command of the Constitution to render efficient service
LAW ON PUBLIC OFFICERS to the people (Balais vs. Dep. Sheriff, 146 SCRA 56;
AO Rodolfo M. Elman, CESO III
Ateneo de Davao Law School
PUBLIC OFFICE
The basic tenet of public accountability: Article 11,
Section 1 of the Constitution: “Public office is a public
trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with
patriotism and justice, and lead modest lives.” Meaning,
a public office is a gift or privilege given by the people
to certain individuals for the latter to discharge
sovereign or governmental powers in order that
communal good and interest may be served (Balais v
Deputy Sheriff, 146 SCRA 56; Gano v Leonen, 232 SCRA
98; Medilo v Asodisen, 233 SCRA 68)
I. Public Office and Public Officers
General Principles
Laws governing all government officers and
employees:
 Civil Service law (PD 807)
 Revised Administrative Code (EO 292)
 Anti - Graft and Corruption Practices Act (RA
3019)
 Law on forfeiture of ill gotten property, unlawfully
acquired properties of public officers and
employees (RA 1379)
 The code of conduct and ethical standards for
public officers and employees (RA 6713)
 Revised Penal Code on the crimes committed by
public officers
 Provisions of the 1987 Constitution
A. DEFINITION
PUBLIC OFFICE 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 appointing power, an individual is
invested with some portion of the sovereign functions of
the government, to exercised by him for the benefit of
the public.
"Public Office is a public trust. Public Officers and
employees must, at all times, be accountable to the
people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice
and lead modest lives." (Section 1, Article XI, 1987
Constitution)
Meaning of the above principle:
A public office is a gift or privilege given by the
people to certain individuals for the latter to discharge
sovereign or governmental powers in order that
communal good and interest may be served. A
public officer is obliged to act with due care in
discharging the delicate duties of his office to the best of
his ability. He must comply with the superlative
Gano vs. Leonen, 232 SCRA 98; Medilo vs. Asodisen,
233 SCRA 68).The Supreme Court in ABAKADA affirmed
the in constitutionality of Republic Act 9335, the
Attrition Act of 2005, which provides for a system
of rewards and incentives for BIR and BOC officials
and employees who exceed their collection targets for
a given year. The law also penalizes with immediate
separation from government service BIR and BOC
officials and employees that fail to meet their collection
targets or quotas. However, the SC voided as
unconstitutional Section 12 of RA 9335 which allows
the creation of a congressional oversight body to
approve its implementing rules and regulations.
Any provision that empowers Congress to play a role in
the enforcement of the law violates the principle of
separation of powers. The SC said Congress has
arrogated judicial power unto itself by exercising
discretion to determine whether the IRR
formulated by the executive department conform
to the provisions of the law. The SC also dismissed
the petition of Abakada Guro party-list seeking to void
RA 9335 on grounds that it “transforms officials and
employees of BIR and BOC into mercenaries and bounty
hunters” as the incentives invite corruption and
undermine their duty to serve with integrity, loyalty and
efficiency to the republic. A system of incentives for
exceeding the set expectations of a public office is not in
contrast to the concept of public accountability. Rather it
recognizes and reinforces dedication to duty,
industry, efficacy and loyalty to public service of
deserving government personnel (Abakada Guro
Party List v. Purisima, 562 SCRA 251).
B. Elements
1.CREATION: Must be created either by (a) the
Constitution, (b) the Legislature, or (c) a municipality or
other body through authority conferred by the
Legislature (BY DELEGATION)
2. POWERS: Must possess a delegation of a portion of
the sovereign power of government, to be exercised
for the benefit of the public;
3.POWERS DEFINED: The powers conferred and the
duties discharged must be defined, directly or impliedly
by the Legislature or through legislative authority;
4.INDEPENDENT: The duties must be performed
independently and without control of a superior power
other than the law;
Exception: If the duties are those of an inferior or
subordinate office, created or authorized by the
Legislature and by it placed under the general control
of a superior office or body;
5.PERMANENCE: Must have some permanency and
continuity
1|Page
Note: This is not to be applied literally. The Board of
Canvassers is a public office, yet its duties are only for a
limited period of time.
C. Purpose and Nature
A public office is created to effect the end for which
government has been instituted which is the
common good; not profit, honor, or private
interest of any person, family or class of persons (63 A
Am Jur 2d 667)
Nature:
(1) A public office is a public trust.
