LAW ON PUBLIC OFFICERS (Chapters V-VI)
CHAPTER V: RIGHTS AND PRIVILEDGES OF PUBLIC OFFICERS
A. IN GENERAL
Rights incident to public office – the rights of one elected to office are, in general,
measured by the Constitution or the law under which he was elected or appointed.
When an office is created by statute, the rights of an officer elected thereunder are
measured by the statute except insofar as he may be protected by any provision of
the Constitution.
Rights as a citizen
a) Protection from publication commenting on his fitness and the like – the
mere fact that one occupies a public office does not deprive him of the
protection accorded to citizens by the Constitution and the laws. However,
by reason of the public character of his employment/office, a public officer
is, in general, held not entitled to the same protection from publications
commenting on his fitness, and the like, as is accorded to the ordinary
citizen.
b) Engaging in certain political and business activities – to guarantee high level
of service includes assuring the efficiency of its employees in the
performance of their tasks which may require public employees to suspend
or refrain from certain political/business activities, when such are reasonably
deemed inconsistent with their public status and duties.
c) the government must show that the restraints rationally relate to the
enhancement of the public service.
B. RIGHT TO COMPENSATION
Power of Congress to fix compensation
a) Power primarily but not exclusively legislative in character – if the office is a
constitutional one, the Constitution itself may provide the compensation, or
may entrust the matter to Congress. Constitutional restrictions are
sometimes imposed on the legislature as to fixing or charging
compensation.
b) Power may be delegated subject to statutory limitations – unless the
Constitution expressly or impliedly prohibits Congress from doing so, it may
delegate the power to other government bodies or officers (e.g. governor,
mayor, sangguniang bayan)
Compensation, not an element of public office
- it is not indispensable to an office, but merely incident thereto. It attaches to
the office itself and not to the officer.
- it is sometimes expressly provided that certain officers shall receive no
compensation, and a law creating an office without any provision for
compensation may carry with it the implication that the services are to be
rendered gratuitously.
- Objective: to enable public officials to give due attention to their official
duties and to perform them better.
Forms of compensation defined and distinguished
1. Compensation
o means pay for doing all that may be required whether it is in the
form of a fixed salary or wages, per diems, fees, commissions, or
perquisites of whatever character.
o it is distinguished from honorarium, as honorarium is given not as
a matter of obligation but in appreciation for services rendered; a
voluntary donation in consideration of services which admit of no
compensation in money.
2. Salary
o is the personal compensation to be paid to the public officer for his
services, it is generally a fixed annual or periodical payment
depending on the time and not the amount of service.
o It is distinguished from wages, as wages is given to officers of
lesser rank and paid per day or week. Salary on the other hand, is
given to officers of higher degree of employment than those to
whom wages are given. Furthermore, salary is regarded as
compensation per annum, whereas wages are paid day by day or
week by week.
3. Per diem
o is merely one forms of compensation granted to public officers
which is fixed, not as ordinarily by the year or by the month but by
the day. The compensation prescribed by law for public officers is
sometimes in the form of per diem allowance for days spent in the
performance of official duties.
o is a daily allowance given for each day to an officer or employee of
government who is away from her home base. It is intended to cover
the cost of lodging and subsistence of officers and employees when
the latter are on duty outside of their permanent station. Its usual
signification is as a reimbursement for extra expenses by the public
official in the performance of his duties.
o Could rightfully be considered a compensation or remuneration
attached to an office.
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LAW ON PUBLIC OFFICERS (Chapters V-VI)
o not deemed to be a salary within the Constitutional provision that no
change in the compensation of officers shall affect the salary of any
officer during his existing term. It is not a fee unless clearly classified
as such. So also, is an honorarium.
4. Fees
- where compensation is paid under the fee system, or on the basis
of the amount of business done, or of public money passing through
the officer’s hands, a maximum sum may be fixed beyond which the
officer is not to receive any emoluments.
5. Emoluments
o refers to the profits arising from the office, and that which is received
as compensation for services or which is annexed to the office as
salary, fees or perquisites.
o It does not refer to the fixed salary alone that is attached to the office
but it includes fees and compensation as the incumbent of the office
is, by law, entitled to receive.
o Allowances are included in the term “emoluments” (i.e.,
representation and transportation, housing, etc.)
Basis of right to compensation
1. Creation of law – the relation between an officer and the public is not the
creation of contract, nor is the office itself a contract. Hence, his right to
compensation is not the creation of contract. It belongs to him not by force
of any contract but because the law attaches it to the office.
2. Services rendered – after services have been rendered, the compensation
thus earned cannot be taken away by a subsequent law, but cannot recover,
as a rule, salary for a period during which he performed no services (no
work, no pay).
- General rule: a public officer is not entitled to compensation for services
rendered under an unconstitutional statute or provision thereof.
Exception: in the absence of a statute to the contrary.
3. Compensation fixed by law – in the absence of law granting such
compensation, the officer is presumed to have accepted the office
gratuitously.
4. Legal title to office – one who has no legal title to hold office is not entitled
to recover salary or compensation attached to the office.
