Professional Documents
Culture Documents
MENDOZA, JORGE BANAL, Chairman of the Special Investigation Committee on
Administrative Cases Against Elected Barangay Officials of the Quezon City
Council and ISMAEL A. MATHAY, JR., City Mayor of Quezon City,
petitioners, vs. BARANGAY CAPTAIN MANUEL D. LAXINA, SR., respondent.
G.R. No. 146875. July 14, 2003. *
DOCTRINE:
An oath of office is a qualifying requirement for a public office; It is only when the public
officer has satisfied the prerequisite of oath that his right to enter into the position becomes
plenary and complete; Pendency of an election protest is not sufficient basis to enjoin him
from assuming office or from discharging his functions.—To be sure, an oath of office is a
qualifying requirement for a public office; a prerequisite to the full investiture with the
office. It is only when the public officer has satisfied the prerequisite of oath that his right
to enter into the position becomes plenary and complete. However, once proclaimed and
duly sworn in office, a public officer is entitled to assume office and to exercise the functions
thereof. The pendency of an election protest is not sufficient basis to enjoin him from
assuming office or from discharging his functions. Unless his election is annulled by a final
and executory decision, or a valid execution of an order unseating him pending appeal is
issued, he has the lawful right to assume and perform the duties of the office to which he
has been elected.
FACTS:
Manuel Laxina took his oath and assumed office as the duly
proclaimed and elected barangay captain. Meanwhile, his rival
candidate, Fermo, filed an election protest and the latter was declared
as the winner by the trial court. Laxina filed a petition with the
COMELEC questioning the order and COMELEC annulled the order on
the ground that there were no good reasons to justify it. On October 27,
1999, a writ was issued ordering Fermo to vacate said position. He
refused. However, this did not stop respondent Laxina from the
discharge of his duties as the duly elected baranggay captain. Laxina
he held office in the SK-Hall and appointed two people to become his
secretary and treasurer.
COMELEC issued an alias writ of execution against Fermo but this was
still unsatisfied. Laxina was able to take his oath (again) on November
16, 1999. It was only on the following day that Fermo turned over all
the assets and properties of the barangay. On November 20, 1999, the
appointments of Laxina’s secretary and treasurer were ratified to
reflect the appointment date of November 1, 1999. Fermo's appointees
objected to this but they eventually agreed only if they were paid for
their services from November 1-7, 1999.
ISSUE:
Is the re-taking of an oath of office by a duly proclaimed but
subsequently unseated local elective official a condition sine qua non
to the validity of his re-assumption in office? (In other words, is the re-
taking of the oath a requirement before Laxina could do his duties as
barangay captain?)
HELD:
NO.
DOCTRINE:
All public officers and employees from the highest to the lowest rank are required to take an
oath of office which marks their assumption to duty; Those who have rendered services with
the government, without occupying a public office or without having been elected or
appointed as a public officer evidenced by a written appointment and recorded with the
Civil Service Commission (CSC), did so outside the concept of government service.—The
Court notes that Ferdinand did not take an oath of office prior to his rendition of
consultancy services for the Provincial Government of Nueva Ecija. All public officers and
employees from the highest to the lowest rank are required to take an oath of office which
marks their assumption to duty. It is wellsettled that an oath of office is a qualifying
requirement for public office, a prerequisite to the full investiture of the office. Ferdinand
was not required to take an oath of office because he rendered consultancy services for the
provincial government not by virtue of an appointment or election to a specific public office
or position but by a contractual engagement. In fine, those who have rendered services with
the government, without occupying a public office or without having been elected or
appointed as a public officer evidenced by a written appointment and recorded with the
Civil Service Commission, did so outside the concept of government service.
FACTS:
Petitioner Edward Thomas F. Joson (Joson) filed his AffidavitComplaint,3 dated
April 21, 2008, before the Ombudsman charging the respondents — Governor
Aurelio M. Umali (Governor Umali), Provincial Administrator Atty. Alejandro R.
Abesamis (Alejandro), Consultant Atty. Ferdinand R. Abesamis (Ferdinand),
Provincial Treasurer Edilberto M. Pancho (Pancho), and OfficerinCharge Ma.
Cristina G. Roxas (Roxas) of the Office of the Provincial Accountant, all of the
Province of Nueva Ecija, with the criminal offenses of Violation of Section 3(e) of
Republic Act (R.A.) No. 3019, otherwise known as the AntiGraft and Corrupt
Practices Act, and Unlawful Appointment, defined and penalized under Article 244
of the Revised Penal Code (RPC), docketed as OMBLC080315D, and offense of
Grave Misconduct, docketed as OMBLA080245D.
