INCOMPATIBLE AND

FORBIDDEN OFFICES and

RESTRICTIONS ON OTHER
OFFICES AND OFFICER OF THE
GOVERNMENT

CONSTITUTIONAL LAW REVIEW – A

Submitted to:
Justice Romulo Borja
Introduction

It cannot be understated that public office is indeed a public trust. The men and women, whether
elected or appointed, are put into positions of power in order to wield that power in the best
interests of the people who have entrusted upon them the sacred duty of serving the Republic and
its people. American Jurisprudence has described governmental power as being as vast and
unlimited as the ocean, with the Constitution serving as a barrier from which the tide cannot
breach. It is in these Constitutional prohibitions that government power is held in check. A perusal
of these prohibitions would show that there is a general policy of what the Constitution seeks to
achieve.

Specifically,

(1) That there be no abuse of office

(2) That the public office not be used in the furtherance of personal interest to the detriment of
the people
(3) That there be no concentration of power upon a single branch of government
(4) That public officers avoid conflicts of interest

INCOMPATIBLE AND FORBIDDEN OFFICES

Article XI, Section 13: 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. X x x

Article 6, Section 14 speaks of two different classes of offices, relevant because of their effect and
the absolute or permissive nature of the prohibition.

The first paragraph of Article 6, Section 14 refers to incompatible offices, the prohibition is based
on the fact that a member of Congress may not serve two branches of government without having
his loyalty split between them, to the detriment of the independence of the legislature and the
doctrine of separation of powers.

However, said prohibition is not absolute. What is prohibited is simultaneous holding of that office
and the seat in the Congress. The duration for the prohibition is only during his tenure, thus a
member of Congress may validly accept an appointment or hold another government office with the
effect if this being that he automatically forfeits his seat in Congress, thus ending his term and
curing the “incompatibility”.
x x x 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.

The second paragraph of Article 7, Section 13 refers to Forbidden Offices. Under this principle, a
member of the legislature may not be appointed to any office in the government that has been
created or the emoluments thereof have been increased during his term. Here, the rationale for the
prohibition is not incompatibility, but to prevent trafficking in public office. The evil sought to be
prevented here is the maneuvering of unscrupulous legislators to create lucrative posts and have
themselves appointed therein.

In contrast with an incompatible office, a forbidden office is absolutely prohibited and extends not
only to his tenure but to his entire term. The reason being that incompatibility may be cured by
simply ending the tenure, but no such reconciliation exists in a prohibited office. The effect of this
is that even if a legislator would elect to forfeit his seat, he still would not be able to be appointed to
a forbidden office.

This provision does not apply to elective offices, which are filled by the voters themselves. Alas, the
appointment of a member of the Congress to the forbidden office is not allowed only during the
term for which he was elected, when such office was created or its emoluments were increased.

OTHER INHIBITIONS & DISQUALIFICATIONS

On the Legislative Branch

Article VI Section 1. The legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives, except to the extent reserved
to the people by the provision on initiative and referendum.

Although not implicitly stated in Article 6 Section 1, the delegation of pure legislative power is not
permissible. This is in line with the well-known principle of “delegatus non potest delegare," or that
a delegated power may not be further delegated by the person to whom such power is delegated.

American Authorities have elaborated on the concept of the non-delegability of legislative power in
the context of the separation as a breach of national fundamental law.

However, there must be a qualification made as to government coordination, and the delegation of
legislative power. Each branch, in the performance of their duties, may invoke the action of the
other two branches so long as there is no derogation of power. Without the assumption of a power
possessed by another branch there is no delegation but mere cooperation. The determining factor
in whether or not a delegation has been made is the extent and character of aid.
Article 7, Section 14: No Senator or Member of the House of Representatives may personally
appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-
judicial and other administrative bodies.

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 controlled corporations, or its
subsidiary, during his term of office.

He shall not intervene in any matter before any office of the Government or where he may be
called upon to act on account of his office.