5. Amount of compensation - the nature of an official’s position should be the
determining factor in the fixing of his/her salary.
- it is possible that a local government official’s salary may be less than that
prescribed for his grade since his salary depends also on the class and
financial capability of his or her respective local government unit. It is the
law which fixes the official’s grade.
6. Ex officio position – an ex officio position is part of principal office. It follows
that the official concerned has no right to receive additional compensation
for his services in the said position. The reason is that services are already
paid for and covered by the compensation attached to the principal office.
Recovery of compensation
- an action to recover the compensation attached to a public office belongs to
the person who has the true, rather than colorable, title to the office, for in
such action the title to the office is put in issue.
1. From the government
- De jure officer cannot recover that which has been paid to a de facto officer
unless the government continues to pay even after having received notice
of an adjudication in favor of the de jure. It is a matter of simple justice that
the emoluments must go to the person (de facto officer) who actually
rendered the services unless the contrary is provided.
- but where the government continues to pay the officer de facto after the
notice of adjudication of the protest in favor of the officer de jure, the latter
may recover from the government the amount so paid after such
adjudication and notice.
- In cases where there is no de jure officer, a de facto officer is legally entitled
to the emoluments of the office if he is:
o In good faith
o Has possession of the office
o Has discharge of the duties of said office
2. From the de facto officer
o a de jure officer may recover either from the government or the de facto
officer the amount paid to the de facto officer for services rendered by him
after notice of such adjudication of the title to the former.
o After the notice of adjudication in favor of the de jure officer, the de facto
officer is not entitled to keep what has been paid for services rendered.
o Also, where the tenure of the de facto was wrongful, the salary received by
such may be recovered.
o a de facto in good faith is entitled to the emoluments of the office.
3. From the intruder or usurper
o An intruder or usurper has no right to the salary or emoluments of the office.
He becomes liable to the de jure officer in an action for money he had
received.
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Salary not subject to garnishment
- Garnishment is a kind of attachment for reaching credits belonging to the
judgment debtor owing to him from a stranger to litigation.
- The salary of a public officer may not be subject of garnishment, attachment,
or order of execution, nor be seized before being paid to him, and
appropriated for the payment of his debts for the following reasons:
a. While the money is still in the hands of the disbursing officer, it
belongs to the Government;
b. Public policy forbids such practice since it would be fatal to the
public service;
c. the garnishment or attachment of an officer’s salary is tantamount
to a suit against the State in its own court, which is prohibited except
with its consent.
Agreements affecting compensation
a. Compensation
- is given not only for remuneration of services but also to enable the
incumbent to give due attention to his official duties and to perform them
better.
- Any agreement respecting such compensation is invalid as against public
policy if it tends to pervert such compensation to purpose other than that for
what it was intended. This rule specifically refers to unperformed services
and the salaries attached thereto and to those already performed which the
officer can validly disburse as he may see fit.
b. The following agreements are invalid:
1. Agreement to accept, or acceptance of less or other than legal
compensation – the compensation of a public officer is generally fixed by
law, and in an amount presumably sufficient to insure faithful and
satisfactory performance of the duties of the officer. Arrangements which
would jeopardize such performance are not regarded with favor.
- it is likewise invalid as against public policy a contract/agreement by a public
officer to render services for a different compensation than that provided by
law, whether the stipulated compensation is less than the legal allowance
or greater than the compensation fixed by law.
2. Sale, assignment, or barter of said compensation - there is added danger
that any assignment or future emoluments of a public office tends to impair
the efficiency of those holding the office and, in consequence, prejudice the
interests of the public.
3. Dividing compensation with others if it amounts to an anticipatory agreement
– if the agreement to divide the salary or other compensation of the office
with a partner amounts to an anticipatory assignment of the emoluments of
the office, it is invalid, in accordance with the principle of public policy which
forbids assignments of the salary or fees of a public officer before they are
earned.
Prohibition against diminution of salary
o Congress has absolute power to fix or alter the compensation of public
officers, except as provided by the Constitution.
o Congress may increase the salaries of Senators and House of
Representatives but such increase shall not take effect until after the
expiration of the full term of the members of the Senate and House of
Representatives approving such increase.
o The Constitution prohibits Congress from reducing the salary of the
following constitutional officers during their term or tenure in order to secure
their independence:
a. President and Vice-President
b. Chief Justice, Associate Justices of the Supreme Court, and judges
of lower courts
c. Chairmen and members of the Constitutional Commissions
d. Ombudsman and his Deputies
Prohibition against receiving additional, double, or indirect compensation
o No elective or appointive public officer or employee shall receive additional,
double, or indirect compensation, unless specifically authorized by law, nor
accept without the consent of the Congress, any present, emolument, office,
or title of any kind from any foreign government.
Pensions or gratuities shall not be considered as additional, double, or
indirect compensation. (Constitution, Article IX-B, Section 8)
o Purpose: to counter the evils of double compensation.
o The prohibition does not apply in the following cases:
a) The law, in certain instances, specifically authorizes payment where
it appears just and necessary
b) Additional compensation is received not from government or any of
its entities
c) In case of double appointments where there are 2 distinct offices,
the public officer may draw the salary attached to the 2nd position
only when law specifically authorizes him.