Section 1.  Public office is a public trust. Public officers
and employees must, at all times, be accountable to the
people, serve them with utmost responsibility, integrity,
loyalty, and efficiency; act with patriotism and justice,
and lead modest lives.
(Art. XI, Sec. 1, 1987 Constitution)
(2) It is a responsibility and not a right. (Morfe v.
Mutuc)
CASES
LAUREL V. DESIERTO
(381 SCRA 48)
Determining whether a position is a public office or not
FACTS:
This involved the creation of the national
centennial commission through the issuance by the
office of the president of AO 223 creating the so-
called the National Centennial Commission (NCC).
The NCC was charged with the responsibility of
making the general operations of the nationwide
celebration of the Philippine Centennial, the
declaration of the Philippine independence. Former
Vice President Salvador Laurel was appointed to
head that committee although he has not been
getting any salary. In the course of Laurel’s
discharge of his functions, he was involved in a so-
called expo scam, the construction of several high-
rise buildings. It was even a subject of
investigation in the senate. A case was filed
against him in the Office of the Ombudsman
headed by Desierto.
One of the grounds raised by laurel was that he
was not a government officer. According to him,
the NCC was simply an ad hoc body whose
existence ceased upon the completion of its
task under AO 223. He added that he has not
been getting any salary with that office and that
he was merely holding a temporary office.
ISSUES: 1. W/N should Salvador laurel be
considered as public officer?
2. Should the ombudsman have the
authority to file the charge against him
considering that laurel claimed that no
public office is involved?
HELD:
The Supreme Court ruled that the
principal consideration in determining whether an
office is public or not is whether a portion of
certain governmental function is being performed
by an individual. The basic characteristic of a
public office is the investment; the
conferment of the public functions to an
individual. The definition of public office is it is a
duty, a right, and authority created and
conferred by law for a given period. An individual
is invested with some of the sovereign function of
government for him to discharge the interest, for
good of the public. The basic consideration here is
that the individual is endowed with a public
responsibility given the factor of discharging
governmental power. For this reason he should
be considered a public officer. So even if the office
was created only for a short period but the
individual was given the right, duty and
authority to discharge government tasks then
he us a public officer.
The argument that it is simply an
ad hoc body is without merit. The functions of the
NCC can be described as executive functions.
One of the policies set forth in Article XIV, Section
15 of the Constitution is that “arts and letters shall
enjoy the patronage of the State. The State shall
conserve, promote and popularize the nation’s
historical and cultural heritage and resources as
well as artistic creations.” The NCC was precisely
created to execute the foregoing policies.
Further, the NCC has an admitted role in the
country’s economic development which is a
fundamental state policy under Article XII, Section
1 of the Constitution on National Economy and
Patimony. Clearly, the NCC performs
sovereign functions.
It is therefore a public office and its
Chairman is a public officer. The mere fact that he
does not receive any compensation during his
tenure is immaterial and not conclusive. A salary
is a usual but not necessary criterion for
determining the nature of the position. It is a
mere incident and forms no part of the office.
Note: So it is possible therefore that a public officer
may not be receiving salary. You know there are
situations where person is called an adviser with an
annual salary of 1 peso, but this fact alone will not
prevent him from coming within the ambit of public
office concept. In other words, the test here is if the
person conferred with authority to discharge
governmental tasks, then he is considered a public
officer. The fact that he does not receive anything is
immaterial. There are lucrative offices as compared with
honorary offices. So you see, salary and other
compensation is not an integral part of the office itself.
2|Page
 ABAKADGURO PARTY LIST V. PURISIMA
(562 SCRA 251)
Constitutionality of a law (RA 9335) providing for a
system of rewards and incentives for BIR and BOC
officials and employees
FACTS:
Petitioners question the Attrition Act of 2005 and
contend that by establishing a system of rewards and
incentives when they exceed their revenue targets,
the law (1)  transforms the officials and employees of
the BIR and BOC into mercenaries and bounty
hunters; (2) violates the constitutional guarantee of
equal protection as it limits the scope of the law to the
BIR and BOC; (3) unduly delegates to the President the
power to fix revenue targets without sufficient
standards; and (4) violates the doctrine of
separation of powers by creating a Congressional
Oversight Committee to approve the law’s implementing
rules.