The first paragraph of Article 7(14) prohibits the appearance of lawyer-legislators as counsel in the
above named bodies. The regard upon which legislators are held is of undeniable consequence thus
the disqualification is meant to prevent the exertion of undue influence, deliberately or not, upon
the body where he is appearing. However, since it is his apparent influence that creates the issue, a
lawyer-legislator may still engage in the practice of his profession but when it comes to trials and
hearings before the bodies above-mentioned, appearance may be made not by him but by some
other member of his law office.

The second paragraph prohibits legislators from financial involvement in any contract with the
government. This is, again, another prohibition designed to curb the abuse of a legislator’s
influence. The rationale of this is to prevent abuse from members of Congress of using said
influence to put themselves into advantageous positions to the prejudice of public welfare.

The last paragraph as Cruz says, has never been judicially interpreted, but he provides an example
of how it would apply thusly:

“It may be surmised that the rule shall apply to the case, say, of a congressman expediting the
collection of a civil servant’s retirement check for a stipulated fee.”

ARTICLE VI SECTION 10. The salaries of Senators and Members of the House of
Representatives shall be determined by law. No increase in said compensation shall take
effect until after the expiration of the full term of all the Members of the Senate and the
House of Representatives approving such increase.

It is admitted that the purpose of the provision is to place "a legal bar to the legislators yielding to
the natural temptation to increase their salaries. Not that the power to provide for higher
compensation is lacking, but with the length of time that has to elapse before an increase becomes
effective, there is a deterrent factor to any such measure unless the need for it is clearly felt"
(Tañ ada & Fernando, Constitution of the Philippines, Vol. 2, p. 867).
ARTICLE VI SECTION 31. No law granting a title of royalty or nobility shall be enacted.

This prohibition is a manifestation of the republican and democratic nature of the state. Titles of
nobility create a special and privileged class which would violate the principle of Sovereignty.

On the Executive

ARTICLE VII SECTION 6. The President shall have an official residence. The salaries of the
President and Vice-President shall be determined by law and shall not be decreased during
their tenure. No increase in said compensation shall take effect until after the expiration of
the term of the incumbent during which such increase was approved. They shall not receive
during their tenure any other emolument from the Government or any other source

The first paragraph is a prohibition on Congress against the alteration of the salary of the President
and Vice-President to prevent Congress from “weakening their fortitude by appealing to their
avarice or corrupting their integrity”.

Emoluments in the context of public officers are defined as “a gain, profit, or advantage which is
pecuniary in character” However, while the President is confined solely to the performance duties,
the Vice President may be appointed to the cabinet with the condition that he receives no
compensation in that capacity.

ARTICLE VII SECTION 13. The President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in this Constitution, hold
any other office or employment during their tenure. They shall not, during said tenure,
directly or indirectly, practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or special privilege granted
by the Government or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. They shall strictly avoid
conflict of interest in the conduct of their office.

The President, Vice-President, the Members of the Cabinet, and their deputies or assistants are also
prohibited from (1) The practice of any other profession (2) participation in any business (3) being
financially interested in any contract wherein a conflict of interest arises out of the influence bought
about by their positions.

The rationale here is to prevent conflicts of interest, nepotism, ensure devotion to their official
duties, and prevent the abuse of public office for personal gain.

A significant difference in prohibitions regarding the holding of any other office or employment is
that all other prohibitions contain the qualifier “in the Government”, meaning that while the other
officials are prohibited from holding a “government” office, the President, Vice President, and
Cabinet members are absolutely precluded from the performance of any other employment.

It must be noted however that what is prohibited is the holding of an “other” office, which in Civil
Liberties Union v. The Executive Secretary, was construed to exclude those offices which are
held ex-officio or required by the primary functions of the Executive branch. As explained by the
Court in the same case, the aforementioned offices are not the “other” offices which the constitution
prohibits but merely an “imposition of additional duties and functions on said officials”

In Rafael v. Embroidery and Apparel Control and Inspection Board, the Court explained that if
a function is incidental, remotely related, inconsistent, incompatible, or otherwise alien to the
primary function of the officer then this would constitute the “other office” prohibited by the
Constitution.