Free voluntary service to the government
o Definition: refers to services rendered by persons who are in government
without pay or compensation.
o Requirements for free voluntary service:
a) Issuance of an appointment document
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b) Fitness and suitability for the duties and responsibilities of the C. OTHER RIGHTS
particular position Rights under the Constitution
c) Compliance with the rule on nepotism o Right to self-organization
o Functions or services that volunteers can perform: o The right to protection of temporary employees – to prevent indiscriminate
a) Advisory dismissals of temporary employees and to see to it that their
b) Consultancy or counseling separation/replacement is made only for justifiable reasons.
c) Recommendatory o Freedom of members of Congress from arrest and from being questioned
d) Professional services o The right not to be removed or suspended except for cause provided by law
e) Staff work such as planning or research
f) Humanitarian Participation in prohibited activity or mass action
o Applicable laws and rules - the Code of Conduct and Ethical Standards for Prohibited concerted activity or mass action
Public Officials and Employees (Republic Act no. 6713) and the - refers to any collective activity undertaken by government employees either
Implementing Rules on: by themselves or through their employees’ organizations, with the intent of
a) Rewards and incentives effecting work stoppage or service disruption in order to realize their
b) Norms of conduct and ethical standards demands or force concessions, economic or otherwise, from their respective
c) Duties and obligations of public officers and employees agencies or the government.
d) Prohibitions and sanctions - allowed during outside of government office hours provided that it would not
e) enumerated in the Implementing Rules result in disruption of work. Otherwise, he shall be held administratively
f) Civil and criminal liability liable for the offense of conduct prejudicial to the best interest of the service.
o Exemptions - those who render free voluntary service are exempted from - government agencies shall not approve/warrant mass leave of absences
the following: substantially intended to enable employees to join or take part in prohibited
a) Filing of statements of assets and liabilities and net worth, and mass actions.
financial disclosures
b) Requirement of divestment Rights under the Civil Service Decree and the new Administrative Code
c) Eligibility requirements 1. The right to preference in promotion
d) Security of tenure a) vacancy occurs in a position in first level of Career Service – the
o Prohibitions - unless otherwise provided in the terms of their designations, employees in the department who occupy the next lower positions
volunteers are prohibited from: in the occupational group under which the vacant position is
a) Exercising supervisory functions over personnel classified, and in other functionally related occupational groups and
b) Exercising functions of positions involving national security who are competent, qualified and with the appropriate civil service
c) Having access to confidential or classified information unless eligibility, shall be considered for promotion.
authorized by proper authorities b) vacancy occurs in a position in second level of Career Service - the
d) Occupying regular plantilla positions employees in the governmental service who occupy the next lower
e) Having such services credited as government service and availing positions in the occupational group under which the vacant position
themselves of retirement benefits is classified, and in other functionally related occupational groups
f) Using facilities and resources of the office for partisan political and who are competent, qualified and with the appropriate civil
purposes service eligibility, shall be considered for promotion.
g) Receiving any pecuniary benefit such as honoraria, allowances, c) screening process in each department or agency – each
and other perquisites of office. department/agency shall evolve its own screening process in
accordance with standards and guidelines set by the Civil Service
Commission.

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d) vacancy not filled by promotion as provided above – the same shall
be filled by transfer of present employees in the government
service, by reinstatement, by reemployment of persons separated
through reduction in force, or by appointment of persons (e.g.
outsiders) with the civil service eligibility appropriate to the
positions.
e) right to appeal of qualified next-in-rank
2. The right to present complaints and grievances
- such complaints or grievances shall be resolved at the lowest
possible level in the department/agency, as the case may be, and
the employee shall have right to appeal to such decision to higher
authorities.
- in case any dispute remains unresolved after exhausting all the
available remedies under existing laws and procedures, the parties
may jointly refer the dispute to the Public Sector Labor Management
Council.
- in every local government unit, the local chief executive shall
establish a procedure to inquire into, act upon, resolve or settle
complaints and grievances presented by local government
employees.
3. The right not to be suspended or dismissed except for cause as provided by
law and after due process
4. Right to organize
NEXT-IN-RANK RULE
- one who is next-in-rank to a vacancy is given preferential consideration for
promotion to a vacant position, but it does not necessarily follow that he
alone and no one else can be appointed.
- Reason for rule: to apply the next-in-rank rule peremptorily would impose a
rigid formula on the appointing power contrary to the policy of the law that
among those qualified and eligible, the appointing authority is granted
discretion and prerogative of choice of the one deems fit for appointment.
PERSONNEL ACTIONS
- refers to any action denoting movement or progress of personnel in the civil
service which must be in accordance with the rules or standards
promulgated by the Civil Service.
- Personnel actions include the following:
a) Appointment through certification
- an appointment through certification to a position in the civil
service, except as otherwise provided, shall be issued to a
person who has been selected from a list of qualified
persons certified by the Civil Service Commission from an
appropriate register of eligible (i.e., list of names of those
who passed competitive examinations), and who meets all
other requirements of the position.
b) Promotion
- it is the advancement from one position to another with an
increase in duties and responsibilities as authorized by law
and usually accompanied by an increase in pay.
