the office
interpretation of the ordinance. The error does not amount to bad faith
and not any other person in his or her behalf.
hence they are not liable for damages.
Right to immunity is a personal right to the President who can waive the Ferdie: In this case, the mayor had an error in interpreting the ordinance. The
same. It cannot be raised as a defense in order to prevent the case from mayor thought that the 1% donation by thresher operators was mandatory. So,
proceeding nor the President be compelled not to waive it those who did not give 1% donation were refused issuance of license. However,
it turned out that the 1% was only optional. Those who did not pay claim that they
Reason for presidential immunity from suit incurred losses. The issue faced here is whether the mayor is personally liable.
It is to prevent the President from getting distracted during incumbency. Court said that the honest mistake committed by an official will not make him
personally liable for damage or losses which may result therefrom.
After his term, the immunity is lost, so cases may be filed against him.
If theres no immunity during the term, the President will be constrained Q. What if the people who erred in the interpretation of the
to face the charges instead of attending to his functions. ordinance were lawyers from San Carlos?
It may still be argued that even if they are lawyers, they are still
DOCTRINE OF OFFICIAL IMMUNITY vulnerable in committing mistakes, provided that in committing the
same, there is good faith. So even if there is an honest mistake, they
DOCTRINE OF OFFICIAL IMMUNITY cannot be held personally liable.
A public officer, as long as he acted in good faith, even if he causes
damage to another, cannot be held personally liable out of the PREFERENCE IN PROMOTION
performance of an official act pursuant to the doctrine of official
immunity. PREFERENCE IN PROMOTION

Rationale: If the official will be held personally liable, he will be hesitant Taduran v. CSC
to make decisions because of fear of incurring liability. Unless the official There is no mandatory nor peremptory requirement in law that persons
is in bad faith, no liability attaches to him in the performance of his next-in- rank are entitled to preference in appointment. But they would
official functions. be among the first to be considered for the vacancy, if qualified. If the
vacancy is not filled by promotion, the same shall be filled by transfer or
Error in good faith is covered by official immunity other modes of appointment. This is known as the Next in Rank rule.
Farolan v. Solmac
LEAVE OF ABSENCE
Facts: Imported film scrap was found to be an oriented fiber which
importation is prohibited. Customs officials withheld release, pending LEAVE OF ABSENCE
advice from the Board of Investment which took years before it allowed
release. One of them was sued for damages because the delay cost the Right to vacation leave
importer business losses. A. At least 6 months continuous, faithful and satisfactory service
B. Entitles the employee to a 15-day vacation leave of absence with
Held: The official is not personally liable because he acted in good faith. full pay, exclusive of Saturdays, Sundays and holidays.
Even if he erred, he is not liable because the damage did not result in C. For each calendar year of service. (Secs. 284, 285, Rev. Adm.
injury to the importer. Code as amended by R.A. 2625)
Ferdie: Vacation leave, when not used, can be monetized (cash
The officials cannot be held liable in the performance of its functions, equivalent)
i.e. withholding the release of the product, because they enjoy
presumption of good faith and regularity in the conduct of its official Right to sick leave in addition to vacation leave
functions. Good faith, being a state of mind can be inferred from the A. At least 6 months continuous, faithful and satisfactory service
acts of the officials. In this case, the acts of the official which indicates B. Entitles the employee to 15 days sick leave of absence with full
good faith are: pay, exclusive of Saturdays, Sundays and holidays.
1. Relying on the expert opinion of DOST; and C. For each calendar year of service. (Sec. 285, Rev. Adm. Code as
2. Seeking the opinion of Board of Investment which was rendered amended by R.A. 2625)
late and conflicting. D. On account of sickness of the employee or any member of his
immediate family.
Ferdie: Because, in this case, there was an issue on the nature of the products:
whether they are prohibited, restricted, or allowed. The Commissioners were Ferdie: Sick leave cannot be monetized even if not used; but may be
justified on their refusal to release the products upon Solmacs request because availed even if it was a member of the family who was sick
the opinion sought did not guide the Commissioners properly.
Pensions
Even if there is damage or losses caused arising from that performance of an Regular allowances paid to the retiree in consideration of services
official function, damnun absque injuria (damage without injury) applies. As a rendered or in recognition of merit, civil or military.
public officer, as long as he acted in good faith even if you cause damage to
another one cannot be held personally liable out of the performance of an official
Gratuity
act because they are covered with official immunity.
A donation, an act of pure liberality of the State.
Ferdie: Pension is an act of justice while gratuity is an act of generosity.

10 | U N I V E R S I T Y O F S A N C A R L O S S L G
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

RETIREMENT LAW It may be overcome by clear and convincing evidence to the


contrary.
RETIREMENT LAW San Luis v. CA
Facts: An official suspended an employee. Later, there was an order
Construction of retirement laws to reinstate the latter. However, the official disregard said order and
Santiago v. COA eventually dismissed the employee.
Facts: A retiree wanted to base his retirement benefits on a designated
position because the salary is higher. Initially, the officer was transferred and reason of transfer was that he
denounced the graft and corrupt practices of some of the provincial
Held: The law that sets the highest basic salary rate as basis for officers. After transfer, the Governor subsequently suspended and
computation did not intend to distinguish between appointment and eventually dismissed the officer. Said officer contested the dismissal
designation. Because it includes the highest salary rate "compensation before CSC and Office of the President. Both administrative agencies
for substitutionary services or in an acting capacity". found the transfer to be erroneous. Despite such ruling and order for
Retirement laws should be liberally construed in favor of the retiree reinstatement, the governor continued to suspend and dismiss the
because they are intended to provide sustenance for the retiree, and officer.
even comfort, when he no longer has the stamina to continue earning
his livelihood. Held: Blatant disregard of the order reinstating an employee is a clear
indication of bad faith of an official which makes him personally liable
Ferdie: In an acting capacity it includes designation. The law does not for damages incurred by the employee. While the officials enjoy the
distinguish. presumption of good faith, the same can be overcome by clear and
convincing evidence.
LIABILITIES OF PUBLIC OFFICERS
Court ruled that the rulings of CSC and Office of the President must be
PRESUMPTION OF GOOD FAITH AND REGULARITY accorded with due respect. It is a ministerial duty of the Governor to
reinstate the officer because it was clear that he has a right to his office.
PRESUMPTION OF GOOD FAITH AND REGULARITY IN THE
PERFORMANCE OF DUTIES BPI v. Evangelista
Officials enjoy the presumption of good faith and regularity in the To overcome this presumption, clear and convincing evidence to the
conduct of performance of their official functions. Absent any clear contrary must be presented.
showing and convincing evidence of bad faith, they are spared from
personal liabilities. Pac Pacific v. Sales Co.
The presumption of regularity may only be rebutted by evidence so
Farolan v. Solmac
clear, strong and convincing as to exclude all controversy. Absent such,
Even if the withholding of imported goods turned out to be improper,
the presumption must be upheld. The burden of proof to overcome the
the public officer is not personally liable because his act enjoys
presumption lies on the one contesting the same.
presumption of good faith and regularity.
KINDS OF LIABILITY
Tuzon v. CA
Even if the public officer erred in the interpretation of ordinance resulting
KINDS OF LIABILITY
in the delay of issuance of permit and business losses, he is not
personally liable if the interpretation is honest although erroneous. A. Nonfeasance neglect or refusal, without sufficient cause, to
perform an act which it was the officer's legal obligation to the
Error in the exercise of authority is covered by immunity, individual to perform. This is omission of duty.
provided it is done within the scope of authority in good faith, Ferdie: This is a resemblance of ministerial duty.
without willfulness, malice or corruption.
B. Misfeasance or negligence, failure to use, in the performance
Philippine Racing Club v. Bonifacio of a duty owing to the individual, that degree of care, skill and
diligence which the circumstances of the case reasonably
Facts: The results of a horse race was nullified by the Commission on demand. This is improper act.
Races after it investigated and found a faulty start. The winners claimed
prizes and losers were reimbursed of the amount of their bets. It turned C. Malfeasance acts without any authority, excess, ignorance or
out however that the Commission did not have the authority to nullify abuse of power. This is illegal act.
the results of the race.
Test to determine if offense is committed in relation to office
Held: Honest belief that it had the power of control is good faith. Good Crisostomo v. Sandiganbayan
faith being a state of mind is inferred from the acts of the officials the Facts: Crisostomo is a jail guard charged with murder of a detainee
officials acted on impulse and immediately conducted an investigation under his custody before the Sandiganbayan. He argues lack of
after the commotion and rendered a decision which was done in good jurisdiction because there is no direct relation between the commission
faith. Also, the Commissioners honestly believed that they had the of murder and his public office.
authority to order the cancellation and nullification of the results.
Held: The direct relation is shown in his duty as a jail guard which is to
The presumption is however not absolute. ensure safe custody and proper confinement of a detainee who was
Eulogio v. Spouses Apeles murdered under his watch.
Section 3, Rule 131 of the Rules of Court expressly provides that the
presumption that official duty has been regularly performed is Ferdie: The public officer commits an offense in relation to his office if he
perpetuates the offense while performing his function and without such position,
satisfactory if un-contradicted and overcome by other evidence. The
he could not have committed the act.
presumption, however, is not absolute.

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

Public office need not be an element of the crime charged to Dismissal of a criminal case does not bar administrative liability
show they are related. even if both arise from identical facts.
Esteban v. Sandiganbayan Office of the President vs Cataquiz
Facts: A bookbinder charged a judge with acts of lasciviousness after Facts: Cataquiz was criminally and administratively charged for graft and
he made sexual advances and innuendos on her when she sought his corruption. He was replaced and later dismissed from service,
recommendation. The judge argues the acts of lasciviousness were not disqualified to hold public office and forfeited of retirement benefits. But
committed in relation to his office as a judge, and it is not an essential the criminal case was dismissed. He argued it constitutes the law of the
element of the crime. case. As such, the administrative case must also be dismissed.