ARTICLE VII SECTION 14. Appointments extended by an Acting President shall remain
effective, unless revoked by the elected President within ninety days from his assumption or
reassumption of office.

ARTICLE VII SECTION 15. Two months immediately before the next presidential elections
and up to the end of his term, a President or Acting President shall not make appointments,
except temporary appointments to executive positions when continued vacancies therein
will prejudice public service or endanger public safety.

Midnight Appointments

This is a limitation on the President’s power of appointment with the purpose of preventing the use
thereof for political maneuvering. This is also to prevent midnight appointments, the Carlos Garcia
appointments are instructive on this point. President Garcia made 350 ad interim appointments
one day before the end of his term, all of which were cancelled by his successor Diosdado
Macapagal.

The Court characterized the duty of a President with so little time left in his term as “no more than a
mere care-taker” who was duty bound to prepare for the orderly transfer of power. To make such
appointments, as a President on his way out would be to effectively obstruct the policies of his
successor and may even be construed as a measure to keep some sort of control. Furthermore, it
stops the new administration from making those appointments themselves according to their own
preferences and standards.

This, however, does not cover appointments to the Supreme Court, in De Castro v Judicial and Bar
Council, the Court determined that the intention of the framers was for the prohibition to cover the
Executive department only. The abuse of power sought to be prevented by the framers can now be
checked by the Judicial and Bar Council.
ARTICLE XI SECTION 16. 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.

Prohibitions in the Judiciary

ARTICLE VIII Sec 12 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.

This is an application of the principle of the separation of powers. To permit the situation as
supposed by herein would be to allow a concentration of power in the Executive Branch.
Furthermore, a consequence of the performance of other functions would be to cause a delay in the
promulgation of cases.

Prohibitions on the Constitutional Commissions

Civil Service Commission

Art IX–B, Sec. 2 par. 4 No officer or employee in the civil service shall engage, directly
or indirectly, in any electioneering or partisan political campaign.  

Partisan political activity as interpreted by the Civil Service Commission means “Active support for
or affiliation with the cause of a political party or candidate.” This includes being a candidate for an
elective office, being a delegate to any political convention, being a member of any political
committee, delivering speeches, soliciting political support or being actively identified with the
success or failure of any candidate for election. The purposes for the prohibition are to inhibit the
officer from using government resources in the aid of his preferred candidate and to protect them
from retaliation in the event that their preferred candidate does not win.

It must be noted that the prohibition covers only civil servants holding apolitical offices. The reason
for this being that those in political are office, are, by their nature, engaged in partisan activity at all
times.

Art IX-B Sec 6. No candidate who has lost in any election shall, within one year after such election,
be appointed to any office in the Government or any government-owned or controlled corporations
or in any of their subsidiaries.
“Spoils System”

This prohibition is one against the “spoils system” wherein, thankful for support rendered during
the campaign period, an appointment would be given to a losing candidate. Isagani Cruz
characterizes this as a “defiance of the will of the people” being that a candidate they rejected be
immediately returned to the public service.

However, since the prohibition operates only for one year from the date of the elections, seeing as
defeat does not equate to unfitness.

Art IX-B Sec 7 Unless otherwise allowed by law or by the primary functions of his position,
no appointive 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.

The purpose of this prohibition is to ensure that the official would remain in the position that the
people elected him to be in . The policy here is that it is his responsibility to fulfill the duty which
the people entrusted him. However, the use of the word “term” means that an elected official may
hold an appointed position provided he relinquishes his post.

Art IX-B Sec 8 No elective or appointive public officer or employee shall receive additional,
double, or indirect compensation, unless specifically authorized by law, nor accept without
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.

This prohibition is distinct from the rest as it is less of a prevention of abuse but more of a
limitation on the government’s spending power and to curb entering into the public service with
personal gain in mind. In Peralta v Mahay the Court stated:

“This is to manifest a commitment to the fundamental principle that a public office is

a public trust. It is expected of a government official or employee that he keeps
uppermost in mind the demands of public welfare. He is there to render public
service He is of course entitled to be rewarded for the performance thereof but that
should not be the overriding consideration. The intrusion of the thought of private gain
should be unwelcome. ”

The main point of the Court being that the ultimate goal of those in public office is to render public
service and while that comes with compensation, the gains of office must not become the
motivation for the office so much so that the duties of the office are forgotten.