- the movement may be from one department/agency to
another or from one organization unit to another in the
same department/agency.
- any increase in salary should only be considered incidental
but never determinative of whether or not promotion is
being bestowed upon an employee.
- employee is not compelled to accept a promotion since it is
a nature of a gift/reward which a person has right to refuse.
- among the factors that may be considered in the promotion
of a civil service employee are performance rating,
education and training relevant to the duties of the position
to be filled, work experience and outstanding
accomplishments, etc.
c) Transfer
- It is the movement from one position to another of
equivalent rank, level, or salary without break in service
involving issuance of appointment.
- it shall not be considered disciplinary when made in the
interest of public service. If employee believes that there is
no justification for the transfer, he may appeal his case to
the Commission.
- temporary transfer/assignment is permissible even without
employees consent but it cannot be where the transfer is
preliminary step toward his removal or is a scheme to lure
him away from his permanent position or designed
indirectly to terminate his service.
d) Reinstatement
- It means restoration to a state or condition from which one
has been removed or separated.
- the Commission has authority to order reinstatement to an
employee unlawfully demoted or dismissed
- the award of back wages is limited to a maximum period of
5 years.
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- mandamus does not lie when the reinstatement involves
the exercise of sound judgement and discretion by the
appointing power, absent a showing of clear and certain
right by a separated employee
e) Reemployment
- names of persons who have been appointed permanently
to positions in the career service and who have been
separated as a result of reduction in force and/or
reorganization, shall be entered in a list from which
selection for reemployment shall be made.
f) Detail
- it is the movement of an employee from one department or
agency to another without the issuance of appointment and
shall be allowed only for a limited period in case of
employees occupying professional, technical, and scientific
positions.
- if employee believes that there is no justification for the
detail, he may appeal his case to the Commission.
g) Reassignment
- it shall not involve a reduction in rank, status, or salary.
Otherwise, such reassignment constitutes constructive
removal and violate his security of tenure. It does not
require the issuance of an appointment.
h) Demotion
- movement from one position to another involving the
issuance of an appointment with diminution in duties,
responsibilities, status, grade or rank which may or may not
involve reduction in salary although usually accompanied a
decrease in salary.
- a demotion by assigning an employee to a lower/less
important position in the same service which has a lower
rate of compensation is tantamount to removal, if no cause
is shown for it.
Covered employees are entitled to the following benefits under GSIS:
a. Retirement benefits
b. Separation benefits
c. Unemployment or involuntary separation benefits
d. Disability benefits
e. Survivorship benefits
f. Funeral benefits
g. Life insurance benefits
Pension
- are regular allowances paid to an individual or group of individuals by the
government in consideration of services rendered, or in recognition of merit,
civil or military.
- partakes the nature of retained wages of the retiree for a double purpose:
(a) to entice or encourage faithful and competent employees to enter or
remain in the service; and (b) to allow employees incapacitated by
illness/accident to retire from service with a relative financial security thus
allowing younger and vigorous persons to take their place.
- the burden is in the government to show that an applicant is not qualified for
pension.
Pension and gratuity distinguished
- Gratuity is a donation and act of pure liberality on the part of the State.
Pension, on the other hand, is more than an act of generosity. It is an act
of justice emanating from the desire to provide, though tardily, adequate
compensation for services already rendered for which one had not received
complete and adequate reward at the time when services were rendered.
Retirement
- withdrawal from office public station, business, occupation, or public duty.
- nature and purpose of retirement plans:
o voluntary agreement between employer and employee whereby the
latter, after reaching a certain age, agrees/consent to severe his
employment with the former.
o retirement plans create a contractual obligation in which the
promise to pay the benefits is made in consideration of the
continued faithful service of the employee for the requisite period.
o before retirement benefits vests in an employee, he must have met
the conditions for eligibility
- General rule: liberally construed and applied in favor of the persons intended
to be benefitted by them. All doubts as to the intent of the law should be
resolved in favor of retiree.
Exception: the clear intent of the applicable law and rules are demonstrably
against the retiree’s claim.
- benefits cannot be withheld regardless of the employee’s monetary liability
to the government.
- computed on the basis of the highest salary, emolument and allowances
received.
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Right to reimbursement and indemnity
- when a public officer, in the due performance of his duties, has been
expressly or impliedly required by law to incur expenses on the public
account, not covered by his salary or commission and not attributable to his
own neglect or default, the reasonable and proper amount thereof forms a
legitimate charge against the public for which he should be reimbursed.
Right to reinstatement and back salary
- Reinstatement is the restoration to a state or condition from which one had
been removed or separated.
- Back Salary is a form of relief that restores the income that was lost by
reason of unlawful dismissal.
- where removal or suspension lawful
o an officer is not entitled to compensation for the period during which
he was so suspended or separated, even if it be subsequently
determined that the cause for which he was suspended was
insufficient.
o reason: salary and perquisites are the reward of express or implied
services, and therefore, cannot belong to one who could not lawfully
perform such services. This is true although reinstatement has been
duly authorized.
