CHAPTER 1 attaches, for the time being, to be exercised for the public benefit.

THE CONCEPT OF THE PUBLIC OFFICE Unless the powers conferred are of this nature, the individual is not a
public officer.
The Law on Public Officers deals with public office, its creation,
modification and dissolution, as well as the eligibility of public officers, Where an individual works under a public contract, his relations with
the manner of their election or appointment and assumption of office, the government are usually determined by the stipulations in the
their rights, duties, powers, inhibitions and liabilities, and the modes of agreement and not by the law of public officers. Said individual is
terminating their official relations. likewise not a public officer.

Definition
Under the revised Penal Code, however, for purposes of applying the
provisions thereof, any person who, by direct provision of the law,
A public office is the right, authority and duty, created and conferred
popular election or appointment by competent authority, shall take part
by law, by which for a given period, either fixed by law or enduring at
in the performance of public functions in the Government of the
the pleasure of the creating power, an individual is invested with some
Philippines Islands, or shall perform in said Government or in any of its
portion of the sovereign functions of the state to be exercised by him
branches public duties as an employee, agent or subordinate official, of
for the benefit of the body politic. The individual so invested is a public
any rank or class, shall be deemed to be a public officer.
officer.

According to Judge Cooley, “the officer is distinguished from the A private individual hired on a contractual basis as a project manager
employee in the greater importance, dignity and independence of his for a government undertaking is a public officer for purposes of the
position; in being required to take an official oath, and perhaps to give provisions of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019).
an official bond; in the liability to be called to account as a public
offender for misfeasance or nonfeasance in office, and usually,
The elements of a public officer are as follows:
though not necessarily, in the tenure of his position.”
(1) It must be created by law or by authority of law.
(2) It must possess a delegation of a portion of the sovereign
Officer refers to a person whose duties, not being clerical or manual
powers of government, to be exercised for the benefit of the
nature, involves exercise of discretion in the performance of the
public.
functions of the government. When used with reference to a person
(3) The powers conferred and the duties to be discharged must be
having authority to do a particular act or perform a particular function
defined, directly or impliedly, by the legislature or through
in the exercise of a governmental power, “officer” includes any
legislative authority.
government employee, agent or body having authority to do an act or
(4) The duties must be performed independently and without
exercise that function.
control of a superior power other than the law unless they be
those of an inferior or subordinate office created or authorized
The creation and conferring of an office involve a delegation to the
by the legislature, and by it placed under the general control of
individual of some of the sovereign functions of government, to be
a superior office or body.
exercised by him for the benefit of the public; that some portion of the
sovereignty of the country, either legislative, executive or judicial,
 (5) It must have some permanence and continuity and not be only
temporary or occasional.
A public office may be created by the Constitution, by statute or by
authority of law.
CHARACTERISTICS
Accordingly, to the Constitution, a public office is a public trust. This
simply means that it must be discharged by the incumbent not for his
own personal aggrandizement but for the benefit of the public for
whom it is held by him in trust.
A public office is not a heritable possession, it must be relinquished
upon expiration of the term attached to it. Public officer is personal to
the incumbent and is not to be considered as property which can be
passed on to his heirs.
A public office is not property and is outside the commerce of
man. It cannot be the subject of a contract.
In Coalition of Associations of Senior Citizens in the Philippines,
inc. v. Commission on Elections, the Supreme Court rejected a
“term-sharing agreement” among the party-list nominee resulting in
the resignation of one of its party list representatives to enable
other nominees of his party to assume office consistent with their
aforesaid arrangement. The Court held –
Considering that it is an admitted fact that the resignation of Rep.
Kho was made by virtue of a prior agreement of the parties, we
resolve and hereby rule that we cannot approve the movement in
the order of nominees for being contrary to public policy. The term
of office of public officials cannot be made subject to any
agreement of private parties. Public office is not a commodity that
can be shared, apportioned or be made subject of any private
agreement. Public office is vested with public interest that should
not be reined by individual interest.
In fact, to formalize the policy of disallowing term sharing
agreements between party list nominees, the Commission recently
promulgated Resolution No. 9366, which provides
“Sec. 7. Term sharing of nominees. – Filling of vacancy as a result
of term sharing agreement among nominees of winning party-list
groups/organizations shall not be allowed.
Considering all these, we find the term sharing agreement by the
nominees of the Senior Citizen’s Party-List null and void. Any action
committed by the parties in pursuit of such term-sharing
arrangement-including the resignation of Congressman David Kho-
cannot be recognized and given effect. Thus, in so far as this
Commission is concerned, no vacancy was created by the
resignation of Rep. Kho and there can be no change in the list and
order of nominees of the petitioner party-list.
Not being property, the public office is not protected by due process
clause. There can be no vested right in a public office, which, if
statutory, may be changed at will and even be abolished by the