Additional v Double Compensation

Additional compensation is when there is an added reward to an already fixed compensation. This
is allowed only when a law specifically authorizes the reward. Double compensation is where there
are two different offices held by a single officer receiving compensation from both. This is
permitted provided that both offices held are not compatible. There must be authorization by law
to be compensated for the second office, otherwise the officer receives nothing from the second
office he occupies.

Foreign Grants

The purpose of the prohibition is to deter improper foreign influence exerted upon a public
officer. However, if ulterior motive are not apparent and the emolument is a sincere
gesture then Congress may authorize the acceptance of such.

OFFICE OFFICER RESTRICTIONS/PROHIBITIONS

EXECUTIVE 1. President 1. Shall not receive any other emolument from

DEPARTMENT the Government or any other source. (Art.
2. Vice President
VII, Sec. 6) 

2. Shall not hold any other office or

employment, unless otherwise provided in
the constitution. (Art. VII, Sec. 13) 

3. Shall not practice any other profession. (Art.

VII, Sec. 13) 

4. Shall not participate in any business. (Art.

VII, Sec. 13) 

5. Shall not be financially interested in any

contract with, or in any franchise or special
privilege granted by the government or any
subdivision, agency, or
instrumentality thereof, including
government-owned or
controlled corporations or their
subsidiaries. (Art. VII, Sec. 13) 

6. Shall strictly avoid conflict of Interest. (Art.

 VII, Sec. 13) 

7. May not appoint spouse or relatives by

consanguinity or affinity within the fourth
civil degree as members of Constitutional
Commissions, or the Office of
the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of
bureaus or offices, including government-
owned or controlled corporation and
their subsidiaries. (Art. VII, Sec. 13) 

8. Appointments extended by an Acting

President shall remain effective, unless
revoked by the elected President within
ninety days from his assumption or
reassumption of office. (Art. VII, Sec. 14

9. Two months immediately before the next

presidential elections and up to the end of
his term, a President or Acting President
shall not make appointments, except
temporary appointments to executive
positions when continued vacancies therein
will prejudice public service or endanger
public safety. (Art. VII, Sec. 15)

10. 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. (Art. XI, Sec.
16,)

11. Disclosure of assets (Art. XI, Sec. 17)

LEGISLATIVE 1. Senators 1. No Senator or Member of the House of
DEPARTMENT Representatives may hold any other office
2. Members of the
or employment in the Government, or any
House of
subdivision, agency, or instrumentality
Representatives
thereof, including government- owned or 
controlled corporations or their
subsidiaries, during his  term without
forfeiting his seat. (Art. VI, Sec. 13) 

2. Neither shall he be appointed to any office

which may have been created nor the
emoluments thereof increased during the
term for which he was elected. (Art. VI, Sec.
13) 

3. No Senator or Member of the House of

Representatives may personally appear as
counsel before any court of  justice or
before the Electoral Tribunals, or quasi-
judicial  and other administrative bodies.
(Art. VI, Sec. 14)

4. 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  government- owned or
controlled corporation, or its  subsidiary,
during his term of office. 

5. 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. (Art. VI,
Sec. 14) 

6. 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.
 (Art. VI, Sec. 14) 

7. Member of Congress is disqualified to hold

two classes of office, namely: 

(a) Incompatible Office; and

(b) Forbidden Office.