Held: True, public office is not an element but still, he could not have He also argued he could no longer be dismissed because he was
committed it were it not for his power to recommend appointment. dismissed by replacement earlier. As such, the accessory penalties of
disqualification and forfeiture cannot be imposed pursuant to the
Ferdie: Public office is not an essential element of the act of lasciviousness. But principle that the accessory follows the principal.
still, having the authority to recommend or appoint, petitioner used his position to
perpetrate the acts committed. Had there been no authority to appoint, the official
could not have committed those acts. Held: Dismissal of the criminal case does not bar administrative case
and accessory penalties pursuant to the 3-fold liability rule.
THREE-FOLD LIABILITY RULE
Ferdie: So there is a criminal a case and also an administrative case. But for both
THREE-FOLD LIABILITY RULE these cases, they arise form identical set of facts. The causes of action for both is
It states that the wrongful acts or omissions of a public officer may give the malversation. The criminal case is dismissed. SC said that the weight of
evidence is different. Proof beyond reasonable doubt v. substantial evidence.
rise to civil, criminal and administrative liability. It is not mandatory.
There are different quantums of proof. First is substantial evidence for
Office of the Court Administrator v. Enriquez administrative cases, then preponderance of evidence for civil cases, then clear
An action for each can proceed independently of the others. They are and convincing evidence, then proof beyond reasonable doubt in criminal cases,
separate and distinct from each other. then lastly, the highest quantum of proof, overwhelming evidence. Guilt beyond
reasonable doubt, there is still doubt but the doubt is unreasonable.
Absence of essential elements of the crime charged does not
bar administrative liability pursuant to the three-fold liability Important: Dismissal of the criminal case does not bar administrative case even if
they arise from the same set of facts except if the dismissal of the criminal case is
rule. based on innocence. It follows that there is no more administrative case provided
that they arise from the same set of facts.
Domingo v. Rayala
Facts: A stenographic reporter charged the NLRC Chairman with sexual
But when the public officer acts as a government lawyer, the
harassment. The Chairman argued the acts complained of do not
action for damages must be brought in a separate action
constitute sexual harassment because the essential elements of demand
for sexual favour and made as a pre-condition to employment or Chavez v. Sandiganbayan
promotion were not alleged. Facts: The PCGG, represented by Solicitor General Frank Chavez, filed a
complaint for reconveyance, reversion and accounting, restitution and
Held: Correct, if it is a criminal case. Even if none of the elements of damages against Enrile. Enrile impleaded Chavez in his counter-claim
sexual harassment is alleged, he is still administratively liable because for damages, alleging it is a mere harassment suit because he was
under the 3-fold liability rule, the wrongful acts of a public officer may already cleared from a similar case before.
also give rise to administrative liability, apart from criminal and civil
liability. Held: The action is misplaced. There is no general immunity arising
solely from occupying a public office. Public officers can be held
It is not required that the demand, request or requirement of a sexual personally liable for ultra vires acts or if they act in bad faith. But to
favor be made categorically. It is enough if it creates an intimidating, allow a counterclaim against a lawyer leads to mischievous
hostile or offensive environment. consequences.

Ferdie: Certain acts of public officials give rise to the 3-fold rule. Administrative, Ferdie: What the court is saying here is that although there is official immunity
civil and criminal. Each can proceed independently. However, there are acts which from suit for the acts of public officers that is not absolute. There are exceptions.
do not necessarily give rise to three-fold liability. An example is an employees For example if the public officials act in ultra vires or in bad faith they can be held
tardiness in reporting to work. It will give rise to administrative liability but there personally liable.
is no criminal liability. However, when ones tardiness is being covered by changing
the DTR (Daily Time Record) and he subsequently claims salary, it amounts to But the remedy Enrile availed here is odd and unprocedural because hes filing a
falsification which is a criminal offense and thus gives rise to criminal liability. There counter-suit against the lawyer handling the case against him. SC said that that is
will also be civil liability because the employee has to return the salary he received not the proper remedy because if allowed, it will result to mischievous
for the period when he was late and no work was performed. circumstances or consequences.

Usually, if its a criminal case, more or less it embraces the administrative offense. What are these mischievous consequences? It will intimidate or harass the lawyer.
If its purely administrative offense, more often than not, it does not embrace the There may be an instance that he will not file a case because he will be retaliated.
criminal offense. Civil liability can only be had if there is bad faith. Thats why it is SC also said that if you really want to vindicate your name, file a separate action.
said that an offense MAY give rise to the three-fold liability. It is not mandatory.

Also, it is not a defense to say that since there is already a criminal case (or an
administrative case) filed, there can be no more administrative case (or criminal
case). Following the three-fold liability rule, these actions can proceed
independently from each other.

In the case of Rayala, would the defense of I did not verbalize the sexual favor
prosper in a criminal case? The SC somehow suggested that this would prosper if
it was a criminal case because he did not verbalize the sexual favor.

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

greater degree of circumspection before signing & issuing public


LIABILITY OF OFFICERS FOR ACTS OF SUBORDINATES
documents.
LIABILITY OF OFFICERS FOR ACTS OF SUBORDINATES
Arias doctrine does not apply because he was not charged in conspiracy
The signature of the approving officer does not in itself amount with the paymaster. He was separately charged and found to be
to conspiracy with the subordinates. negligent in his supervisory powers.

Arias v. Sandiganbayan & Data v. Sandiganbayan Ferdie: Another reason why Cesa (city treasurer) invoked the Arias Doctrine is
Facts: An auditor approved payment for expropriated land which turned that, according to him, he actually manages a big department, having 5
out to be overpriced and supported by falsified documents. He was department heads and 370 employees. So he is constrained to rely on them,
pursuant to the Arias doctrine. However, SC insisted in holding him liable because
charged in conspiracy with others who examined, reviewed and he is charged to have foreknowledge of the facts and circumstances that should
prepared falsified documents for the transaction. have alerted him on the irregularities. CA found Cesa negligent for tolerating the
illegal practices on cash advances because he approved the paymasters requests
Issue: Is the head officer liable for the acts of the subordinate officer? for cash advances based on pieces of paper without any particulars and without
diligent supervision over them. Arias ruling is inapplicable because Cesa was not
Held: The mere signature of the head of office who had to rely to a charged with conspiracy. What was proven was that his negligence in carrying out
reasonable extent on the competence and good faith of his subordinates his duties as city treasurer contributed to giving Badana the opportunity to
malverse more than P18M in public funds. SC was silent on this portion of the
is not an evidence of conspiracy. decision of CA but since SC affirmed CA decision, by implication, SC sustained the
reasoning of CA on conspiracy.
To require the head of office to personally probe records, inspect
documents or investigate the motives of all individuals involved in the However, the requirement that there has to be conspiracy for one to invoke the
transaction before signing it is asking the impossible. There has to be Arias doctrine was only enunciated in CA. SC was silent on this portion of the CA
some added reason why the head of office should examine the decision but it did not expressly contradict SC. By implication, SC sustained the
reasoning of CA on conspiracy. SC affirmed the decision and only added the reason
documents in detail. Otherwise, he repeats the process all over again,
that Arias doctrine cannot be invoked (aside from the absence of conspiracy) was
defeating delegation and division of labor, which are good administrative because Cesa has foreknowledge of the facts and circumstances that should have
practices. alerted him to think twice before signing the documents.

Ferdie: If youre a head officer of an agency of the government, you are allowed In Cesa case, SC also cited another case which was about the registrar of deeds
to rely on the competence and good faith of the employees. Why are you allowed in Caloocan City and her Deputy registrar. There was a charge of conspiracy but
to rely? Because a document is presented to you for signature and it presupposes SC held that Arias doctrine is not applicable even if there was conspiracy because
that it has been reviewed by those under you. Thats why SC said they must be there was an added reason for him to be prompted. In that case, there were two
allowed to rely. Because if you dont rely, you will have to do everything. Nag-staff titles issued in one parcel of land.
pa ka.
Q: Should it be the superior who is charged or is it okay that the subordinate is
Because of the volume of documents that you have to sign, you have to rely to charged as long as there is conspiracy?
your subordinates for reviewing except when there is an added reason that
prompted you for reviewing the documents. A: When you are in conspiracy, you are charged the same, so it doesnt matter
who is charged. What matters is who can invoke the defense. Because only the
In this case, even though there was an alteration (snowfaked as used in the case) head or the chief officer can invoke the Arias doctrine, being the ones allowed to
and superimposition on the price of the land, it cannot be considered an added rely on the work of their subordinates.
reason to prompt Arias to review because, at that time, there was inflation and
sudden surge of the fair market value that made the price of P80/sq.m. no longer
surprising. Thats why SC said there was nothing special about that and it is to be TERMINATION OF RELATIONS
expected.
MODES OF TERMINATION
Aside from that, it would appear that Arias was not really part of the conspiracy
because when he came to the picture, the deal was done. As a matter of fact, MODES OF TERMINATION
everybody did not know him. His act of signing was merely ministerial.
1. End of Term
2. Retirement
Except: When there is no allegation of conspiracy among the
3. Abolition of Office
superior and subordinates
4. Reorganization
Cesa v. Ombudsman 5. Abandonment
Facts: Under a city treasurer are 5 department heads and 370 6. Incompatible Office
employees, one of whom is a paymaster who malversed at least 18M 7. Resignation
pesos of public funds. The City Mayor filed an administrative case 8. Removal
against paymaster. But the Ombudsman impleaded city treasurer for 9. Recall
neglect of duty. 10. Prescription

The city treasurer argues he could not be held liable because he does END OF TERM
not approve cash advances. Invoking the Arias doctrine, he said he had
to rely on his subordinates by virtue of division of labor and delegation END OF TERM
of functions.
Loss of confidence by the appointing authority serves as
Issue: Whether Arias doctrine can be invoked by the city treasurer. expiration of term.
Fernandez v. Ledesma
Held: The City treasurer is still liable for neglect of duty because his lack Facts: The chief of police was replaced by the president with another
of supervision contributed to the malversation of public funds. As a pursuant to the city charter that allows him to remove appointed officers
matter of fact, he approved paymasters requests based on papers in the city at his pleasure or discretion, except the municipal judge who
without particulars. may be removed only for cause provided by law.