The filing of the above charges stemmed from the alleged appointment of
Ferdinand as ConsultantTechnical Assistant in the Office of the Governor of Nueva
Ecija.
In his affidavitcomplaint, Joson alleged that on July 2, 2007, the Province of
Nueva Ecija, represented by Governor Umali, entered into a contract of consultancy
with Ferdinand wherein the latter was appointed or employed as Consultant
Technical Assistant in the Office of the Governor. On February 28, 2008, Governor
Umali and Ferdinand entered into another contract of consultancy on February 28,
2008, wherein the former, representing the Provincial Government of Nueva Ecija,
again appointed or reemployed the latter in the same position. Joson asserted that
Governor Umali appointed Ferdinand despite his knowledge of the latter’s
disqualification for appointment or reemployment in any government position. He
claimed that Ferdinand was dismissed from the service as Senior State Prosecutor
of the Department of Justice for “conduct prejudicial to the best interest of the
service” pursuant to Administrative Order (A.O.) No. 14, dated August 27, 1998;
and that such penalty of dismissal carried with it his perpetual disqualification for
reemployment in the government service. According to Joson, because Ferdinand
was meted out the penalty of dismissal from service with all accessory penalties
attached to it and that he was never granted any executive clemency, his
appointment as legal consultant was unlawful, illegal and invalid being in violation
of the Administrative Code of 1987 and the Civil Service Law, Rules and
Regulations. Joson added that for the same reason as above, the twin contracts of
consultancy were likewise invalid and unlawful.
Joson further averred that the execution of the contract of consultancy, dated
February 28, 2008, was legally defective because its effectivity was made to retroact
to January 2, 2008 in violation of the rule that “[i]n no case shall an appointment
take effect earlier than the date of its issuance.”4 He argued that because no
consultancy contract existed from January 2, 2008 to February 28, 2008, Ferdinand
should not
have been paid any honorarium for his alleged services rendered during the said
period. With respect to the rest of the respondents, Joson asserted that they should
be held liable for the above charges considering that they processed the payment of
honoraria to Ferdinand arising out of the illegal and invalid contracts of
consultancy.
Joson also contended that the appointment of Ferdinand as consultant by
Governor Umali in spite of being disqualified to hold public office, and the payment
of his monthly honorarium from the coffers of the provincial government by the
other respondents, were done with manifest partiality, evident bad faith or gross
inexcusable negligence, giving unwarranted benefit to Ferdinand and causing great
and irreparable damage and prejudice to the taxpayers of the Province of Nueva
Ecija. In view of this, Joson submitted that the private respondents should be made
liable for violation of Section 3(e) of R.A. No. 3019. Joson added that Governor
Umali should also be held liable for violation of Article 244 of the RPC for
knowingly extending appointments to Ferdinand as legal consultant regardless of
the latter’s lack of legal qualification to the said position. Lastly, Joson asserted
that Governor Umali’s act of illegally and unlawfully hiring the services of
Ferdinand could be reasonably viewed as gross misconduct in office because such
act involved the transgression of some established and definite rules.
In his CounterAffidavit,5 Governor Umali responded that, the legal arguments
advanced by Joson in his affidavitcomplaint were fatally defective and had no basis
in fact and in law. He averred that the consultancy services rendered by Ferdinand
could not be considered as government service within the contemplation of law and,
hence, not governed by the Civil Service Law, Rules and Regulations. He pointed
out that under the twin contracts of consultancy, Ferdinand had been engaged to
render Jump sum consultancy services for a short duration of six (6) months on a
daily basis and had not been paid any salary or given any benefits enjoyed by
government employees such as PERA, COLA and RATA, but merely paid honoraria
as stipulated in the contracts.
Governor Umali argued that if Ferdinand was indeed appointed or reemployed
by the provincial government, as erroneously perceived by Joson, then there would
be no need for him to execute the second consultancy contract which was merely a
renewal of his previous contract of July 2, 2007. He submitted that the consultancy
contracts were mere agreements to render service and could not in themselves
create public office to which the Revised Omnibus Rules on Appointments and other
Personnel Actions would apply. To bolster his claim, Governor Umali cited the
Department of the Interior and Local Government (DILG) Opinion No. 72, Series of
2004, dated August 23, 20046 and DILG Opinion No. 100, Series of 2004, dated
October 14, 2004,7 wherein then DILG Secretary Angelo T. Reyes opined that a
consultancy service was not covered by the phrase “any office in the government.”
Governor Umali alleged that he could not be adjudged guilty of gross misconduct
because prior to his signing of the subject consultancy contracts, he sought the legal
opinion8 of the Provincial Legal Office which assured him that there was no legal
impediment in engaging the services of Ferdinand. He merely relied in good faith on
its advice, which he presumed to be in accordance with law and existing
jurisprudence.