8. No candidate who has lost in any election

shall, within one year after such election, be
appointed to any office of the Government
or any Government-owned or
controlled corporations or in any of their
subsidiaries. (Art. IX-B, Sec. 6)

9. No elective official shall be eligible for

appointment or designation in any capacity
to any public office or position during his
tenure. (Art. IX-B, Sec. 7) 

10. No elective or appointive public officer or

employee shall receive additional, double,
or indirect compensation, unless specifically
authorized by law, nor accept without
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.
(Art. IX-B, Sec. 8) 

11. 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. (Art. XI, Sec. 16) 

12. Disclosure of assets (Art. XI, Sec. 17)

JUDICIAL 1. Supreme Court 1. The Members of the Supreme Court and of

DEPARTMENT Justices other courts established by law shall not be
designated to any agency performing quasi-
2. Collegiate
judicial or administrative functions. (Art.
Appellate Courts
VIII, Sec. 12) 
Justices
2. Unless otherwise allowed by law or by the
3. Judges
primary functions of his position, no
appointive 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. (Art. IX-B, Sec. 7) 

3. No elective or appointive public officer or

employee shall receive additional, double,
or indirect compensation, unless specifically
authorized by law, nor accept without
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.
(Art. IX-B, Sec. 8) 

4. No elective or appointive public officer or

employee shall receive additional, double,
or indirect compensation, unless specifically
authorized by law, nor accept without
consent of the Congress, any present,
emolument, office, or title of any kind from
any foreign government. 

5. Pensions or gratuities shall not be

 considered as additional, double or indirect
compensation. (Art. IX-B, Sec. 8)

CONSTITUTIONAL Commission on 1. No member shall hold any other office or

COMMISSIONS Elections employment

1. Chairman 2. He may not practice any profession. 

2. Commissioners 3. May not be in active management or control

of any business, which may be affected by
the function of his office.

4. May not be financially interested 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 (Art. IX-A,  Sec. 2) 

5. The appointment of the Chairman and the

Commissioners shall be for a term of seven
years without  reappointment (Art. IX-B,
Sec. 2) 

6. 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.  (Art. XI, Sec. 16) 

7. Disclosure of assets (Art. XI, Sec. 17)

Civil Service 1. No member shall hold any other office or

Commission employment (Art. IX-A, Sec. 2) 
1. Chairman 2. He may not practice any profession. (Art. IX-
A, Sec. 2) 
2. Commissioners
3. May not be in active management or control
of any business which may be affected by
the function of his office. (Art. IX-A, Sec. 2) 

4. May not be financially interested in any

contract w/ 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 (Art. IX-A, Sec. 2) 

5. The appointment of the Chairman and the

Commissioners shall be for a term of seven
years without reappointment (Art. IX-B, Sec.
2) 

6. No officer or employee in the civil service

shall engage, directly or indirectly, in any
electioneering or partisan political
campaign. (Art IX–B, Sec. 2 par. 4) 

7. 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.  (Art. XI, Sec. 16) 

8. Disclosure of assets (Art. XI, Sec. 17)

Commission on 1. No member shall hold any other office or

Audit employment.  (Art. IX-A, Sec. 2) 
1. Chairman 2. He may not practice any profession. (Art. IX-
A, Sec. 2) 
2. Commissioners
3. May not be in active management or control
of any business, which may be affected by
the function of his office. (Art. IX-A, Sec. 2) 

4. May not be financially interested 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 (Art. IX-A,  Sec. 2) 

5. The appointment of the Chairman and the

Commissioners shall be for a term of seven
years without reappointment (Art. IX-B, Sec.
2) 

6. 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.  (Art. XI, Sec. 16) 

7. Disclosure of assets (Art. XI, Sec. 17)

1. Ombudsman 1. No member shall hold any other office or

employment (Art. IX-A, Sec. 2) 
2. Deputies
2. He may not practice any profession. (Art. IX-
A, Sec. 2) 

3. May not be in active management or control

of any business which may be affected by
 the function of his office. (Art. IX-A, Sec. 2) 

4. May not be financially interested 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 (Art. IX-A,  Sec. 2) 

5. The Ombudsman and his Deputies shall

serve for a term of seven years without
reappointment. They shall not be qualified
to run for any office in the election
immediately succeeding their cessation
from office. (Art. XI, Sec. 11) 

6. 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.  (Art. XI, Sec. 16) 

7. Disclosure of assets (Art. XI, Sec. 17)