legislature that created it. Besides such abolition, its term,
compensation and powers may be validly reduced even over the
objection of the incumbent.
There is no such thing as a vested interest or an estate in an office, or
even an absolute right to hold it. “The right to hold public office is not a
natural right; it exists only by virtue of a law expressly or impliedly
creating and conferring it.” Except constitutional offices which provide
for special immunity as regards salary and tenure, no one can be said
to have any vested rights in an office or its salary.
Due process is available to the public officer, however, in the sense
that he cannot be deprived of his office without a clear expression of
the legislative will. Any ambiguity in this regard should be resolved in
favor of the office holder.
Where the salary has already been earned by the public officer, it allowed to take part in political from engaging in any partisan
becomes private property entitled to the protection of due process. and electoral activities. political activity or take part in
Hence, a law retroactively reducing such salary would be invalid as any election except to vote.
violative of a vested right. The law can be given only prospective
operation, to affect salaries still to be collected by the public officer
and not yet accrued as a property right.
Incumbent Elective Official. – Incumbent Appointive Official. –
CLASSIFICATION Upon the other hand, pursuant Under Sec. 13 of R.A. No. 9369,
A public officer may be constitutional or statutory; national or local; to Sec. 14 of R.A. No. 9006 or which reiterates Sec. 66 of the
legislative, executive or judicial; lucrative or honorary; discretionary or the Fair Election Act, which Omnibus Election Code, any
ministerial; appointive or elective; civil or military; and de jure or de repealed Sec. 67 of the person holding a public
facto. Omnibus Election Code and appointive office or position,
rendered ineffective Sec. 11 of including active members of the
CHAPTER 2 R.A. No. 8436 insofar as it Armed Forces of the Philippines,
REQUIREMENTS FOR PUBLIC OFFICER considered an elected official as and officers and employees in
resigned only upon the start of government – owned and
A public officer is chosen either by appointment or election. the campaign period controlled – corporations, shall
corresponding to the positions be considered ipso facto
Farinas v. The Executive Secretary for which they are running, an resigned from his office upon
Elective officials Appointive officials elected official is not deemed to filling of his certificate of
The elective officials occupy Appointive officials hold their have resigned from his office candidacy.
their office by virtue of the office by virtue of their upon the filling of his certificate
mandate of the electorate. designation thereto by an of candidacy for the same or any
appointing authority. other elected office or position.
They are elected to an office for In fine, an elected official may
a definite term and may be Some appointive officials hold run for another position without
removed therefrom only upon their office in a permanent forfeiting his seat.
stringent conditions. capacity and are entitled to
security of tenure while others An election is the embodiment of In contrast, there is no such
serve at the pleasure of the the popular will, perhaps the expectation insofar as appointed
appointing authority. purest expression of the officials are concerned.
Section 55, Chapter 8, Title I, subsection A, Civil Service sovereign power of the people. It
Commission, Book V of the Administrative Code of 1987 (Executive involves the choice or selection
Order No. 292) of candidates to public office by
Elective officials or officers or Appointive officials, as officers popular vote.
employees holding political and employees in the civil
offices, are obviously expressly service, are strictly prohibited Considering that elected officials
are put in the office by their
constituents for a definite term, APPOINTMENT
xxx complete deference is Appointment has been defined as the “act of designation by the
accorded to the will of the appointing officer, body or board, to whom that power has been
electorate that they be served by delegated, of the individual who is to exercise the functions of a given
such officials until the end of the office. It is to be distinguished from designation, which is simply the
term for which they were mere imposition of new duties on the officer to be performed by him in
elected. a special manner.

In elections, such choices are In appointment, the choice of

made by the enfranchised
citizens through the exercise of
their suffrages.
Among the elective officials are
the Senators and the members
of the House of Representatives
and the local legislative bodies,
including the governors, vice-
governors, mayors, vice-mayors,
as well as barangay chairman
and councilman.
public functionaries is made by
the particular officer designated
by the Constitution or the law.
Under the Art. VII, Sec. 16 of the
1987 Constitution, the president
is authorized to appoint the
following officers:
(1) Heads of executive
department.
(2) Ambassadors, other
public ministers and
consuls.
(3) Officers of the armed
forces from the rank of
colonel or naval captain.
(4) Those other officers
whose appointments are
vested in him by the
Constitution.
(5) All other officers of the
government whose
appointments are not
provided for by law.
(6) Those whom he may be
authorized by law to
appoint.
Appointment
Appointment connotes Designation
permanency
Appointment may be defined as
the selection, by the authority
vested with the power, of an
individual who is to exercise the
functions of a given office.
Designation
implies
temporariness.
To “designate” a public officer to
another position may mean to
vest him with additional duties
while he performs the functions
of his permanent office.
A public officer may be
“designated” to a position in an
acting capacity as when an
Undersecretary is designated to
discharge the functions of a
Secretary pending the
appointment of a permanent
Secretary.”
Designation connotes merely the
imposition by law of additional
duties on an incumbent official,
as where, in the case before us,
the Secretary of Tourism is
designated Chairman of the
Board Directors of the Philippine
Tourism Authority, or where,