- where removal or suspension unlawful
o employee may recover and the amount he had earned in other
employment during his unlawful removal should not be deducted
from his unpaid salary. He may recover the full amount
notwithstanding that during the period of his removal/suspension,
the salary has been paid to another appointed to fill the vacancy
unlawfully created.
o “no work, no pay” principle does not apply here
o award to back wages is limited to a maximum of 5 years and not to
full back salaries from illegal dismissal up to reinstatement. But an
officer claiming back his office is not entitled to salary during the
pendency of the case.
- where suspended employee later found out innocent
o back pay is allowed for the period when an employee is not allowed
to work without his fault as when he was preventively suspended
for alleged dishonesty and gross negligence but later found
innocent of the charges causing his suspension.
- where employee not completely exonerated or reinstatement not the result
of exoneration.
o not entitled to payment of his back salaries.
- where another appointed to position of illegally dismissed/suspended
employee
o when a regular government employee was illegally suspended or
dismissed, legally speaking, his position never became vacant and
he is considered as not having left the office. The new appointment
is not valid.
- duty of plaintiff seeking reinstatement to former or at least comparable
position
o plaintiff must prove his right to the office. He must establish that
when he was dispossessed, he was entitled to the office. Unless
this right is shown, the action must fail even if the appointment of
the successor is first in issue.
- right to reinstatement of former or at least comparable position
o when a government official or employee has been illegally
dismissed, and his reinstatement has later been ordered, for all
legal purposes he is considered as not having left his office, so that
he is entitled to all the rights and privileges to accrue to him by virtue
of the office that he held.
o general rule: a person suspended or dismissed from the public
office through no fault of his own is entitled to be reinstated to his
former position or at least to a comparable position, if feasible.
- duty to act with reasonable diligence in asserting right to reinstatement
o a public officer/employee who has been removed from his position
must act with reasonable diligence to have himself reinstated for
however unjust and unwarranted the removal, suspension or
transfer of a public officer/employee may be, his right to
reinstatement may be lost by unreasonable delay in asserting his
rights.
o inaction for one year could be validly considered a waiver (e.g.
mandamus and quo warranto)
- where pardon extended to convicted employee
o general rule: does not ipso facto restore a convicted felon to public
office.
exception:
1. expressly grounded on the person’s innocence or
2. the right to public office is expressly restored.
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Rights to property, devices and inventions
- title to a public office carries with it the right, during the incumbency of the
officer, to the insignia and property thereof.
- devices or records are indispensable in the proper conduct of the office
o the officer may not take them as his own property even though he
has prepared them on his own time and paid for them with his own
funds.
- devices not required by law
o the officer may acquire a property right therein which will entitle him
to remove them upon leaving office.
Right to recover reward for performance of duty
- general rule: a public officer is not permitted to recover a reward offered by
the public for the performance of an act which was part of his official duties,
since this could contravene public policy.
exception: unless provided by law (e.g. informer on violation of National
Internal Revenue Code; discovery and seizure of smuggled goods).
CHAPTER VI: DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS
A. CONSTITUTIONAL PROHIBITIONS
I. Disabilities of President, Vice-President, Members of Cabinet, and their
Deputies and Assistants
a) They shall not hold, unless otherwise provided in the Constitution, any other
office or employment;
b) They shall not practice any other profession;
c) They shall not participate, directly or indirectly, in any business;
d) They shall not be financially interested, directly or indirectly, in any contract
with, or in any franchise or special privilege granted by the government or
any subdivision, agency or instrumentality thereof including any
government-owned or controlled corporation or their subsidiaries; and
e) They shall strictly avoid conflict of interest in the conduct of their office.
Purpose of the prohibitions:
a) to ensure that the officials mentioned will devote their full time and attention
to their official duties,
b) prevent them from extending special favors to their own private business
which comes under their official jurisdiction, and
c) assure the public that they will be faithful and dedicated in the performance
of their functions.
II. Disabilities of the members of the Congress
a) No senator or member of the House of Representatives may hold any other
office or employment in the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries, during his term without forfeiting his seat;
b) Neither shall he be appointed to any office which may have been created or
the emoluments thereof increased during the term for which he was elected;
c) No Senator or Member of the House of Representatives may personally
appear as counsel before any court of justice before the Electoral Tribunals,
or quasi-judicial and other administrative bodies;
d) Neither shall he, directly or indirectly, be interested financially in any contract
with, or in any franchise or special privilege granted by the Government, or
any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation, or its subsidiary, during his
term of office. He shall not intervene in any matter before any office of the
Government for his pecuniary benefit or where he may be called upon to act
on account of his office;
e) He shall not intervene in any cause or matter before any office of the
Government for his pecuniary benefit or where he may be called upon to act
on account of his office or to give his vote as a member of the Congress.
- (a) and (b) refer to the rights of members of Congress to hold any other
office or employment; while the (c), (d) and (e) refers to their right to engage
in certain activities.
