NOTES and REVIEWER

(For Final Exam)

I. LAW ON PUBLIC OFFICERS

Public Office - it is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by
law or enduring at the pleasure of the creating/appointing power, an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the benefit of the public.
Public Offices are created by the following:
1. Constitution
2. Legislative enactments (law/statute)
3. Local or Administrative Body’s legislations through authority conferred by the Legislature


They are created by:

The Constitution
Valid statutory enactments
Authority of law (Secretary of Department of Transportation and Communications v. Mabalot, G.R. No. 138200, Feb. 27,
2002)
What are the elements of a public office?
A: PILAC

1. Created by Constitution or by law or by somebody or agency to which the power to create the office has been delegated;
2. Invested with Authority to exercise some portion of the sovereign power of the State
3. The powers conferred and the duties to be discharged must be defined directly or impliedly by the Legislature or through
legislative authority;
4. Duties are performed Independently without control unless those of a subordinate.
5. Continuing and Permanent
(Fernandez v. Sto. Tomas, G.R. No. 116418, Mar. 7, 1995; Tejada v. Domingo, G.R. No. 91860, Jan. 13, 1992)
Q: President Benigno Aquino III issue Executive Order No. 1 creating the Philippine Truth Commission (PTC). The
legality of the creation of the PTC was assailed before the Supreme Court. The petitioners contend that the PTC is a
public office and thus the president is without authority to create it. It was further contended that the creation of a
public office lies within the province of the legislature. The Office of the Solicitor General (OSG) countered that the
creation of a fact‐finding body like the PTC is covered by the President’s power of reorganization under the
Administrative Code and the President’s power of control. The OSG likewise contends that Congress has delegated to
the President the power to create public offices by virtue of P.D. 1416, as amended by P.D. 1772.
Does the creation of the PTC fall within the ambit of the power to reorganize as expressed in Section 31 of the Revised
Administrative Code?
A: No. The provision refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions. These point to situations where a body or an office is already existent but a modification or alteration
thereof has to be effected. The creation of an office is nowhere mentioned, much less envisioned in said provision. To say that
the PTC is borne out of a restructuring of the Office of the President under Section 31 is a misplaced supposition, even in the
plainest meaning attributable to the term ‘restructure’‐an ‘alteration of an existing structure.’ Evidently, the PTC was not part
of the structure of the Office of the President prior to the enactment of Executive Order No. 1. (Biraogo v. Philippine Truth
Commission of 2010, G.R. No. 192935, December 7, 2010)
Q: Is the creation of the PTC justified by the President’s power of control.
A: No, control is essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former with that of the latter. Clearly, the power of control is
entirely different from the power to create public offices. The former is inherent in the Executive, while the latter finds basis
from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws. (Biraogo v. Philippine Truth
Commission of 2010, G.R. No. 192935, December 7, 2010)
Q: Can P.D. 1416 be used as justification for the President’s power to create public offices, particularly the PTC?
A: No, said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a delegation to then President Marcos of
the authority to reorganize the administrative structure of the national government including the power to create offices and
transfer appropriations pursuant to one of the purposes of the decree embodies in its last ‘Whereas’ clause: ‘WHEREAS, the
transition towards the parliamentary form of government will necessitate flexibility in the organization of the national
government.’
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Clearly, as it was only for the purpose of providing manageability and resiliency during the interim, P.D. No. 1416, as
amended by P.D. No. 1772, became functus oficio upon the convening of the First Congress, as expressly provided in Section
6, Article XVIII of the 1987 Constitution. (Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7,
2010)
Q: What then could be the justification for the President’s creation of the PTC?
A: The creation of the PTC finds justification under Section 17, Article VII of the Constitution, imposing upon the President
the duty to ensure that the laws are faithfully executed. The President’s power to conduct investigations to aid him in ensuring
the faithful execution of laws – in this case, fundamental laws on public accountability and transparency – is inherent in the
President’s powers as the Chief Executive. That the authority of the President to conduct investigations and to create bodies to
execute this power is not explicitly mentioned in the Constitution or in statutes does not mean that he is bereft of such
authority.
The Executive is given much leeway in ensuring that our laws are faithfully executed. The powers of the President are not
limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this
constitutionally‐mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts
and determine if the laws have been faithfully executed. It should be stressed that the purpose of allowing ad hoc investigating
bodies to exist is to allow an inquiry into matters which the President is entitled to know so that he can be properly advised
and guided in the performance of his duties relative to the execution and enforcement of the laws of the land. (Biraogo v.
Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010)

Q: What are the characteristics of a public office?

A:
1. It is a public trust.
2. It is not a property and is outside the commerce of man. It cannot be the subject of a contract.
3. It is not a vested right.
4. It cannot be inherited.
(Sec. 1, Art. XI, Constitution; Santos v. Secretary of Labor, G.R. No.L‐21624, Feb 27, 1968)
Q. What is the principle of "public office is a public trust?"
A: It means that the officer holds the public office in trust for the benefit of the people—to whom such officers are required to
be accountable at all times, and to serve with utmost responsibility, loyalty, and efficiency, act with patriotism and justice, and
lead modest lives. (Sec. 1, Art. XI, Constitution)
What does the concept "public office is not a property” mean?

A: It means no officer can acquire vested right in the holding of a public office, nor can his right to hold the office be
transmitted to his heirs upon his death. Nevertheless, the right to hold a public office is a protected right—secured by due
process and the provision of Constitution on security of tenure. (Santos v. Secretary of Labor, G.R. No.L‐21624, Feb 27,
1968)
Q: What are the classifications of government employment?

1. Career Service
2. Non‐career Service
What are included in the career service?

1. Open career positions for appointment to which prior qualifications in an appropriate examination is required
2. Closed career positions which are scientific or highly technical in nature;
3. Positions in the Career executive service;
4. Career officers other than those in the career executive service, who are appointed by the President;
5. Commissioned officers and enlisted men of the Armed Forces;
6. Personnel of GOCCs, whether performing governmental or proprietary functions, who do not fall under the non ‐
career service; and
7. Permanent laborers, whether skilled, semi‐skilled, or unskilled (Sec. 5, P.D. No. 807).

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Q. What are the distinctions between career service and non‐career service?