ISSUE: Whether or not such law conferring such
benefits is violative of the concept of public
accountability
HELD:
The Supreme Court affirmed the
constitutionality of Republic Act 9335, the Attrition Act of
2005, which provides for a system of rewards and
incentives for BIR and BOC officials and employees who
exceed their collection targets for a given year. The law
also penalizes with immediate separation from
government service BIR and BOC officials and
employees that fail to meet their collection targets or
quotas. However, the SC voided as unconstitutional
Section 12 of RA 9335, which allows the creation of a
congressional oversight body to approve its
implementing rules and regulations. Any provision that
empowers Congress to play a role in the enforcement of
the law violates the principle of separation of powers.
The SC said Congress has arrogated judicial power
unto itself by exercising discretion to determine
whether the IRR formulated by the executive
department conform to the provisions of the law.
The SC also dismissed the petition of Abakada Guro
party-list seeking to void RA 9335 on grounds that it
“transforms officials and employees of BIR and BOC into
mercenaries and bounty hunters” as the incentives invite
corruption and undermine their duty to serve with
integrity, loyalty and efficiency to the republic. A system
of incentives for exceeding the set expectations of a
public office is not in contrast to the concept of
public accountability. Rather it recognizes and
reinforces dedication to duty, industry, efficacy
and loyalty to public service of deserving
government personnel.
FIGUEROA V. PEOPLE
(498 SCRA 298)
Membership in the market committee
FACTS:
Petitioners Tony Figuerra and Rogelio Flaviano,
columnist and publisher-editor, respectively of the
People’s Daily Forum were charged of libel for
impeaching the reputation and social standing of
Cepriano Rivera in a news publication, published in
People’s Daily Forum. Petitioners alleged that the
article was not directed at the private character of
complainant but on the sorry state of affairs at the
Bankerohan Public Market. They also contended that
Rivera is a public officer invoking that the published
article is within the ambit of privileged communication.
ISSUE: WON Rivera, a member of the market
committee, a public officer?
HELD: No. Rivera is not a public officer.
Private complainant Rivera, who filed a libel case
against petitioners Fegueroa and Flaviano of the People’s
Daily Forum resulting in their conviction, cannot be
considered a public officer so as to make the published
article within the ambit of privileged communication
under the RPC. His being a member of the market
committee did not vest upon him any sovereign
function of government. The operation of a market is
not a governmental function but one undertaken by the
city in its private proprietary capacity. Also, his
membership in the market committee was in
representation of the association of market vendors, a
non-governmental organization belonging to the private
sector.
JAVIER V. SANDIGANBAYAN
(599 SCRA 325)
Private Sector Membership in NBDB under RA 8047
FACTS:
Petitioner Javier was appointed to the National
Book Development Board (NBDB) as a private sector
representative for a term of one (1) YEAR. During that
time, she was also the President of Book Supplies
Association of the Philippines. The NBDB is under the
administration and supervision of the Office of the
President. Petitioner was issued by the office of the
president a travel authority to attend the Madrid
International Book Fair. She was paid P139,199.00 as
her travelling expenses. Unfortunately, petitioner failed
to return/refund the cash advance considering that her
trip was cancelled. She was charged with violation of
Sec. 3(e) of RA 3019 before the Sandiganbayan.
Petitioner filed a motion to quash averring that:
1.) Sandiganbayan has no jurisdiction to hear
her criminal case as the information did not
allege that she is public official who is
classified as grade “27” or higher.
2.) She is not public officer or employee and that
she belongs to the governing board only as
private sector representative only.
3|Page
 3.) She does not perform public functions and is
without any administrative or political power
to speak of.