Governor Umali averred that the true and actual date of the execution of the
second consultancy contract was January 2, 2008 as clearly shown by the effectivity
of the engagement of Ferdinand stated in paragraph 1 thereof. The said contract
was a renewal of the earlier contract, dated July 2, 2007, which expired on
December 31, 2007. He explained that the date of execution of the second contract
was inadvertently left blank and the secretary of the notary public, Mary Grace
Cauzon, mistakenly stamped the date of the notarial act, February 28, 2008, on the
said blank space on the first page of the contract supposedly pertaining to its date of
execution.
Ferdinand, on the other hand, posited in his CounterAffidavit, 9 dated June 16,
2008, that although his dismissal from government service was not yet final as his
motion for reconsideration had not yet been resolved by the Office of the President
at the time of his appointment, there was no way that his service contract with the
Provincial Government of Nueva Ecija could be construed as to create a public
office. He alleged that his engagements squarely fell within the ambit of contracts of
service/job orders under Section 2(a), Rule XI of the Civil Service Commission
Circular No. 40, Series of 1998. He insisted that he was not a government employee
and the specifics of his contracts were governed by the Commission on Audit (COA).
He adopted Governor Umali’s explanation anent the true date of execution of the
second consultancy contract.
In their Joint CounterAffidavit,10 Alejandro, Pancho and Roxas stressed that
they committed no infraction of the law in affixing their respective signatures in the
obligation requests and disbursement vouchers which authorized the payment of
honoraria in favor of Ferdinand for the consultancy services he rendered. They
explained that the signing of the obligation requests and disbursement vouchers
were done in the ordinary course of business and in the normal processing of the
said documents. They added that the charges against them were premature
considering that the payment of honoraria to Ferdinand had not yet been subjected
to post audit by the COA which had the sole authority and jurisdiction to suspend
or disallow disbursements of public funds.
On July 17, 2008, Joson filed his ReplyAffidavit 11 in amplification of his contentions
and arguments in his affidavitcomplaint. He further argued that by entering in the
subject consultancy contracts, Ferdinand became a government employee and a
public officer because he was holding a noncareer service position in accordance
with Section 9, Chapter 2, Title I, Book V of Executive Order (E.O.) No. 292 (the
Administrative Code of 1987).
ISSUE:
G.R. No. 164978. October 13, 2005. *
AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, JUAN PONCE ENRILE,
LUISA P. EJERCITOESTRADA, JINGGOY E. ESTRADA, PANFILO M. LACSON,
ALFREDO S. LIM, JAMBY A.S. MADRIGAL, and SERGIO R. OSMEÑA III,
petitioners, vs. EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO B.
ABAD, AVELINO J. CRUZ, JR., MICHAEL T. DEFENSOR, JOSEPH H. DURANO,
RAUL M. GONZALEZ, ALBERTO G. ROMULO, RENE C. VILLA, and ARTHUR C.
YAP, respondents.
Doctrine:
Constitutional Law; Appointments; Executive Department;Congress; The power to
appoint is essentially executive in nature, and the legislature may not interfere with the
exercise of this executive power except in those instances when the Constitution expressly
allows it to interfere.—The power to appoint is essentially executive in nature, and the
legislature may not interfere with the exercise of this executive power except in those
instances when the Constitution expressly allows it to interfere. Limitations on the
executive power to appoint are construed strictly against the legislature. The scope of the
legislature’s interference in the executive’s power to appoint is limited to the power to
prescribe the qualifications to an appointive office. Congress cannot appoint a person to an
office in the guise of prescribing qualifications to that office. Neither may Congress impose
on the President the duty to appoint any particular person to an office.
Same; Same; Commission on Appointments; Even if the Commission on Appointments
is composed of members of Congress, the exercise of its powers is executive and not
legislative.—Even if the Commission on Appointments is composed of members of Congress,
the exercise of its powers is executive and not legislative. The Commission on Appointments
does not legislate when it exercises its power to give or withhold consent to presidential
appointments. Thus: x x x The Commission on Appointments is a creature of the
Constitution. Although its membership is confined to members of Congress, said
Commission is independent of Congress. The powers of the Commission do not come from
Congress, but emanate directly from the Constitution. Hence, it is not an agent of Congress.