When completed, usually with its
confirmation, the appointment
results in security of tenure for
the person chosen unless he is
replaceable at pleasure because
of the nature of his office.
It is said that appointment is Designation
essentially executive.
under the Constitution, three
Justices of the Supreme Court
are designated by the Chief
Justice to sit in the Electoral
Tribunal of the Senate or of the
House of Representative.
is legislative in
nature,
Designation may also be loosely
defined as an appointment
because it likewise involves the
naming of a particular person to
a specified public office. That is
the common understanding of
the term. However, where the
person is merely designated and
not appointed, the implication is
that he shall hold the office only
in a temporary capacity and may
be replaced at will by appointing
authority.
In this sense, the designation is
considered only an acting or
temporary appointment, which
does not confer security of
tenure on the person named.
Designation does not entitle the
person designated to security of
tenure as he occupies the
position only in an acting
capacity.
Designation does not entail
payment of additional benefits or
grants upon the person so
designated the right to claim the
salary attached to the position.
An “acting” appointment is
essentially a temporary
appointment which is revocable
in character. Indeed, only
appointments or promotions, and
not designations, can be the
subject of a protest before the
Civil Service Commission.
Designation, being temporary in
nature, does not amount to the
issuance of an appointment, but
is a mere imposition of additional
duties.
“Appointment,” as explained by the Supreme Court in Luego v. Civil
Service Commission, “is an essentially discretionary power and
must be performed by the officer in which it is vested according to
his best lights, the only condition being that the appointee should
possess the qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that there are others
better qualified who should have been preferred. This is a political
question involving considerations of wisdom which only the
appointing authority can decide. The final choice of the appointing
authority should be respected and left undisturbed. The Court
should not substitute its own judgement to that of the appointing
authority. Not only is the appointing authority the officer primarily
responsible for the administration of his office; he is also the best
position to determine who among the prospective appointees can
efficiently discharge the functions of the position.
 “Appointment is essentially discretionary and cannot be controlled
even by the courts as long as it is properly and not arbitrarily
exercised by the appointing authority.
ELECTION
Election is a mode of filling a public office, by which the enfranchised
citizenry is able to participate directly in the conduct of the
government, through the selection by them of the functionaries who
will represent them therein.
VACANCIES
According to Mechem, “a vacancy exists when there is no person
lawfully authorized to assume and exercise at present the duties of
the office.”
A vacancy may be original, constructive, accidental or absolute.
It is original when an office is created and no one has as yet been
chosen to fill it.
It is constructive when the incumbent has no legal right to the office -
such as a de facto officer - and may be legally replaced by another.
It is accidental when the incumbent is separated by any mode other
than expiration of the term, like resignation, death, removal or
abandonment.
It is absolute when, the term of the incumbent having expired, no
successor has legally qualified to replace him.
Accordingly, it ruled in said case that “appointments to vacancies
resulting from certain cause (death, resignation, disability or
impeachment) shall only be for the unexpired portion of the term of
the predecessor, but such appointments cannot be less than the
unexpired portion as this will likewise disrupt the staggering of terms
laid down under Sec. 1(2), Art. IX(D).
QUALIFICATION AS AN ENDOWMENT
Qualification, in the Law of Public Officers, is understood in two
senses, i.e., as an endowment and as an act.
To be eligible for public office, the person appointed or elected thereto
must possess the prescribed qualifications. The term qualification is
understood in this connection as referring to the qualities or
endowments required of the public officer to insure the proper
discharge of the duties of his office.
Among the qualifications are the age, citizenship, suffrage, literacy,
residence, and academic qualifications.
Thus, all constitutional officers are required to be natural-born
citizens.
Property qualification may, however, not be imposed for the exercise
of the right to run for public office.
1. Disqualification
A person convicted in an impeachment proceeding may be
qualified from holding any office under the Republic of the
Philippines.
Persons convicted of offenses which carry with them the
penalty of perpetual or temporary special disqualification, such
as malversation, shall be deprived of their office or
employment and shall be further disqualified from holding
similar offices or employment either perpetually or during the
term of the sentence according to the extent of such
disqualification.
No Senator or Member of the House of Representatives shall
be appointed to any office which may have been created or
the emoluments thereof increased during the term for which he
was elected.