III. Disqualifications to hold any other office or employment in the government
a) Incompatible office – this include any kind of office or employment in the
government, or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries
during his term. The phrase “Any other office or employment” includes any
position in the government outside of Congress, including ex-officio
membership of any non-congressional body, committee or commission in
any guise whatsoever, unless the second office or employment is connected
with or in aid of legislative duties.
- A Senator or Representatives who accepts any other office/employment in
the government during his term forfeits his seat.
- Purpose: Congress must devote their time and attention to the discharge of
their legislative responsibilities.
b) Forbidden office – this refers to any office created or the emoluments of
which have been increased during the term for which he was elected, not
merely during his tenure or period of actual insolvency.
- a member of Congress shall not be eligible for appointment to such office
even if he resigns or losses his seat before the end of the term. His
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appointment is void in view of his disqualification or lack of eligibility.
Therefore, he does not lose his elective post.
- Purpose: Without the prohibition, Congress might be tempted to create
offices or increase their emoluments for personal gain.
IV. Prohibition against financial interest
- this prohibition underscores the fiduciary nature of the position of a member
of Congress and thus lend effectiveness to the principle that public office is
a public trust.
a) Appearance as counsel before any court of justice, etc. – a member of
congress shall not appear personally as counsel before any court of justice
or before the electoral tribunals or quasi-judicial and other administrative
bodies.
b) Financial interest in any contract with the government – he shall not, directly
or indirectly, be interested financially in any contract with the government,
etc., during his term of office whether as an individual or as a member of a
partnership or as an officer of a corporation.
- does not extend to such contract entered into by a son/brother unless used
as dummy or the member is pecuniarily interested in the contract. Financial
interest in such contract by a spouse is indirect financial interest.
- Purpose: to prevent a member of Congress from using whatever influence
and pressure in the award of government contracts.
c) Financial interest in any special privilege by the government – He shall not,
directly or indirectly, be interested financially in any franchise or special
privilege granted by the government, etc., during his term of office.
d) Intervention in certain matter – he shall not intervene in any cause or matter
before any office of the government for his pecuniary benefit or where he
may be called upon to act on account of his office or to give his vote as
member of Congress.
V. Disabilities of members of Constitutional Commissions
a) No member of a Constitutional Commission shall, during his tenure, hold
any other office or employment.
b) Neither shall he engage in the practice of any profession or in the active
management or control of any business which in any way may be affected
by the functions of his office.
c) Nor he shall be financially interested, directly or indirectly, in any contract
with, or in any franchise or privilege granted by the government, any of its
subdivisions, agencies, or instrumentalities, including government-owned or
controlled corporations or their subsidiaries.
VI. Prohibition against designation of members of judiciary to administrative
positions
- The members of the Supreme Court and of other courts established by law
shall not be designated to any agency performing quasi-judicial or
administrative functions. (Article VIII, Section 12)
- Purpose of prohibition:
o violates the doctrine of separation of powers between the judicial
and executive branches of the government
o it may compromise the independence of the members in the
performance of their judicial functions; and
o will result to further delay in the disposition of cases.
VII. Prohibition against engaging in partisan political activities
- No officer or employee in the civil service shall engage, directly or indirectly,
in any electioneering or partisan political campaign. (Article IX-B, Section 2,
par. 4)
- Professionalism in the armed forces and other remuneration and benefits of
its members shall be a prime concern of the State. The armed forces shall
be insulated from partisan politics. No member of the military shall engage
directly or indirectly in any partisan political activity, except to vote. (Article
XVI, Section 5, par. 3)
VIII. Prohibition against appointment of elective officials
- No elective official shall be eligible for appointment or designation in any
capacity to any public office or position during his tenure. (Article IX,
Section 7)
IX. Prohibition against holding more than one position by appointive officials
- Unless otherwise allowed by law or by the primary functions of his
position, no appointing official shall hold any other office or employment in
the Government or any subdivision, agency or instrumentality thereof,
including, government-owned or controlled corporations or their
subsidiaries. (Article IX-B, Section 7)
X. Prohibition against acceptance of any present, etc. from any foreign state
- No elective or appointive public officer or employee shall xxx accept without
the consent of the Congress, any present, emolument, office, or title of any
kind from any foreign government. (Article IX-B, Section 8)
- this prohibition is founded in a just jealousy of alien influence in domestic
affairs.
- Purpose: to discourage and prevent foreign influence in the affairs of our
government. What is prohibited is the acceptance offered by the
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LAW ON PUBLIC OFFICERS (Chapters V-VI)
government of a foreign state. Thus, private/personal gifts from a king or
head of a foreign government is allowed.
XI. Prohibition against receiving additional, double, or indirect compensation
- No elective or appointive public officer or employee shall receive additional,
double or indirect compensation, unless specifically authorized by law xxx.
Pensions and gratuities shall not be considered as additional, double or
indirect compensation. (Article IX-B, Section 8)
XII. Prohibition against appointment of members of the armed forces to certain
positions
- No member of the armed forces in the active service shall, at any time, be
appointed or designated in any capacity to a civilian position in the
Government including government-owned or controlled corporations or any
of their subsidiaries. (Article XVI, Section 5, par. 4)
- Purpose: principle of civilian supremacy over the military.