The public officials foreknowledge of facts and circumstances that Held: If the creation and tenure of office is expressly made dependent
suggested an irregularity constitutes an added reason to exercise upon the pleasure of the appointing authority, the appointment has no

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

fixed term. As such, replacement does not amount to removal but RETIREMENT
expiration of term.
RETIREMENT
Ferdie: This case no longer applies insofar as the facts of the case. Today, the
chief of police do not derive their appointment from the municipal president; they
have security of tenure already. They do not serve at the pleasure of the Retirement of government employees is imposed by law and is
appointing authority. What is alive in this case is the principle that says if you serve not a result of any contractual stipulation.
at the pleasure of the appointing authority and the appointing authority loses trust
in you that is not termination but the end of term of office. Beronilla v. GSIS
Facts: Beronilla changed his year of birth from 1898 to 1900 which was
If the appointing authority says, I lost trust and confidence in you that is the end approved by the GSIS general manager. Thus, the proceeds of his
of term not termination. When the law says, nobody can be removed except for insurance policy was re-computed, maturity date and value were
cause provided by law, that cause is the loss of confidence. adjusted. He also paid additional premium.
Q: How about appointed officials whose appointment was confirmed by
Sanggunian?
But later it was found out that he had been paid salaries and fringe
benefits despite lapse of his compulsory retirement age. Thus, the GSIS
A: Were talking here only about political appointees like cabinet secretaries; they
serve at the pleasure of the President. Even others that are appointed by the
Board of Trustees resolved to supersede the decision of the general
President, it does not depend upon his liking or upon his loss of trust and manager that allowed change of year of birth.
confidence. There has to be security of tenure and you can only be removed for
cause provided for by law and loss of trust and confidence is not the one referred Contention of Beronilla: He argued it impaired the obligations of the
to in so far as their appointments. The principle that loss of confidence by the contract between him and the GSIS regarding his retirement.
appointing authority serves as expiration of the term of office only applies to
political appointees. Held: The constitutional injunction against impairment of obligations of
Q: Are you familiar with courtesy resignation?
insurance contracts can only be directed against legislation and not
resolutions of government agencies. Retirement of government
A: Cabinet secretaries, they are political appointees by the President. They serve employees is imposed by law and is not a result of any contractual
at the pleasure of the President. What if the President wants to revamp the cabinet
but he is hesitant. Some of them are his friends, so hes hesitant to terminate.
stipulation.
What he does is to ask everyone to tender courtesy resignation to give the
president a free hand to choose which one to retain and which one to fire. Ferdie: The defense here was that the GSIS Board of Trustees cannot supersede
the decision of the general manager in so far as to change the birth year of the
employee. According to him, there is a constitutional prohibition against the
The loss of trust and confidence must be on the part of the impairment of obligation of contracts.
appointing authority.
SC said that you cannot invoke that against a mere resolution of a government
Hernandez v. Villegas agency. It can only be available as a remedy against an act of Congress. Meaning
Facts: The Director for Security of the Bureau of Customs was removed there has to be that piece of legislation because retirement benefits is not a result
and transferred as Arrastre Superintendent without cause. Respondents of a stipulation of contract but by a positive act of legislation.
argued that the transfer is allowed because the position is primarily
confidential as it coordinates functions of security, patrol and
ABOLITION OF OFFICE
investigation.

Primarily confidential, policy-determining and highly technical positions ABOLITION OF OFFICE


are excluded from the merit system and their dismissal is at the pleasure
of the appointing authority. Thus, the Director can be removed and Manalang v. Quitoriano
transferred with or without cause. Facts: The Placement Bureau was expressly abolished by law organizing
its replacement, the National Employment Service. Manalang, the
Held: The position is not primarily confidential. The only authority to Bureau Director was expected to be appointed Commissioner but Labor
classify it as such is the President. The constitution merely exempts Secretary Quitoriano was appointed. Manalang argued there is no
these positions from the civil service requirement that appointments abolition of office but a mere fading away of the title Placement Bureau
must be made on the basis of merit and fitness as determined by and all its functions are continued by the National Employment Service.
competitive examinations. Hence, he continues to occupy it by operation of law. As such, the
appointment of Quitoriano is illegal because it amounted to his removal
As such, they can only be suspended or removed for cause as may be from office without cause.
provided by law. And that cause is loss of confidence. If they are
terminated on ground of loss of confidence, it is not removal but Held: Removal presupposes that the officer was ousted from office prior
expiration of the term of office. to term end and that the office still exists after the ouster of the
occupant. It is not the case in point. A law expressly abolished the
Ferdie: In this case, the transfer was through the decision of the Secretary of Placement Bureau. Thus, the Office of the Director is impliedly abolished
Finance. It was not the Presidents authority. This is now the issue because the
director served at the pleasure of the President who is the appointing authority.
because it cannot exist without the bureau. The abolition of the office
Therefore, it is only also the President that has the power to say I have lost trust likewise abolished the right of the occupant to stay. There is no removal,
and confidence in you. Because he can only be removed and transferred for cause but abolition by express legislative act.
and that cause includes loss of trust and confidence. But who loses trust and
confidence? It is only the president, the appointing authority. Ferdie: SC said that there was an express abolition provided for under the law.
Manalang was not terminated but his office was abolished. When you say transfer,
that presupposes from one place to another. It cannot be from one place to the
same place, otherwise it is not transfer anymore. Granting that Manalang was
merely transferred, where is now the office? It is gone.

If there is no evidence of bad faith in the abolition of office, the


termination does not result in removal, but a result of abolition.
Facundo v. Pabalan & Ulep vs Carbonell
Facts: Facundo is an eligible market collector while Ulep is a non-eligible
clerk. The municipal council resolved to abolish their positions because
14 | U N I V E R S I T Y O F S A N C A R L O S S L G
ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

they are unnecessary, useless and redundant. But on the same day, years or become incapacitated to discharge the duties of their office.
another resolution was passed creating 4 positions for policemen. They The Supreme Court en banc shall have the power to discipline judges of
argued the resolution abolishing their offices illegally terminated them. lower courts, or order their dismissal by a vote of majority of the
Members who actually took part in the deliberations on the issues in the
Held: While it appears the abolition is tainted with politics, the positions case and voted thereon.
created by one resolution are entirely different from the positions
abolished by another resolution. Thus, there is no evidence of bad faith. Reorganization by abolition does not result in unlawful removal
Ulep could not invoke his right against removal without cause because from office
he was not removed, but his office was abolished. Thus, it does not
matter whether he is civil service eligible, non-civil service eligible, or Dela Llana v. Alba
eligible-in-waiting. Facts: Dela Llana is a lower court judge who challenged the
constitutionality of BP 129 reorganizing the judiciary. He argued it
Ferdie: Good faith or bad faith can only be measured in the actions of the violates his security of tenure because he holds office during good
appointing authority. Although it makes a lot of sense that they invoke political behaviour until he reaches compulsory age of retirement or is
maneuvers, there was no evidence. SC was not prepared to declare bad faith. incapacitated.

Abolition of office in bad faith is null and void hence it results Held: Reorganization of lower courts does not violate security of tenure
in unlawful termination. of its occupants because there is no removal but abolition of their
Cruz v. Primicias offices.
Facts: Cruz and other are civil service eligible provincial clerks. By virtue
Ferdie: Take note that abolition is just a concrete manifestation of reorganization.
of authority from the provincial board, the governor issued an executive
order reorganizing his office and the provincial board to promote
The power of the president to reorganize his office does not
economy, efficiency and simplicity. It abolished the positions of clerks
include the power to create one.
but created positions for the governors confidential staff.
Biraogo v. Truth Commission & Lagman vs Albano
Held: The issue is not removal but validity of the abolition of their offices. Facts: President Aquino created the truth commission to investigate
It is null because it clearly serves personal or political ends or to graft and corruption cases allegedly committed under the Arroyo
circumvent security of tenure. No economy. Of the 72 positions administration.
abolished, 50 were vacant and the 22 occupied positions were paid
P25,000 per semester. Whereas the 28 new positions were paid P43,000 Held: While the law grants the president continuing authority to
per semester. There is no need for more efficiency because there is no reorganize his office, it does not include the power to create an office.
complaint for inefficiency filed. As a matter of fact, they were all
promoted before due to efficiency. Reorganization involves:
Ferdie: The best evidence of bad faith is when the Governor said that his office
1. Reduction of personnel
is political in nature and as such, it must be filled out by people loyal to the 2. Consolidation or
governor. 3. Abolition of offices by reason of economy or redundancy.

Abolition of office presupposes clear intention to do away with Thus, it presupposes that an office existed prior to alteration. It is not
it wholly and permanently. an exercise of power of control because it involves the power to modify,
alter, nullify or set aside the decision of a subordinate. It does not
Busacay v. Buenaventura include the power to create an office.
Facts: A toll collector was laid off when the bridge was totally destroyed
by flood. When it reopened, he was replaced because accordingly, his The power to create a public office is:
position is temporary and the total collapse of the bridge abolished it. A. Legislative, or
B. Validly delegated by Congress or
Held: The total collapse of the bridge merely suspended the position, C. Inherent duty to faithfully execute laws.
because there is no intention to do away with it wholly and permanently.
When it reopened, the position was automatically restored. Ferdie: But in this case, the inherent duty to faithfully execute laws was invoked
by the solicitor general in favor of the office of the president. But it was not taken
Ferdie: There has to be an act of Congress or probably the provincial board or
into consideration by the SC because the SC was actually blinded by the fact that
the municipal council to abolish the position. Bottomline: Force majeure does not
it violated the equal protection clause of the Constitution because it singled-out
abolish an office.
the Arroyo administration.

REORGANIZATION Something about exam question: If by reason of economy, economy alone is not
dependent upon the number of positions abolished or created, look at something
REORGANIZATION else.