In fact, the functions of the Commissioner are purely executive in nature. x x x
Same; Same; Same; Considering the independence of the Commission on Appointments
from Congress, it is error for petitioners to claim standing in the present case as members of
Congress.—Considering the independence of the Commission on Appointments from
Congress, it is error for petitioners to claim standing in the present case as members of
Congress. President Arroyo’s issuance of acting appointments while Congress is in session
impairs no power of Congress. Among the petitioners, only the following are members of the
Commission on Appointments of the 13th Congress: Senator Enrile as Minority Floor
Leader, Senator Lacson as Assistant Minority Floor Leader, and Senator Angara, Senator
EjercitoEstrada, and Senator Osmeña as members. Thus, on the impairment of the
prerogatives of members of the Commission on Appointments, only Senators Enrile,
Lacson, Angara, EjercitoEstrada, and Osmeña have standing in the present petition. This
is in contrast to Senators Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in
protecting their perceived prerogatives as members of Congress, possess no standing in the
present petition.
Same; Same; Same; Congress, through a law, cannot impose on the President the
obligation to appoint automatically the undersecretary as her temporary alter ego.—The
essence of an appointment in an acting capacity is its temporary nature. It is a stopgap
measure intended to fill an office for a limited time until the appointment of a permanent
occupant to the office. In case of vacancy in an office occupied by an alter ego of the
President, such as the office of a department secretary, the President must necessarily
appoint an alter
ego of her choice as acting secretary before the permanent appointee of her choice could
assume office. Congress, through a law, cannot impose on the President the obligation to
appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether
temporary or permanent, holds a position of great trust and confidence. Congress, in the
guise of prescribing qualifications to an office, cannot impose on the President who her alter
ego should be.
Same; Same; Same; Ad interim appointments are extended only during recess of
Congress and are submitted to the Commission on Appointments for confirmation or
rejection, whereas appointments in an acting capacity may be extended any time there is a
vacancy and are not submitted to the Commission on Appointments.—In distinguishing ad
interim appointments from appointments in an acting capacity, a noted textbook writer on
constitutional law has observed: Ad interim appointments must be distinguished from
appointments in an acting capacity. Both of them are effective upon acceptance. But ad
interimappointments are extended only during a recess of Congress, whereas acting
appointments may be extended any time there is a vacancy. Moreover ad
interim appointments are submitted to the Commission on Appointments for confirmation
or rejection; acting appointments are not submitted to the Commission on Appointments.
Acting appointments are a way of temporarily filling important offices but, if abused, they
can also be a way of circumventing the need for confirmation by the Commission on
Appointments.
FACTS:
While Congress was in session, due to vacancies in the cabinet, then president
Gloria Macapagal-Arroyo (GMA) appointed Arthur Yap et al as secretaries of their
respective departments. They were appointed in an acting capacity only.
Senator Aquilino Pimentel together with 7 other senators filed a complaint
against the appointment of Yap et al. Pimentel averred that GMA cannot make
such appointment without the consent of the Commission on Appointment; that,
in accordance with Section 10, Chapter 2, Book IV of Executive Order No. 292,
only the undersecretary of the respective departments should be designated in
an acting capacity and not anyone else.
On the contrary, then Executive Secretary Eduardo Ermita averred that the
president is empowered by Section 16, Article VII of the 1987 Constitution to
issue appointments in an acting capacity to department secretaries without the
consent of the Commission on Appointments even while Congress is in session.
Further, EO 292 itself allows the president to issue temporary designation to an
officer in the civil service provided that the temporary designation shall not
exceed one year.
During the pendency of said case, Congress adjourned and GMA issued ad
interim appointments re-appointing those previously appointed in acting
capacity.
ISSUE: Whether or not the appointments made by ex PGMA is valid.
HELD: Yes. The argument raised by Ermita is correct. Further, EO 292 itself
provided the safeguard so that such power will not be abused hence the
provision that the temporary designation shall not exceed one year. In this case,
in less than a year after the initial appointments made by GMA, and when the
Congress was in recess, GMA issued the ad interim appointments – this also
proves that the president was in good faith.
It must also be noted that cabinet secretaries are the alter egos of the president.
The choice is the president’s to make and the president normally appoints those
whom he/she can trust. She cannot be constrained to choose the
undersecretary. She has the option to choose. An alter ego, whether temporary
or permanent, holds a position of great trust and confidence. Congress, in the
guise of prescribing qualifications to an office, cannot impose on the President
who her alter ego should be.
The office of a department secretary may become vacant while Congress is in
session. Since a department secretary is the alter ego of the President, the
acting appointee to the office must necessarily have the President’s
confidence. That person may or may not be the permanent appointee, but
practical reasons may make it expedient that the acting appointee will also be
the permanent appointee.
Anent the issue that GMA appointed “outsiders”, such is allowed. EO 292 also
provides that the president “may temporarily designate an officer already in the
government service or any other competent person to perform the functions of
an office in the executive branch.” Thus, the President may even appoint in an
acting capacity a person not yet in the government service, as long as the
President deems that person competent.