ISSUES:
1.) WON petitioner is public officer
2.) WON petitioner, as a public officer, is within
the jurisdiction of the Sandiganbayan
HELD:
1.) YES. Pursuant to the Anti-Graft Law, one is
public officer if one has been elected or
appointed to a public office. Petitioner was
appointed by the President to the Governing
Board of the NBDB. Though her term is only
for a year that does not make her private
person exercising a public function. Petitioner
performs public functions in pursuance of the
objectives of RA 8047. (the Book Publishing
Industry Development Act), In fact, during
her tenure, petitioner took part in the
drafting and promulgation of several
rules and regulations implementing RA
8047. Also, under the Anti-Graft Law, the
nature of one’s appointment, and whether
the compensation received from the
government is only nominal, is
immaterial. As she performs public
functions in pursuance of the objectives of
RA 8047, verily she is a public officer
2.) Yes. The 5 members of the board do not
receive any salary and as such their position
are not classified and are not assigned any
salary grade. For purposes however of
determining the rank equivalence of said
positions, the same may equated to Board
Member II – SG 28. Petitioners belongs to
the employees classified as SG-28, included
in the phrase “all other national and local
officials classified as ‘grade 27’ and higher
under the compensation and position
classification Act of 1989.”
LAGMAN V. OCHOA AND BIRAOGO V. PHIL. TRUTH
COMMISSION
( DECEMBER 7, 2010)
Creation of the Philippine Truth Commission under EO 1
is unconstitutional as it violates the equal protection
clause, although the President has the power to create
the PTC as an ad-hoc body to investigate reports of graft
pursuant to Art. VII Sec. 17
FACTS:
Pres. Benigno Aquino III created Philippine Truth
Commission by virtue of Executive Order No. 1. Said
executive order was questioned by herein petitioners as
violative of equal protection clause insofar as its
objective is to investigate large scale graft and
corruption during the previous administration
under former president Arroyo. Petitioners contend
that it did not meet the requisites for a valid
classification as it singles out the previous
administration as its sole object. Respondent, on the
other hand, defended that it was based on widespread
(based on reports daw!!) reports of large scale graft
and corruption in the previous administration
which have eroded public confidence in public
institutions. It further contends that the segregation of
the preceding administration as the object of the fact-
finding is warranted by the reality that unlike with
administrations long gone, the current administration will
most likely to bear the immediate consequence of
the policies of the previous administration.
ISSUE: Whether or not Executive Order No. 1 violates
the constitutional guaranty of equal protection of the
laws
HELD:
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. Section 17 reads: “The President
shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be
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. The President’s power to conduct
investigations to ensure that laws are faithfully executed
is well recognized. It flows from the faithful-execution
clause of the Constitution under Article VII, Section 17
thereof.[56] As the Chief Executive, the president
represents the government as a whole and sees to it that
all laws are enforced by the officials and employees of
his department.
Nonetheless, Executive Order No. 1 should be
struck down as violative of the equal protection
clause. The clear mandate of the envisioned truth
commission is to investigate and find out the truth
“concerning the reported cases of graft and corruption
during the previous administration” only. The intent to
single out the previous administration is plain, patent
and manifest.
Classifying Public Officers of GOCCs under RA3019
MACALINO V. SANDIGANBAYAN AND OFFICE OF
THE OMBUDSMAN
(376 SCRA 452)
*compare with People v. Sandiganbayan, 16 Feb. 2005
Petitioner Macalino and his wife Liwayway S. Tan
were charged with estafa through falsification of
official documents and frustrated estafa through
falsification of mercantile documents. Macalino then is
the Assistant Manager of the Treasury Division and the
Head of the Loans Administration and Insurance Section
of the Philippine National Construction corporation
(PNCC), a government controlled corporation. Petitioner
moved for leave to file a motion to dismiss on the ground
that the Sandiganbayan has no jurisdiction over him
4|Page
since he is not a public officer because the PNCC is not a
government owned or controlled corporation with original
charter.
ISSUE:
WON petitioner, an employee of the PNCC, is a
public officer within the coverage of RA 3019, as
amended.
HELD:
Sec. 13 (2) of art. XI of the 1987 consti and Sec.
15 (2) of RA 6770 provides that one of the powers,
functions and duties of the Office of the Ombudsman is
to direct, upon complaint or at its own instance, any
officer or employee of the government or of any
subdivision, agency or instrumentality thereof, as well as
any government owned or controlled corporation with
original charters, to perform and expedite any act or
duty required by law, or to stop, prevent and correct any
abuse or impropriety in the performance of duties.
Inasmuch as the PNCC has no original charter
as it was incorporated under the general law on
corporations, it follows that petitioner is not a
public officer within the coverage of RA 3019, as
amended. Thus, the Sandiganbayan has no jurisdiction
over him.