Dario v. Mison The power to create an office is the power of the legislative or validly delegated
Facts: Cory Aquino reorganized the Bureau if Customs. Thus, Mison by Congress. However, when we go to administratively law, there is going to be
terminated 394 customs officials and employees but replaced them with the power of the president to create an office, not in the office of the president
522 new employees. but in the executive department. They are different. Also, the truth commission is
a violation of the equal protection clause.
Held: Reorganization is valid if done in good faith. There is
reorganization if personnel are reduced, offices consolidated or Bad faith in reorganization per R.A. 6656 (Acts that protect
abolished by reason of economy or redundancy. No economy, 394 were Security of Tenure)
replaced with 522 new employees. No reorganization, but mere change
of personnel. A. Significant increase in the number of positions

Qualifications are continuing requirements Dario v. Mison


Article VIII, 1987 Constitution Section 11 Replacement of 394 eligible employees with 522 new employees
The Members of the Supreme Court and judges of lower courts shall negates economy as justification for reorganization.
hold office during good behaviour until they reach the age of seventy

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

Cruz v. Primicias Held: There is no doubt about the right to hold office during good
Replacement of 22 occupied positions at P25,000 per semester behaviour until he reaches maximum retirement age of 70 years or
with 28 new positions at P43,800 per semester negates economy becomes incapacitated. But it can be waived through abandonment. If
as justification for reorganization. the officer discharged the functions of his new position and received
salaries for it, he is considered to have abandoned his former position
B. An office is abolished and replaced with another without right to repossess.
performing substantially the same functions.
Other acts constitutive of abandonment
Facundo v. Pabalan, Ulep v. Carbonell
Facts: The offices of a market collector and local civil registrar clerk Unabia v. City Mayor
were dissolved and replaced with 4 positions for policemen. It Facts: A foreman was removed by the city mayor without investigation
appeared that the market collector and local civil registrar clerk and cause. But he filed a petition for quo warranto to recover his position
were removed via abolition of their offices because of their political a year and 15 days after.
affiliation.
Held: Inaction or failure to recover position for an unreasonable length
Held: Although the reorganization is tainted with politics, the of time constitutes abandonment.
Supreme Court said that was not prepared to declare it an abuse
of power because the dissolved positions and the newly created Zandueta v. de la Costa
positions performed entirely different functions. It would have been Facts: A judge accepted another appointment, discharged its functions
struck down as done in bad faith had both offices performed and received salaries.
substantially the same functions.
Held: He abandoned his office without right to repossess if the new
C. Incumbents are replaced with less qualified in terms of appointment was disapproved.
status of appointment, performance and merit
Cruz v. Primicias INCOMPATIBLE OFFICE
Replacement of eligible clerks who were once promoted for
efficiency with confidential employees whose only qualification is INCOMPATIBLE OFFICE
loyalty to the governor negates efficiency as justification for Incompatibility is found on the character of the offices and their relation
reorganization. to each other, in the subordination of one to the other, and in the nature
of the functions and duties which attach to them. It requires the
D. Reclassification with substantially the same functions as involvement of two government offices or positions which are held by
the original offices one individual at the same time.

E. Removal violates order of separation provided in Sec 3 It exists where:


1. Casual employees serving less than 5 years 1. There is conflict and interference in the duties and functions
2. Casual employees serving 5 or more years 2. One is subordinate of public policy
3. Temporary employees 3. The law, for reasons of public policy, declares the incompatibility
4. Permanent employees even though there is no inconsistency in the nature and functions
of the offices.
Evidence of bad faith must be adduced, otherwise the
reorganization is sustained. Thus, Members of Congress are disqualified to hold any other office or
employment in the government.
Cotiangco v. Province of Biliran Ferdie: In the government only. But in the private sector, it can be allowed.
Facts: Permanent public health workers were terminated when their
offices were abolished due to reorganization which they claimed was They cannot hold 2 classes of office:
done in bad faith. 1. Incompatible office
2. Forbidden office
Held: Good faith is presumed. He who alleges otherwise has the burden
of proof. Instead of significant increase in positions, it decreased from
Incompatible office
120 to 98. The new positions created were for storekeepers that do not
Includes any kind of office or employment in the government, or any of
perform similar functions as health practitioners.
its subdivision, agency or instrumentality including GOCCs or their
They also failed to show: subsidiaries.
a) Reclassification of offices performing substantially similar
functions. Acceptance of the second office incompatible with the first ipso facto
b) Evidence they are better qualified in performance and merit than vacates the latter. Thus, a senator or congressman who accepts any
those who replaced them. other office or employment in the government during his term of office
c) Order of separation was violated, especially the provision that says forfeits his seat. While the holding of another office is allowed, he
those who are least qualified in terms of performance and merit automatically forfeits his elective post.
shall be laid off first, regardless of length of service.
An appointive officer is deemed ipso facto resigned upon filing of
ABANDONMENT candidacy for an elective position.

ABANDONMENT Forbidden office


Refers to any office created or the emoluments of which have been
Summers v. Ozaeta increased during the term for which he was elected, not merely during
Facts: A cadastral judge received, qualified and assumed an ad interim his tenure or actual incumbency.
appointment as judge-at large of first instance. But it was disapproved
by the Commission on Appointments. He argues he did not abandon his Ferdie: Example: Youre a congressman, you legislated to create an office and
former position because the constitution entitles him to hold office as you wanted to be appointed to that office. Is that allowed? Yes, but only after you
cadastral judge during good behaviour until he reaches mandatory have ended your term of office. But if you resign to be appointed then no. because
retirement age of 70 or becomes incapacitated. the prohibition extends until the last day of the term of office.

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

Ineligibility lasts until after end of term, not tenure. So, he is not eligible Except: If the public officer resigned before the administrative
to be appointed to the office created during his term even if he resigns case was filed and it is clearly shown that it was not intended
or loses his seat before end of term. to pre-empt its filing.

Terms of office Ferdie: The purpose of filing an administrative case is to discipline. If the
A fixed period of time during which the officer has a right to hold office employee has resigned already, it defeats the purpose because there is already no
one to discipline. But it depends on the time of resignation.

Tenure of office a. If he resigns before the filing of the administrative case The resignation
The period during which the incumbent actually holds office. moots the case.

b. If he resigned after The administrative case will still continue because it


RESIGNATION
cannot be pre-empted or mooted by mere expediency of resignation.
RESIGNATION What if you resigned before the filing of the case but you knew it was coming?
Things to remember: Still the administrative case can still continue. Take note that it should be not
A. Resignation is the formal renunciation of a public office. intended to pre-empt the administrative case.
B. If the law requires a particular form, it must be followed.
C. Where no such form is prescribed or particular mode required, it Ombudsman v. Andutan
may be made by any method indicative of the purpose. Facts: A deputy director of the finance department resigned after he
D. It need not be in writing, unless so required by law. was directed to vacate for being a non-career official. More than a year
E. It may be oral or implied by conduct. after he resigned however, he was administratively charged for
dishonesty, grave misconduct, falsification and prejudicial conduct.
Ferdie: It is not necessary for you to write a formal resignation unless expressly
required by law. It can be implied or constructive. Held: The ombudsman may still investigate an administrative offense
after a year it was committed. But if the public officer resigned before it
Resignation implied by conduct is filed, the administrative case is mooted and the accessory penalties
Triste v. Macaraeg could no longer be imposed. While it is true that the Supreme Court has
By applying for and receiving retirement benefits, one may be deemed held that resignation does not moot administrative cases, the public
to have irrevocably resigned from government service. officials involved in such cases resigned after the administrative cases
were filed against them. In those cases, it was intended either to
Gonzales v. Hernandez discontinue one already filed or pre-empt imminent filing of one. None
If resignation is conditional, there is no resignation at all due to lack of of which is present, because the director was forced to resign.
intention to relinquish the position. To constitute a complete and
operative act of resignation, there must be: Ferdie: He was forced to resign and he had no choice. Take note of the difference
from the earlier case.
A. Clear intention to relinquish, and
B. Acceptance by a competent and lawful authority.
REMOVAL
Ferdie: Example of conditional: I will resign, if that guy resigns.
REMOVAL
To whom tendered
1. To the one designated by statute Manalang v. Quitoriano
2. If not designated by law, to the officer or body having authority to Removal entails ouster of an incumbent before the expiration of his
appoint his successor or call an election. term. It implies that the office exists after the ouster. It may be express
or implied. Implied if
Acceptance a. Appointment of another officer
Acceptance is done by a formal declaration or appointment of successor b. Transfer to another office
Without it c. Demotion
a. The resignation is inoperative and ineffective d. Reassignment
b. The officer who abandons his office to the detriment of public
service is criminally liable. Power to appoint includes power to remove, where there is no
c. The offer to resign is revocable. fixed term

Withdrawal of resignation is allowed provided it is done before: Lacson v. Roque


a. Its intended date Limitations on the power to remove
b. It is accepted A. Purely executive officials with no fixed term are removable anytime
c. The appointing officer acts in reliance on it. with or without cause
Ferdie: What if you want to change your mind? You already resigned then you Ferdie: These are the persons who served at the pleasure of the appointing
say you wont resign anymore? Follow this. These are separate instances, they authority. But it is a misnomer to say that with or without cause. There is
may not concur. cause and it is the loss of confidence.

Effect of resignation on administrative case B. Civil service employees cannot be removed or suspended except
for cause as provided for by law.
OP & PAGC v. Cataquiz
Facts: Cataquiz was dismissed with accessory penalties of For cause means reasons which the law and sound public policy
disqualification and forfeiture. But he was already replaced with another recognize as sufficient ground for removal.
prior to his dismissal. The Court of Appeals thus disallowed the accessory
penalties because there is no more principal penalty of dismissal which
the accessories should follow.

Held: Removal or resignation is not a bar to the finding of administrative


liability. Hence, accessory penalties can still be imposed. (3-fold Rule)

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

Dismissal of criminal case does not bar removal in Election on recall


administrative case. Official sought to be recalled is automatically considered a candidate.
He is not allowed to resign while the recall process is in progress.
OP & PAGC v. Cataquiz
Facts: Cataquiz was recommended to be dismissed due to graft and If the incumbent official will win the recall election
corruption. Instead of acting on it, the president replaced him with It means that the recall election failed since it has been shown that the
another in an acting capacity. He was later dismissed by the president, people still have their trust and confidence on the incumbent.
disqualified to hold public office and forfeited of benefits.
If somebody else wins the recall election
But since the dismissal could no longer be enforced because of prior Then it means that the recall election succeeded, since it has been
replacement, the president removed the penalty of dismissal but shown that the people lost their trust and confidence on the incumbent.
reiterated disqualification and forfeiture.
Limitations on recall
Contention of Cataquiz: The Ombudsman dismissed the criminal cases 1. A local elective official may be subject of recall only once during his
against him involving the same set of facts. As such, it becomes the law term of office for loss of confidence
of the case between the parties which warrants dismissal of the 2. No recall within one year from date of assumption or before a
administrative charges against him. regular local election.
Held: The dismissal by the Ombudsman of the cases against him Regular local election
involving similar facts does not bar the president from removing him,
except if the acquittal is based on pure innocence. Angobung v. Comelec
For the time bar to apply, the approaching regular local election must
Impeachable officials can only be removed on the grounds be one where the position of the official to be recalled will be contested
enumerated in the Constitution. and filled by the electorate.
In Re: Gonzales, 160 SCRA 771 Paras v. Comelec
Facts: A chief justice was sought to be disbarred. The prohibition is due to the proximity of the next regular election where
the electorate can choose a replacement with longer tenure than the
Held: The Chief Justice is removable only by impeachment. Since he is successor elected through recall. Recall election is potentially disruptive
also required to be a member of the Philippine Bar, he cannot be of the normal working of a local government, aside from additional
disbarred during his incumbency. To grant disbarment circumvents expenses.
constitutional mandate that SC members can only be removed by
impeachment.
PRESCRIPTION
Ferdie: SC said that you cannot go by the back door. For you to remain a Chief
Justice you must possess the continuing qualifications and one of them is the PRESCRIPTION
membership of the Philippine Bar. Because if you disbar him, he will not have one
of the qualifications to become a Chief Justice and it cannot happen since justices
Unabia v. Mayor
can only be removed through impeachment. Bottomline: While they are sitting as Facts: On June 16, 1953, a foreman was removed and replaced by the
justices, you cannot file a disbarment case. city mayor without investigation and cause. On July 1, 1954, he filed
quo warranto to be reinstated.
REMOVAL
Held: He appears to have abandoned his position because it took him a
year and 15 days to file quo warranto. But since the law does not fix a
RECALL period for abandonment, prescription of action is the more appropriate
By this procedure, an elective official may be removed at any time during mode on how his official relations were terminated.
his term by the vote of the people at an election called for such purpose
Ferdie: It is not exactly abandonment because abandonment is based on the acts
Ferdie: Under the law, you need not be a voter for the recall election, but you
that constitutes abandonment. It does not pertain to the lapse of time.
can sign a petition for recall. Only my observation but do not bother about recall.