A defeated candidate may not be appointed or reappointed to
any office in the Government or any government-owned and
controlled- corporation or in any of its subsidiaries within one
year from the date of the election.
No person may be appointed Chairman or Commissioner of
the Civil Service Commission, the Commission on Elections
and the Commission on Audit, or the Ombudsman or as a
Deputy Ombudsman if he was a candidate for any elective
office in the election immediately preceding this appointment.
The only two exceptions against holding of multiple offices are:
(1) those provided for under the Constitution, such as
Section3, Article VII, authorizing Vice President to become as
member of the Cabinet; and (2) posts occupied by Executive
officials specified in Section 13, Article VII without additional
compensation in ex officio capacities as provided by law and
as required by the primary functions of the official’s offices.
A Filipino citizen who becomes naturalized elsewhere
effectively abandons his domicile of origin. Upon re-
acquisition of Filipino citizenship pursuant to R.A. 9225, he
must still show that he chose to establish his domicile in the
Philippines through positive acts, and the period of his
residency shall be counted from the time he made it his
domicile of choice.
In this case, there is no showing whatsoever that petitioner
had already re-acquired her Filipino citizenship pursuant to
R.A. 9225 so as to conclude that she has regained her
domicile in the Philippines. There being no proof that
petitioner had renounced her American citizenship, if follows
that she has not abandoned her domicile of choice in the
U.S.A.
2. Who May Prescribed Qualifications.
Qualifications may be prescribed by the Constitution or by
statute. The qualifications for such offices are those of the
President and the Supreme Court are specified directly by the
Constitution. The qualification for statutory officers, are laid
down by law, usually the statute creating their office
CHAPTER 3
DE FACTO OFFICERS
“An officer de facto is one whose acts, though not those of a lawful
officer, the law, upon principles of policy and justice, will hold valid so
far as they involve the interest of the public and third persons, where
the duties of the officer were exercised:
“First, without unknown appointment or election, but under such
circumstances of reputation or acquiescence as were calculated to
induce people, without inquiry, to submit to or invoke his action,
supposing him to be the officer he assumed to be;
“Second, under color of a known and valid appointment or election,
but where the officer had failed to conform to some precedent,
requirement, or condition, as to take an oath, give a bond, or the like;
“Third, under color of a known appointment or election, void, because
the officer was not eligible, or because there was a want of power in
the electing or appointing body, or by reason of som defect being
unknown to the public;
“Fourth, under color of an election or an appointment by or pursuant
to a public, unconstitutional law before the same is adjudged to be
such.”
De Jure De Facto

A de jure officer is one who has A de facto officer is one who
lawful title to the office but has actually possesses the office
not been able to take possession although he has an imperfect or
of it or has been ousted only colorable title thereto.
therefore.
The de jure officer has a title. The de facto officer has color of
title
REQUISITES OF DE FACTO OFFICERSHIP
“The conditions and elements of De Facto officership are the
following: (1) The must be a de jure office; (2) There must be color of
right or general acquiescence by the public; and (3) There must be
actual physical possession of the office in good faith.”
(1) Existence of a de jure office.
There can be no de facto office where there is no de jure,
although there may be a de facto officer in a de jure office.
The office occupied by the de facto officer must be legitimate,
except that there is some defect in the title of the person
holding it.
Thus, if the person occupying a legitimate office was invalidly
appointed or elected thereto, or is not possessed of the
necessary eligibility, he is a de facto officer.
(2) Color of Title.
Color of title is derived from reputation or acquiescence or
from an invalid appointment or election.
(3) Physical possession of the office.
EFFECTS OF ACTS OF DE FACTO OFFICERS
“The lawful acts of an officer de facto, so far as the rights of third
persons are concerned, are, if done within the scope dered as valid
and binding as if he were the officer legally elected and qualified for
the office and in full possession thereof.”
Thus, a criminal information filed by a lawyer who had been invalidly
appointed as acting fiscal by the provincial governor was held to be
the lawful act of a de facto officer.
CHAPTER 4
THE CIVIL SERVICE
The Constitution provides for a Civil Service which embraces all
branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned and controlled
corporations with original charters.
The Civil Service Commission
The Civil Service shall be administered by a Civil Service
Commission, which is the government’s central personnel agency
designated to set standards and to enforce the laws and rules
governing the selection, utilization, training and discipline of civil
servants.
The Commission is composed of a Chairman and two Commissioners
who shall be natural born citizens of the Philippines and, at the time of
their appointment, at least thirty-five years of age, with proven
capacity for public administration, and must not have been candidates
for any elective position in the elections immediately preceding their
appointment.
The Chairman and the Commissioners shall be appointed by the
President with the consent of the Commission on Appointments for a
term of seven years without reappointments, and may be removed
only by impeachment.