XIII. Prohibition against grant of loan, guaranty, or other form of financial
accommodation
- No loan, guaranty, or other form of financial accommodation for any
business purpose may be granted, directly or indirectly, by any government-
owned or controlled bank or financial institution to the President, the Vice-
President, the Members of the Cabinet, the Congress, the Supreme Court,
and the Constitutional Commissions, the Ombudsman, or to any firm or
entity in which they have controlling interest, during their tenure. (Article XI,
Section 16)
- Purpose: prevent official from making use of their influence to secure such
loan, etc., to benefit them.
- only applies to any firm or entity in which any of the officials has a controlling
interest (at least 51%). It does not apply where the loan, etc., is not for
business purpose (e.g. housing loan).
B. PROHIBITIONS UNDER EXISTING LAWS
The Civil Service Decree provides the following: (PD 807)
a) Political Activity - No officer or employee in the Civil Service including
members of the Armed Forces, shall engage directly or indirectly in any
partisan political activity or take part in any election except to vote nor shall
he use his official authority or influence to coerce the political activity of any
other person or body. Nothing herein provided shall be understood to
prevent any officer or employee from expressing his views on current
political problems or issues, or from mentioning the names of candidates for
public office whom he supports: Provided, That public officers and
employees holding political offices may take part in political and electoral
activities but it shall be unlawful for them to solicit contributions from their
subordinates or subject them to any of the acts involving subordinates
prohibited in the Election Code.
b) Additional or Double Compensation- No elective or appointive public officer
or employee shall receive additional or double compensation unless
specifically authorized by law nor accept without the consent of the
President, any present, emolument, office, or title of any kind from any
foreign state.
c) Limitation on Employment of Laborers- Laborers, whether skilled, semi-
skilled or unskilled, shall not be assigned to perform clerical duties.
d) Prohibition on Detail or Reassignment- No detail or reassignment whatever
shall be made within three (3) months before any election.
e) Nepotism – all appointments in the national, provincial, city and municipal
governments or in any branch or instrumentality thereof, including
government-owned or controlled corporations, made in favor of a relative of
the appointing or recommending authority, or of the chief of the bureau or
office, or of the persons exercising immediate supervision over him, are
prohibited. As used in the law, the word “relative” and members of the family
referred to are those related within the third degree either of consanguinity
or of affinity.
- the prohibition is subject to exceptions.
Prohibitions imposed on LGU Officers
1. Business and Pecuniary interest
a) business transaction with local government unit in which he is an
official or employee over which he has the power of supervision, or
with any of its authorized board, official, agents, or attorneys,
whereby money is to be [paid or property or any other thing of value
is to be transferred directly or indirectly out of the resources of the
LGU unit to such person or firm.
b) cockpits
c) be a surety for any person contracting or doing business with the
local government unit for which a surety is required
d) purchase any forfeited real estate in favor of LGU for unpaid taxes
or by virtue of a legal process at the instance of the said LGU.
e) possess or use any public property of the local government unit for
private purposes.
f) all other prohibitions provided for under Code of Conduct and
Ethical Standards for Public Officials and Employees.
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LAW ON PUBLIC OFFICERS (Chapters V-VI)
2. Practice of Profession
- All governors, city and municipal mayors are prohibited from practicing their
professions or engaging in any occupation other than the exercise of their
functions as local chief executives.
- Sangguniang members may practice their professions, engage in any
occupation, or teach in schools except during session hours. However,
sangguniang members who are also members of the Bar shall not:
a) Appear as counsel before any court in any civil and criminal cases
case wherein a local LGU or any office, agency or instrumentality is
the adverse party
b) Collect any fee for their appearance in admin proceedings involving
LGU of which he is an official
c) Use property or personnel of government except when the SB
member concerned is defending the interest of the Govt
d) LGU official in medical profession may exercise profession even
during official hours of work during emergencies provided that the
officials concerned do not derive monetary compensation.
3. Partisan Political Activity
- no local official or employee in the career service shall engage directly or
indirectly in any partisan political activity or take part in any election,
initiative, referendum, plebiscite, or recall, except to vote, nor shall he use
his official authority or influence to cause the performance of any political
activity by any person or body.
- he may, however, express his views on current issues, or mention the
names of certain of certain candidates for public offer whom he supports.
- elective local officials may take part in partisan political and electoral
activities, but it shall be unlawful for them to solicit contributions from their
subordinates or subject those subordinates to any of the prohibited acts
under Omnibus Election Code.