By whom Registered voters of the LGU to which the local elective Reasons for prescription
exercised official belongs
Ground Loss of confidence
Tumulak v. Egay
How By a petition, supported by the registered voters in the LGU Facts: In July 1946, a justice of the peace was replaced with another.
commenced concerned In August 1948, he filed a quo warranto case.

1. 25% if voting population is not more than 20k Held: The action prescribed. It is not proper that the title of a public
Subject to 2. 20% but in no case under 5K, if voting population is at office should be subjected to continued uncertainty. Public interest
the % least 20K but not more than 75K requires that such right should be determined as soon as possible or
requirements 3. 15% but in no case under 15K, if voting population is
within reasonable time.
at least 75K but not more than 300K
4. 10% but in no case under 45K, if voting population is
more than 300K Effect of failure to assume office
Failure to assume vacates the office and terminates relations
1. Names, addresses and signatures of petitioners
2. Barangay, city or municipality, local legislative district Section 11. Failure to assume office of the Omnibus Election Code
Contents of and the province where the petitioners belong The office of any official elected who fails or refuses to take his oath of
the recall 3. Name of the official sought to be recalled office within six months from his proclamation shall be considered
petition 4. Brief narration of the reasons and justifications vacant, unless said failure is for a cause or causes beyond his control.
Thus, the allegation of loss of confidence is not sufficient

Where filed Comelec through its field office in the local government unit
concerned

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

Criminal liability for failure to assume office 10. Conviction of a crime involving moral turpitude
Article 234. Refusal to discharge elective office. Arresto mayor or a 11. Improper or unauthorized solicitation of contributions from
maximum 1,000 fine or both. subordinate employees and by teachers or school officials from
school children
Elements: 12. Violation of existing Civil Service Law and rules or reasonable
1. Offender is elected by popular election to a public office office regulations
2. Refuses to swear or discharge duties of office 13. Falsification of official document
3. Without legal motive 14. Frequent unauthorized absences or tardiness in reporting for
Legal motive means legal justification. duty, loafing or frequently unauthorized absences from duty
during regular office hours.
Reason why it is punished 15. Habitual drunkenness
Discharge of duties not only becomes a matter of right, but a matter of 16. Gambling prohibited by law (Even if legal but there are specific
duty. prohibition against government officials to gamble in casinos)
17. Refusal to perform official duty or render overtime service
ADMINISTRATIVE DISCIPLINE 18. Disgraceful, immoral, or dishonest conduct prior to entering the
service. (Refers to the concealment of prior conduct)
OVER PRESIDENTIAL APPOINTEES 19. Physical or mental disability due to immoral or vicious habits
20. Borrowing money by superior officers from subordinates or
lending by subordinates to superior officers.
DISCIPLINE OVER PRESIDENTIAL APPOINTEES
21. Lending money at usurious rates or interest
22. Willful failure to pay just debts or willful failure to pay taxes due
The SC has exclusive administrative control and supervision
to the government
over all court personnel even if they are presidential
23. Contracting loans of money or other property from persons with
appointees.
whom the office of the employee concerned has business
Ferdie: The argument here is, the power to appoint includes the power to remove. relations.
But here, there is an expressed separation of constitutional powers between the 24. Pursuit of private business, vocation or profession without the
president and the judiciary. The power of the president to appoint but the power permission required by Civil Service rules and regulations
to remove does not pertain to the president, it is with the SC. 25. Insubordination
26. Engaging directly or indirectly in partisan political activities by
Dolalas v. Ombudsman one holding a non-political office.
Undue delay in the disposition of a case is administrative in nature. As 27. Conduct prejudicial to the best interest of the service
such, it pertains to the exclusive jurisdiction of the SC. 28. Lobbying for personal interest or gain in legislative halls and
offices without authority. (3rd degree of consanguinity or affinity)
Maceda v. Vasquez 29. Promoting the sale of tickets in behalf of private enterprises that
But falsification of certificates of service is not only criminal for the are not intended for charitable or public welfare purposes and
falsification but also administrative for serious misconduct and even in the latter cases if there is no prior authority
inefficiency. As such, the ombudsman must defer action and refer it to 30. Nepotism
the SC to determine if he acted within his scope of duties.
Section 59. Nepotism.
Ferdie: Take note, the exclusive power is with the SC in so far as discipline of the
court personnel is concerned.
(1) All appointments in the national, provincial, city and municipal
governments or in any branch or instrumentality thereof,
OVER NON-PRESIDENTIAL APPOINTEES including government-owned or controlled corporations, made
in favor of a relative of the appointing or recommending
DISCPLINE OVER NON-PRESIDENTIAL APPOINTEES authority, or of the persons exercising immediate supervision
Book V, EO 292 or the Revised Administrative Code over him, are hereby prohibited. As used in this Section, the
word "relative" and members of the family referred to are those
Section 46. Discipline: General Provisions related within the third degree either of consanguinity or of
(a) No officer or employee in the Civil Service shall be suspended or affinity.
dismissed except for cause as provided by law and after due process.
(2) The following are exempted:
(b) The following shall be grounds for disciplinary action: (pertains to a. Persons employed in a confidential capacity
appointive officers) b. Teachers
c. Physicians, and
1. Dishonesty d. Members of the AFP
2. Oppression (if grave oppression, then dismissal. If not, then only
suspension) Provided however,
3. Neglect of Duty That in each particular instance, full report of such appointment
4. Misconduct shall be made to the Commission.
5. Disgraceful and immoral conduct
6. Being notoriously undesirable (requisites are notoriety and habit) The restriction mentioned in subsection (1) shall not be
7. Discourtesy in the course of official duties applicable to the case of a member of any family who, after his
8. Inefficiency and incompetence in the performance of official or her appointment to any position in an office or bureau,
duties contracts marriage with someone in the same office or bureau,
9. Receiving for personal use of a fee, gift or other valuable thing in in which event the employment or retention therein of both
the course of official duties or in connection therewith when such husband and wife may be allowed.
fee, gift, or other valuable thing is given by any person in the
hope or expectation of receiving favor or better treatment than (3) To give immediate effect to these provisions, cases of previous
that accorded other persons, committing acts punishable under appointments which are in contravention hereof shall be
the anti-graft laws. (Minimal amount is allowed especially during corrected by transfer, and pending such transfer, no promotion
special occasions)
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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

or salary increase shall be allowed in favor of the relative who 5. Culpable violation of the Constitution
are appointed in violation if these provisions. 6. Dishonesty, oppression, misconduct in the office, gross
negligence or dereliction of duty
IMPEACHMENT 7. Commission of any offense involving moral turpitude or an
offense punishable by at least Prision Mayor
IMPEACHMENT 8. Abuse of authority
Section 2, Article XI, 1987 Constitution 9. Unauthorized absence for 15 consecutive working days except
Sanggunian members
The President, the Vice-President, the Members of the Supreme Court,
10. Application for, or acquisition of foreign citizenship, residence or
the Members of the Constitutional Commissions, and the Ombudsman
status of immigrant
may be removed from office on impeachment for, and conviction of,
culpable violation of the Constitution, treason, bribery, graft and
Form and Filing of administrative complaints
corruption, other high crimes, or betrayal of public trust. All other public
officers and employees may be removed from office as provided by law, Form verified complaint
but not by impeachment. Where filed Office of the President - elective official of a province,
HUC, Independent component city component city.
A method of national inquest into the conduct of public men.
Purpose: To protect the people from the official delinquencies. It is not Take note: Decisions of the OP are final and executory, unless there is
to punish but only to remove an officer who does not deserve to hold grave abuse of discretion.
office.
Administrative Appeals
Impeachment is limited to removal from office and disqualification to
hold public office, without prejudice to filing of appropriate cases. Thus, When filed 30 days from receipt of decision
jeopardy is not a defense.
Where filed -
Impeachment is beyond the president's power of executive A. Sangguniang Panlungsod of component city or Sangguniang
clemency Bayan Sangguniang Panlalawigan
The disqualification is perpetual. B. Sangguniang Panlalawigan and Sangguniang Panlungsod of HUC
and independent component city Office of the President
Impeachable officials
1. President PREVENTIVE SUSPENSION
2. Vice-president Who suspends
3. Members of the SC A. President in case of elective official of province, highly
4. Members of the Constitutional Commissions urbanized city or independent component city
5. The Ombudsman
Hagad v. Dadole
Important: The list is exclusive. But with concurrent jurisdiction with the Ombudsman.

Grounds for Impeachment Ferdie: SC said in the Hagad Case that the LGC 1991 did not repeal the
1. Culpable violation of the constitution Ombudsman Act of 1989 in so far as the jurisdiction to discipline elective
2. Treason officials HUC is concerned. Concurrent.
3. Bribery
B. Governor elective official of a component city or municipality
4. Graft and Corruption
C. Mayor elective official of a barangay
5. Other high crimes
6. Betrayal of Public trust
When any time after issues are joined
Betrayal of public trust
Basis for Preventive Suspension
Gonzales v. OP Evidence of guilt is strong.
Betrayal of public trust refers to any form of violation of oath of office
even if it is not a criminally punishable offense. Nera v. Garcia
Disciplining authority decides when evidence of guilt is strong.
Too broad, thus SC clarified this definition. It refers to "acts which are
just short of being criminal but constitute gross faithlessness against TN: Prior hearing is not required in preventive suspension because it is
public trust, tyrannical abuse of power, inexcusable negligence of duty, not a penalty and will not violate due process
favouritism, and gross exercise of discretionary powers"
Reasons for preventive suspension
Acts that constitute betrayal of public trust as to warrant removal from 1. Given the gravity of the offense, there is great probability that
office may be less than criminal but must be attended by bad faith and continuance in office
of such gravity and seriousness as the other grounds for impeachment. 2. Influence the witnesses
3. Pose a threat to the safety and integrity of the records and other
OVER LOCAL ELECTIVE OFFICIALS evidence (tinker the evidence)

DISCIPLINE OVER LOCAL ELECTIVE OFFICIALS Limitations


Section 60, Local Government Code A. Single case not beyond 60 days
B. Multiple cases not more than 90 days
Grounds for disciplinary actions C. Within a single year or on the same grounds existing and known
An elective local official may be (do not memorize) during first suspension
1. Disciplined Ferdie: The reason for the limitation is because if the suspension is indefinite,
2. Suspended or it might already be a suspension or removal from office.
3. Removed from office
4. Disloyalty to the Republic

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

Salary of Respondent Pending Suspension Held: It is true that the framers intended to withhold prosecutorial
powers from the Ombudsman. However, they also did not hesitate to
Ganaden v. CA
recommend legislation to prescribe its other powers, duties and
A public official preventively suspended is not entitled to salary during
functions.
suspension. However, if exonerated and reinstated, he must be paid
his full salary and other emoluments.
Section 13(8), Article XI empowers it to exercise such other powers and
perform such other functions or duties as Congress may legislate. Thus,
Rights of Respondent
the Ombudsman Act of 1989 was enacted granting it power to prosecute
including power to investigate.
1. Full opportunity to appear and to defend himself or by counsel
2. The party in an inquiry may or may not be assisted by counsel
The jurisdiction of the Ombudsman over GOCCs is confined
and the body has no duty to furnish him with counsel
only to those with original charter.
3. Confront and cross-examine witnesses

Ferdie: Take note of Ang Tibay Case in so far as administrative proceeding is Khan Jr. v. Ombudsman
concerned. In administrative cases, it is enough that there is opportunity to be Facts: PAL officers were charged for violation of R.A. 3019 before the
heard. Ombudsman after they allegedly used their positions to secure a
contract for a company they were stockholders. They moved to dismiss
Execution Pending Appeal for lack of jurisdiction, saying PAL is a private entity and they were not
Appeal does not prevent decision becoming final and executory. public officers. It was denied because PAL is now a GOCC after its
controlling interest was acquired by the government through the GSIS.
If respondent wins an appeal
The period during which the appeal was pending shall be considered Held: The jurisdiction of the Ombudsman over GOCCs is confined only
as a period of preventive suspension. to those with original charters. While it is true that PAL is now a GOCC
after its controlling interest was acquired by the government through
If the appeal exonerates the GSIS, it has no original charter. It was originally organized as a
He shall be paid his salary and such other emoluments during the private entity seeded with private capital under the general corporation
pendency of the appeal (Ganaden v. CA) law.
Ferdie: Original charter is if there was a special law creating the GOCC.
THE OMBUDSMAN
A public officer may be dismissed from service for private and
JURISDICTION OF THE OMBUDSMAN personal acts.
Remolona v. CSC
JURISDICTION OF THE OMBUDSMAN
Facts: A postmaster was dismissed after found guilty of dishonesty for
faking the eligibility of his wife. He argued his dismissal violates due
The full administrative disciplinary authority of the
process because it was not for cause since the dishonest act was not
Ombudsman is not limited to recommendation. When public
committed in the performance of his official duties as postmaster.
officers are found at fault, it includes the power to remove,
suspend, demote, fine, censure and prosecute.
Held: A public officer may be dismissed from service for an offense not
Ombudsman v. CA & Armilla related to work or foreign to his performance of official duties because
Facts: DENR employees were suspended by the Ombudsman for simple dishonesty affects fitness to continue in office.
misconduct. They argued that the Ombudsman is without authority to
suspend them because its power is merely recommendatory pursuant Dishonesty defined
to Tapiador. Pagcor v. Rillorosa
As an administrative offense, dishonesty is defined as the disposition to
Held: The Tapiador ruling that says the power of the Ombudsman is lie, cheat, deceive, or defraud, untrustworthiness, lack of integrity in
merely recommendatory, is a mere obiter dictum. The term principle, lack of fairness and straightforwardness, disposition to
recommend in the Constitution should not be literally interpreted, but defraud, deceive or betray.
construed in tandem with the Ombudsman Act which vests full
administrative disciplinary authority from recommendation to Alfonso v. OP
implementation. It is the concealment or distortion of truth in a matter of fact relevant
to ones office or connected with the performance of his duties.
The Ombudsman is not intended to be passive, but an activist watchman
armed with the power to prosecute and take active role in enforcing
POWER TO INVESTIGATE ADMINISTRATIVE CHARGES
anti-graft laws.
POWER TO INVESTIGATE ADMINISTRATIVE CHARGES
The Ombudsman has the power to prosecute criminal cases
involving public officers, and it includes the power to conduct The administrative disciplinary authority of the Ombudsman is
preliminary investigation. not merely recommendatory, but mandatory.
Camanag v. Guerrero
Facts: The Ombudsman conducted preliminary investigation and found Ombudsman v. Beltran
probable cause against a BIR employee who was claimed to be a CPA Facts: An employee of the Tricycle Regulatory Office was dismissed by
by falsifying official documents and deputized the city prosecutor to file the Ombudsman after being found guilty of misconduct for failure to
and prosecute falsification charges. remit fees collected from tricycle drivers.

The employee argued that the Ombudsman has no power to prosecute Held: Ledesma v. Court of Appeals overruled a mere obiter dictum the
and conduct preliminary investigation because the Constitution merely Tapiador decision that says the administrative disciplinary authority of
empowered it to direct the officer concerned to take appropriate action the Ombudsman is merely recommendatory.
and recommend.

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

Article XI of the Constitution that directs the Ombudsman to recommend recommendation is not merely advisory in nature but mandatory
removal, suspension, fine, censure and prosecution of public officers within the bounds of the law.
found to be at fault should not be interpreted literally. When read with
the pertinent provisions of the Ombudsman Act, the full administrative The Military Ombudsman is not prohibited to perform other
disciplinary authority is mandatory, and not merely advisory. functions affecting non-military personnel. Thus, it has
jurisdiction to investigate police officers even if they are civilian
Acop v. Ombudsman personnel of the government. And there is no distinction
The constitutional powers of the Ombudsman are not exclusive. between the duty to investigate and the power to conduct
Congress is authorized to legislate additional powers hence it passed the preliminary investigation
Ombudsman Act of 1989 empowering the Ombudsman to directly
remove, suspend, fine, censure and prosecute public officers. Acop v. Ombudsman, Lacson v. Casaclang
Facts: Different composite teams of police officers were investigated by
Ombudsman v. CA the Deputy Ombudsman for the military for their involvement in the
Ombudsmans disciplinary authority covers the gamut of administrative rubout of 11 suspected members of the notorious robbery gang,
adjudication. It entails authority to receive complaints, investigate, hear, Kuratong Baleleng. They argued the duty of the Ombudsman to
summon witnesses, require documents, preventively suspend, investigate is separate and distinct from the power to conduct
determine and impose appropriate penalty. preliminary investigation which remains with the Special Prosecutor. The
Military Ombudsman has no jurisdiction over police officers because they
It is the real party-in-interest in administrative cases because it stands are civilian personnel of the government.
to suffer if decisions adverse to it attain finality. If deprived of
disciplinary authority, enforcement of its mandated functions as Held: Based on the deliberations of the framers, there is no distinction
protector of the people is defeated. between the duty to investigate and the power to conduct preliminary
investigation. There is also no showing that such power remains with
The word recommend is mandatory and the proper officer the Special Prosecutor.
whom it is coursed through has no choice but to enforce it.
Ferdie: If the Ombudsman orders the head office to suspend a person, the head
While there is an intention to withhold prosecutorial powers, it did not
office has no choice but to enforce it. hesitate to recommend legislation to add powers, functions and duties
of the Ombudsman. Hence, the Ombudsman Act of 1989 was passed
Ombudsman v. CA and Santos which made the Office of the Special Prosecutor an organic component
Facts: Santos is LTFRB special collection and disbursing officer who was of the Office of the Ombudsman. It also removed powers of the Special
dismissed by the Ombudsman for dishonesty after she was found by the Prosecutor and transferred them to the Ombudsman.
COA with a cash shortage. She went to the CA, saying that the
Ombudsman cannot directly dismiss her because its disciplinary power There is no evidence from the deliberation that the Military Ombudsman
is merely recommendatory. is prohibited from performing other functions affecting non-military
personnel.
The CA agreed with her. The Constitution provides, Direct the officer
concerned to take appropriate action against a public official or Sec. 31 of the Ombudsman Act authorizes the Ombudsman to designate
employee at fault, and recommend his removal, suspension, demotion, personnel of his office or deputize any prosecutor or government lawyer
fine, censure, or prosecution and ensure compliance therewith. RA 6770 to act as special investigator or prosecutor. Thus, the Ombudsman may
further provides or who neglects to perform an act or discharge a duty refer cases involving non-military personnel for investigation to the
required by law, and recommend his removal, suspension, demotion, Military Ombudsman.
fine, censure, or prosecution and ensure compliance therewith.
Ferdie: If there is a case filed against a police officer, it goes all the way to the
Ferdie: The word recommend is paired with ensure compliance therewith, that Deputy Ombudsman for the Military. And Ombudsman also have the power to
makes it mandatory. deputize.