Prohibitions against purchase of certain property in Public Auctions
- The following persons cannot acquire by purchase, even at a public or
judicial auction, either in person or through the mediation of another:
a) The guardian, the property of the person or persons who may be
under his guardianship;
b) Agents, the property whose administration or sale may have been
entrusted to them, unless the consent of the principal has been
given;
c) Executors and administrators, the property of the estate under
administration;
d) Public officers and employees, the property of the State or of any
subdivision thereof, or of any government-owned or controlled
corporation, or institution, the administration of which has been
entrusted to them; this provision shall apply to judges and
government experts who, in any manner whatsoever, take part in
the sale;
e) Justices, judges, prosecuting attorneys, clerks of superior and
inferior courts, and other officers and employees connected with the
administration of justice, the property and rights in litigation or levied
upon an execution before the court within whose jurisdiction or
territory they exercise their respective functions; this prohibition
includes the act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights which may be the
object of any litigation in which they may take part by virtue of their
profession.
f) Any others specially disqualified by law.
g) The prohibitions in the two preceding articles are applicable to sales
in legal redemption, compromises and renunciations.
Prohibitions imposed on the Governor and personnel of the Central Bank
a) Outside the interest of the Governor and Full-time monetary board members
o General rule: they may not accept any other employment, whether
public or private, remunerated or ad honorem
Exception: (1) position in eleemosynary, civic, cultural and religious
organization or (2) designated by the President
b) Personnel (refer to the book)
Prohibitions imposed on internal revenue employees/officers
- the NIRC imposes the penalty of fine, or imprisonment, or both, upon
conviction, or:
a) Unlawful divulgence of trade secrets (PD 1158 sec 269)
b) Unlawful interest of revenue law enforcers in business. (PD 1158
sec 270)
Prohibited acts and transactions under the Anti-Graft & Corrupt Practices Act
a) Influencing other public officer to perform an offense in connection with
official duties
b) Requesting or receiving any gift in connection with his official duties
c) Causing any undue injury to any party
d) Entering on behalf of the Govt into a contract to the disadvantage of another
e) Having financial or pecuniary interest in any business which is prohibited by
law
f) Becoming interested for personal gain in any transaction requiring the
approval of the board or company
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LAW ON PUBLIC OFFICERS (Chapters V-VI)
g) Approving or granting any license or permit in favor of any person known to
him to be not qualified or legally entitled to such license
Prohibited acts and transactions under the Code of Conduct and Ethical
Standards
1. Public officials and employees shall not, directly or indirectly, have any
financial or material interest in any transaction requiring the approval of their
office.
2. Outside employment and other activities related thereto. - Public officials
and employees during their incumbency shall not:
a. Own, control, manage or accept employment as officer, employee,
consultant, counsel, broker, agent, trustee or nominee in any private
enterprise regulated, supervised or licensed by their office unless
expressly allowed by law;
b. Engage in the private practice of their profession unless authorized
by the Constitution or law, provided, that such practice will not
conflict or tend to conflict with their official functions; or
c. Recommend any person to any position in a private enterprise
which has a regular or pending official transaction with their office.
These prohibitions shall continue to apply for a period of one (1) year after
resignation, retirement, or separation from public office, except in the case
of subparagraph (b) (2) above, but the professional concerned cannot
practice his profession in connection with any matter before the office he
used to be with, in which case the one-year prohibition shall likewise apply.
3. Disclosure and/or misuse of confidential information. - Public officials and
employees shall not use or divulge, confidential or classified information
officially known to them by reason of their office and not made available to
the public, either:
a. To further their private interests, or give undue advantage to
anyone; or
b. To prejudice the public interest.
4. Solicitation or acceptance of gifts. - Public officials and employees shall not
solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment,
loan or anything of monetary value from any person in the course of their
official duties or in connection with any operation being regulated by, or any
transaction which may be affected by the functions of their office.
The Ombudsman is mandated to prescribe such regulations as may be
necessary to carry out the purpose of the above provisions on gift, including
pertinent reporting and disclosure requirements.
Divestment (RA 6713, Sec 3, paragraphs f,g,I,j,k)
1. A public official or employee shall avoid conflicts of interest at all times.
When a conflict of interest arises, he shall resign from his position in any
private business enterprise within thirty (30) days from his assumption of
office and/or divest himself of his shareholdings or interest within sixty (60)
days from such assumption.
- The same rule shall apply where the public official or employee is a partner
in a partnership.
2. The requirement of divestment shall not apply to those who serve the
Government in an honorary capacity nor to laborers and casual or
temporary workers.
3. Under the Code:
a) "Conflict of interest" arises when a public official or employee is a
member of a board, an officer, or a substantial stockholder of a private
corporation or owner or has a substantial interest in a business, and the
interest of such corporation or business, or his rights or duties therein,
may be opposed to or affected by the faithful performance of official
duty.
b) "Substantial stockholder" means any person who owns, directly or
indirectly, shares of stock sufficient to elect a director of a corporation.
This term shall also apply to the parties to a voting trust.
c) "Divestment" is the transfer of title or disposal of interest in property by
voluntarily, completely and actually depriving or dispossessing oneself
of his right or title to it in favor of a person or persons other than his
spouse and relatives as defined in this Act.
d) "Relatives" refers to any and all persons related to a public official or
employee within the fourth civil degree of consanguinity or affinity,
including bilas, inso and balae.
e) "Family of public officials or employees" means their spouses and
unmarried children under eighteen (18) years of age.
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