It is only when the officer fails to act that the Ombudsman is empowered The School Superintendent has original jurisdiction over
to enforce and compel such officer to act. If RA 6770 empowered the administrative cases involving public school teachers. As such,
Ombudsman to directly remove, it should have placed the word the Ombudsman must yield, except, where there is estoppel.
enforce at the start of the provision or enforce its disciplinary
authority. Ferdie: If it is the public school teacher, then go to school superintendent which
has the original exclusive jurisdiction. The rationale here is to establish a standard
The office of the Ombudsman shall have disciplinary authority over all for public school teacher. Example of the second sentence: You file a counter-
elective and appointive officials of the Government and its subdivisions, affidavit with the Ombudsman, then you participated in the case. Then when you
lost, you will say Ombudsman has no jurisdiction. That is not allowed because you
instrumentalities and agencies, including Members of the Cabinet, local are estopped.
government, government owned or controlled corporation and their
subsidiaries, Ombudsman case
Facts: A public school teacher was charged with falsification, dishonesty
Held: Do not be too literal. Ledesma v Court of Appeals said that such and gave misconduct before the Ombudsman after he failed to produce
literal interpretation is too restrictive and inconsistent with the wisdom original copy of his TOR, which authenticity was denied by the school
and spirit behind the creation of the Office of the Ombudsman. The word registrar.
recommend as used in the Constitution and the Ombudsman Act
means that the implementation of the order to remove, suspend, He argues that the School Superintendent has exclusive jurisdiction over
demote, fine, censure and prosecute be coursed through the proper administrative cases against a public school teachers under the Magna
officer, and that officer has no choice but to enforce it. Carta for Public School Teachers.

Provided, that the refusal by any officer without just cause to comply Held: Magna Carta grants jurisdiction to the investigating Committee
with an order of Ombudsman to remove, suspend, demote, fine, censure headed by the School Superintendent over erring public school teachers.
and prosecute an officer or employee who is at fault or who neglects to But the Ombudsman Act likewise grants jurisdiction to the Ombudsman
perform an act or discharge a duty required by law shall be a ground for over acts or omissions that are contrary to law.
disciplinary action against said officer. This strongly indicates that

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

The Constitution empowers the Ombudsman to investigate acts or The Supreme Court required the Solicitor- General to comment since
omissions that appear to be illegal, unjust, improper or inefficient. any final resolution of the case is a matter of national concern. The Sol-
Gen said that while the LGC conferred on the Office of the President
Deloso v. Domingo disciplinary authority over local elective officials, such grant is not
Defined illegal act or omission of any official as any crime committed exclusive.
by a public officer, even if the act or omission is not related with the
performance of official duty. The LGC did not withdraw the power of the Ombudsman under the
Ombudsman Act conformably with the constitutional mandate. Indeed,
Ombudsman v. Estandarte there is nothing in the LGC that indicates it has, expressly or impliedly,
Rules that per Magna Carta for Public School Teachers, original repealed the pertinent provisions of the Ombudsman Act.
jurisdiction over administrative cases against public school teachers
pertains to the School Superintendent. Purpose is to impose a separate The two statutes are not so irreconcilable that compels the Court to
standard and procedural requirement for administrative cases involving uphold one and strike the other.
public school teachers. Thus, the Ombudsman must yield.
Congress is presumed to have known existing laws on the subject and
Except: When there is estoppel. not to have enacted conflicting statutes. Hence, doubts must be
resolved against implied repeal and the laws must be harmonized.
Ombudsman v. Galicia Sections 61 and 63 of the LGC of 1991 are parallel with Sections 61 and
In this case, Galicia is estopped because he was given due process and 63 of its precursor, the Government Code of 1983. In that law, the
he filed his counter-affidavit. It was only when the decision was adverse authority to investigate and preventively suspend elective local officials
to him that he raised the issue of lack of jurisdiction for the first time. was placed under the Minister of Local Government, until it became
concurrent with the Ombudsman, by virtue of the Ombudsman Act of
Alcala v. Villar 1989. The LGC of 1991 did not change the Government Code of 1983,
The public school teacher is estopped from questioning the jurisdiction except the substitution of the Minister of Local Government with the
of the Ombudsman because he was given sufficient opportunity to be Office of the President as having power of administrative discipline.
heard and he submitted his defenses.
Hence, the Ombudsman and the President have concurrent jurisdiction
CONCURRENT WITH THE OFFICE OF THE PRESIDENT to enforce administrative discipline on local elective officials of a highly
urbanized city.
CONCURRENT WITH THE OFFICE OF THE PRESIDENT
The President and the Ombudsman have concurrent authority
The Ombudsman and the President have concurrent to remove the Deputy and Special Prosecutor under certain
jurisdiction to enforce administrative discipline on local conditions.
elective officials of a highly urbanized city.
Gonzales v. Office of the President and Sulit v. Ochoa
Hagad v. Dadole Facts: Mendoza held hostage and killed foreign tourists because the
Facts: Local elective officials of a highly urbanized city were charged Ombudsman failed to act on his motion for reconsideration. The Incident
with falsification before the Ombudsman after they allegedly altered the Investigation and Review Committee recommended Deputy
amount in an appropriation ordinance without authority from the Ombudsman Gonzales for dismissal. The Office of the President found
Sangguniang Panlungsod. him guilty of gross neglect of duty and grave misconduct constituting
betrayal of public trust.
Ouano moved to dismiss, arguing that the Ombudsman has no more
jurisdiction over the administrative case because of the enactment of The IRC blamed Gonzales for not acting on the motion for
the Local Government Code of 1991. reconsideration filed by Mendoza for more than 9 months without
justification. Worse, they merely offered to review the motion for
Section 63 empowers the Office of the President to investigate and reconsideration when they received the demand of Mendoza to resolve
impose administrative sanctions against, and preventively suspend, it. They should have resolved it right away or suspended the
elective officials of a highly urbanized city. Ouano added that there is enforcement of dismissal.
nothing in the Constitution that gave the Ombudsman superior powers
than those of the Office of the President over elective officials. This aggravated the situation and triggered the collapse of the
negotiation. Thus, the IRC found Gonzales guilty of serious and
But the Ombudsman denied the motion to dismiss and recommend that inexcusable negligence and gross violation of the rule that motions for
Ouano be placed under preventive suspension. He went to the Regional reconsideration must be resolved within 5 days from filing.
Trial Court asking prohibition and injunction. Presiding Judge Dadole
restrained the Ombudsman. But the Ombudsman moved to dismiss. Meanwhile, Major Carlos Garcia, his wife and 2 sons were charged with
Dadole denied it, saying that the investigative power of the Ombudsman plunder and money laundering by Special Prosecutor Wendell Barreras-
under the Ombudsman Act is too general and vague whereas the LGC Sulit before the Sandiganbayan. Garcia moved to bail but was denied
provides more specific and well-defined grounds for administrative because there is strong prosecution evidence. But suddenly, Sulit sought
discipline. Thus, the LGC provides exception to the disciplinary authority approval of the plea bargaining agreement entered into with Garcia.
of the Ombudsman to investigate local elective officials.
The Sandiganbayan resolved that the change of plea is warranted and
Held: Section 21 of the Ombudsman Act grants the Ombudsman with the plea bargaining agreement complies with jurisprudential
disciplinary administrative authority over all elective and appointive requirements. Outraged by the back deal that could allow Garcia to get
officials except those removable by impeachment and members of off the hook, Congress investigated and recommended to the President
Congress. Whereas, Section 24 authorizes the Ombudsman to that Sulit be dismissed after filing of charges for acts or omissions
ly suspend any public officer under its investigation. amounting to betrayal of public trust.

But Section 61(a) of the LGC says that and administrative complaint The Office of the President initiated an administrative case against Sulit.
against any elective official of a province, a highly urbanized city, an But she invoked prematurity and lack of jurisdiction. Both Gonzales and
independent component city or component city shall be filed before the Sulit challenged the constitutionality of Section 8(2) of the Ombudsman
Office of the President. Act of 1989.

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

It says the deputy or special prosecutor may be removed from office by But Gonzales cannot be removed for acts that do not constitute betrayal
the President for any of the grounds for the removal of the Ombudsman, of public trust. The tragic hostage-taking incident was the result of a
and after due process. confluence of several unfortunate events including system failure of
government response. It cannot be solely attributed to what Gonzales
Issue: Whether the Office of the President has jurisdiction to exercise may have negligently failed to do for the quick and complete resolution
administrative disciplinary power over a deputy ombudsman or a special of the case, or in his error of judgment.
prosecutor who belong to a constitutionally- created Office of the
Ombudsman. The failure to immediately act on a request for early resolution is not,
by itself, gross neglect of duty amounting to betrayal of public trust. As
Held: While the disciplinary authority of the Ombudsman is extensive a matter of fact, Gonzales recommended it for final approval within 9
and covers all public officers except those removable by impeachment, days from receipt.
it is not exclusive.
True, it is the Sandiganbayan that determines the propriety of a plea
Section 8(2) of the Ombudsman Act says that the Deputy or Special bargain based on evidence. What the disciplinary authority determines
Prosecutor may be removed from office by the President for any of the is whether the special prosecutor considered the best interest of the
grounds for impeachment of the Ombudsman, after due process. government or was diligent and efficient in performing her prosecutorial
duty when she entered into a plea bargain. But she was found to be
Unquestionably, the Ombudsman has jurisdiction to discipline his or her inept and negligent in her duty for failing to build a strong case for the
own men. Also unquestionably, the President has concurrent authority government.
with the Ombudsman to remove the deputy and the special prosecutor
under certain conditions. Important: If the president is allowed to remove the deputy and
special prosecutor, it violates the independence of the Ombudsman. But
These conditions are: SC said that it does not necessarily violate. What we are trying to protect
here is political independence.
1. That it must be for any of the grounds for removal of the
Ombudsman.
But in so far as the power to remove is concerned, the deputy and
a. Culpable violation of the Constitution
special prosecutor, the President can do that. Provided, the ground for
b. Graft and corruption
removal is the same as grounds for impeachment and there is due
c. Other high crimes
process.
d. Bribery
e. Treason
f. Betrayal of public trust CONCURRENT WITH THE DOJ

2. That due process is observed. CONCURRENT WITH THE DEPARTMENT OF JUSTICE


The Ombudsman has concurrent jurisdiction with the
Section 8(2) is not unconstitutional. Removal of the Ombudsman by
Department of Justice.
impeachment is clear under the law but the removal of the deputy and
special prosecutor is not. As such, the express grant by Section 8(2) on Honasan v. DOJ Panel of Investigating Prosecutors
the President to remove a deputy and special prosecutor merely filled Facts: Honasan was charged with the crime of coup d'etat before the
the gap in law. The power to remove the deputy and special prosecutor DOJ pursuant to the Joint Circular between the Ombudsman and
is implied from the power of the president to appoint them.
Contention of Honasan: He argued that it is the Ombudsman that has
General rule: jurisdiction to conduct preliminary investigation because the imputed
All officers appointed by the president are removable by him. acts relate to his public office.

Except: When the law expressly provides otherwise. Like when the Should the case be filed, it should be with the Sandiganbayan and not
Constitution expressly separates the power to remove from the power the regular courts, because he receives Salary Grade 31 as senator.
to appoint.
Contention of the DOJ: It has jurisdiction to conduct preliminary
Examples: investigation pursuant to the Revised Administrative Code. Coup d'etat
is not directly related to his public office as a senator. The challenge
1. Supreme Court Justices are appointed by the President but against the constitutionality of the Joint Circular is misplaced.
removable by impeachment.
2. Judges of lower courts are appointed by he President but The jurisdiction of the DOJ is a statutory grant under the Administrative
removable by the Supreme Court. Code and is not derived from any of the provisions of the Joint Circular.
3. The Chairmen and Commissioners of the Constitutional Bodies, and Contention of the Ombudsman: The DOJ has jurisdiction because coup
the Ombudsman are appointed by the President but removable by d'etat falls under the Sandiganbayan only if it is committed in relation to
impeachment. the office.

The power to remove does not diminish the independence of the The DOJ has concurrent jurisdiction with the Ombudsman to conduct
Ombudsman because such independence refers to political preliminary investigation over public officials has been recognized in
independence only. Sanchez v. Demetriou and incorporated in rules on criminal procedure.
The Joint Circular need not be published because it is a mere internal
The terms of office, salary, appointments and discipline are reasonably arrangement between the DOJ and the Ombudsman and it neither
insulated from the whims of the politicians through prescribed term of 7 regulates nor penalizes conduct of persons.
years, prohibition against salary decreases and fiscal autonomy.
The jurisdiction over cases cognizable by the Sandiganbayan is
Espinosa v Ombudsman elucidated the independence of the concurrent with all investigatory agencies of the government duly
Ombudsman as having endowed with a wide latitude of investigative authorized to conduct preliminary investigation under the Rules of
and prosecutorial powers virtually free from legislative, executive or Criminal Procedure.
judicial intervention.

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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

The only qualification is that, the Ombudsman may take over the
PREVENTIVE SUSPENSION
investigation at any stage in the exercise of its primary jurisdiction.
While the Ombudsman has jurisdiction to investigate and prosecute any PREVENTIVE SUSPENSION
illegal act or omission of any public official, such authority is merely
primary and not exclusive. Lastimosa v. Vasquez
Facts: A public health nurse filed a criminal complaint for frustrated rape
and administrative complaint for immoral acts, abuse of authority and
INVESTIGATE ILL-GOTTEN WEALTH AFTER 2/25/1986 grave misconduct against a municipal mayor before the Office of the
Ombudsman. The graft investigator recommended dismissal for lack of
OMBUDSMANS POWER TO INVESTIGATE ILL-GOTTEN WEALTH evidence. But it was reversed on review by the Ombudsman who
Republic v. Sandiganbayan & Argana directed the Deputy Ombudsman to file the case of attempted rape with
The PCGG and the Ombudsman do not have concurrent jurisdiction to the regional trial court.
investigate cases of ill-gotten wealth. Instead, the jurisdiction of the
PCGG and the Ombudsman to investigate cases of ill-gotten wealth are Thus, the Deputy Ombudsman referred the case to the Provincial
separated by period of time. Prosecutor for filing with the regional trial court. The case was eventually
assigned to Asst. Provincial Prosecutor Lastimosa. She investigated the
For wealth ill-gotten before February 25, 1986, the PCGG has case and found that the mayor is liable for acts of lasciviousness only
jurisdiction. But thereafter, it pertains to the Ombudsman. and filed it with the municipal trial court.

When the deputy ombudsman learned no case for attempted rape was
OMBDUSMAN FOR THE MILITARY filed, it ordered Lastimosa to show cause why she should not be cited
in contempt for disobedience.
OMBUDSMAN FOR THE MILITARY
In the administrative case, she was placed under preventive suspension.
Jurisdiction of the Military Ombudsman over police officers Thus, she filed this certiorari and prohibition to set aside the orders to
file the attempted rape case, to explain why she should not be held in
Agbay v. Deputy Ombudsman for the Military
contempt and to place her under preventive suspension. She argued
Facts: On Sept. 7, Agbay was detained for touching the genitals of a
that the Ombudsman and the Prosecutor have concurrent authority to
minor while aboard a tricycle. On Sept. 8, a complaint for child abuse
investigate public officers.
was filed against him by the mother before the municipal trial court. On
Sept. 10, the lawyer demanded the police officers to release him since
When the Ombudsman first takes cognizance, it excludes the
they failed to deliver him to the proper judicial authority within 36 hours
Prosecutor. Thus, it must file the case in court because preparation and
from detention.
filing are part and parcel of preliminary investigation. As such, it must
not be referred or delegated. That she investigated just the same is
Agbay argued that the Military Ombudsman has no jurisdiction to act on
because the Ombudsman insisted. It has no jurisdiction because rape
a complaint against police officers because of the civilian character of
was not committed in relation to a public office. As such, it has no
the Philippine National Police. He also challenged the constitutionality of
authority to cite her in contempt, aside from prejudicial question, and
MC No. 14 insofar as it vests the Military Ombudsman with jurisdiction
place her under preventive suspension for disobedience.
to investigate all cases involving PNP personnel.
Held: The Ombudsman has the power to investigate and prosecute any
The Acop doctrine applies only to isolated cases involving non-military
act or omission of any public officer when such act or omission appears
personnel. The referral must not be wholesale or indiscriminate. MC No.
illegal, unjust, improper or inefficient. This power includes investigation
14 violates the clear intent and policy of the Constitution and the
and prosecution of any crime whether or not the acts or omissions relate
Ombudsman Act to maintain the civilian character of the police force. It
to, connected or arise from the performance of his duties. It is enough
also blurs the distinction between cases involving civilian and military
that the act or omission is committed by a public official.
personnel and negates the purpose of the creation of separate offices
for each.
In the exercise of this power, the Ombudsman is authorized to designate
or deputize prosecutors for assistance under his supervision and control.
Held: The Military Ombudsman has jurisdiction to investigate, including
Once deputized, the prosecutor cannot legally act on his own and refuse
personnel of the Philippine National Police. Acop ruled that the
to prepare and file the Information as directed. Any disobedience is
deliberation on the military ombudsman does not yield conclusive
contumacious pursuant to Section 15(g) of the Ombudsman Act granting
evidence that such deputy is prohibited from performing other functions
it power of contumacy.
and duties affecting non-military personnel.
The argument that she cannot be cited in contempt because her refusal
On the contrary, pertinent constitutional provisions reveal otherwise. It
arose out of an administrative, and not judicial proceeding has no merit.
says the Ombudsman may exercise powers and perform other functions
She herself said in another context that preliminary investigation is a
as may be prescribed by legislation. Thus, the Ombudsman Act was
quasi-judicial proceeding.
enacted, which Section 11 grants the Ombudsman supervision and
control over his office.
Section 21 of the-Ombudsman Act grants the Ombudsman disciplinary
authority over prosecutors. Section 22 authorizes the Ombudsman to
Section 31 empowers the Ombudsman to deputize and designate
preventively suspend any officer under investigation if in his judgment
personnel of his office, any prosecutor or state prosecutor to assist him
the evidence of guilt is strong, the charge involves dishonesty,
in the investigation and prosecution of certain cases. Accordingly, the
oppression, grave misconduct or neglect in the performance of duty,
Ombudsman may refer cases involving non-military personnel for
charges warrant removal and the continued stay may prejudice the case.
investigation by the deputy for military affairs. The issuance of MC No.
It continues until the case is terminated but not to exceed 6 months
14 is simply an exercise of the power to utilize its own personnel and to
except when the delay in the disposition is due to the fault, negligence
designate and deputize.
or petition of the respondent.

Prior notice and hearing are not required because preventive suspension
is not a penalty but a mere preliminary step in administrative
investigation. Buenaseda v. Flavier ruled that whether the evidence of
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ELECTION LAWS l Atty. Ferdinand Gujilde l For the exclusive use of EH 407 A.Y. 2015-2016

guilt is strong is left to the determination of the Ombudsman by taking


into account the evidence before him. Nera v. Garcia likewise ruled that
the disciplining authority is given the discretion to decide when the
evidence of guilt is strong. True, 90 days is based on jurisprudence. But,
it refers to cases where the law is either silent or expressly limits
suspension to 90 days,

When law is silent as to period of suspension, Section 13 of R.A. 3019


supplies to limit period to 90 days to prevent indefinite suspension. In
this case, she was suspended under Sec. 24 of the Ombudsman Act
expressly setting the maximum period of suspension to 6 months. The
contention of prejudicial question has no merit. The two cases arose out
of the same act or omission. They may proceed hand in hand, or one
over the other. Whatever order does not matter.
Ferdie: If you are deputize by the Ombudsman, you actions must be consistent
with the theory of the Ombudsman. Because in this case the Ombudsman wanted
here to file a Rape case. She didnt think it was rape. Ombudsman wanted to cite
her in contempt.

ENFORCEMENT OF DECISIONS

ENFORCEMENT OF DECISIONS

Appeal does not stay the execution of administrative decisions


of the Ombudsman penalizing dismissal or suspension.
Ganaden v. CA
Facts: NPC employees were charged with three administrative cases
before the Ombudsman for dishonesty, misconduct and acts inimical to
public service. They were found guilty of dishonesty and suspended for
one year. They moved to reconsider, but instead the penalty of
suspension was upgraded to dismissal. They appealed before the CA.

They argued that by virtue of their pending appeal with the Court of
Appeals, plus the fact that the CA granted their motion to amend to
include Transco as respondent, the decisions enforcing dismissal and
suspension are automatically stayed even without a restraining order.

Held: These cases are antiquated. The Ombudsman Rules of Procedure


allowing stay of execution pending appeal has been amended on
September 15, 2003 by Administrative Order No. 17.

It says the Ombudsman decision in administrative cases shall be


executed as a matter of course. An appeal shall not stop the decision
from being executor. In case the penalty is removal and suspension, and
the respondent wins such appeal, he shall be considered under
preventive suspension and paid the salary and other emoluments he did
not receive by reason of the suspension or removal.

Under this provision, a respondent penalized with suspension for more


than one month has the right to appeal. But the act of filing an appeal
does not stay the execution. The Ombudsman Rules of Procedure is
clear that an appeal does not stay execution.

Ferdie: The appeal does not stop the decision from becoming final and executory.
All acts of the public officer that appear to be illegal can be investigated by the
Ombudsman. You can file in any way. Even an anonymous letter. Even if there is
no complaint, the Ombudsman can act even if its just a newspaper report. They
should be an activist.

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