*estafa – not office related
PEOPLE V. SANDIGANBAYAN
(FEBUARY 16, 2005)
Private respondent Efren Alas was charged for
violating Sec. 3 (e) of RA 3019. The charges emanated
from the alleged anomalous advertising contracts
entered into by Alas, in his capacity as President and
Chief Operating Officer of the Philippine Postal Savings
Bank (PPSB) with Bagong Buhay Publishing Company
which purportedly caused damage and prejudice to the
gov’t. The records disclosed that while Philippine Postal
Savings Bank is a subsidiary od the Philippine Postal
Corporation wgich is a gov’t-owned corporation, the
same is not created by a special law. It was organized
and incorporated under the Coproration Code which is BP
Blg. 68.
ISSUE:
WON Sandiganbayan has jurisdiction over
presidents, directors or trustees, or managers of
government-owned controlled corporations organized
and incorporated under the Corporation Code for the
purposes of the provisions of RA 3019.
HELD: AFFIRMATIVE
PPSB fits the bill as a GOCC and organized and
incorporated under the corporation Code as a subsidiary
of Philpost. More than 99% of the authorized capital
stock of PPSB belongs to the gov’t while the rest is
nominally held by its incorporators who are/were
themselves officers of PHILPOST.
The legislature, in mandating the inclusion of
“presidents, directors or trustees, or managers of gov’t-
owned or controlled corporations” within the jurisdiction
of the Sandiganbayan, has consistently refrained from
making any distinction with respect to the manner of
their creation. The deliberate omission revelas the
intention of the legislature to include the presidents,
directors or trustees or managers of both types or
corporations within the jurisdiction of the Sandiganbayan
whenever they are involved in graft and corruption. It is
a basic principle of Statutory construction that when the
law does not distinguish, we should not distinguish.
In Quimpo v. Tanodbayan, SC held that the
concerned officers of GOCCs, whether created by special
law or formed under the Corporation Code, come under
the jurisdiction of the Sandiganbayan for purposes of the
provisions of the Anti-Graft and Corruption Practices
Act.
* Sandiganbayan has the power to try because:
1. involved is a high ranking officer
2. office-related
Two cases reconciled: In Macalino, the indictment was
against a mere employee of a GOCC without original
charter – not the president, director, trustee nor
manager, for estafa which is not among those specific
crimes cited in the Sandiganbayan Law (RA 8249). In
PP v. Sandiganbayan, the accused was the President and
COO of the Philippines Postal Savings Bank, a GOCC
without original charter, indicted under RA 3019.So,
GOCCs need not have original charters for
Sandiganbayan jurisdiction to attach for violations
of RA 3019 by Presidents, directors, trustees or
managers.
GEDUSPAN V. PEOPLE
(451 SCRA 187)
Marilyn Geduspan is a Regional
manager/Director of the Philippine Health Insurance
Corporation, a government owned and controlled
corporation created under RA 7875. Geduspan was
accused of violating Sec 3 (e) of RA 3019, the Anti-Graft
and Corrupt Practices Act. It was alleged that in the
course of the performance of her official functions, she
had given unwarranted benefits to Tiong Bi, Inc. to the
damage and injury of West Negros College, Inc.
Petitioner admits that she holds the position of Dept.
Mgr. A of Philhelath. She, however, contends that the
position of Dept. Mgr. A is classified under salary grade
26 and therefore outside the jurisdiction of
Sandiganbayan.
ISSUE:
WON Sandiganbayan has jurisdiction over a
regional director/manager of gov’t owned or controlled
corporations organized and incorporated under the
Corporation Code for purposes of RA 3019.
HELD: AFFIRMATIVE
Petitioner held the position of Dept. Director A of
Philhealth at the time of the commission of the offense
and that position was among those enumerated in
5|Page
paragraph 1 (g) sec. 4a of RA 8249 over which the
Sandiganbayan has jurisdiction.
(g) Presidents, directors, or trustees or
managers of gov’t-owned and controlled corporations,
state universities or educational institutions or
foundations.
It is of no moment that the position of petitioner
is merely classified as salary grade 26. While the first
part of the quoted provision covers only officials of the
executive branch with the salary grade 27 and higher but
who care by express provision of law placed under the
jurisdiction of said court. It is the position (manager in a
gov’t owned or controlled corp.) that petitioner holds,
not her salary grade that determines the jurisdiction of
Sandiganbayan.
ALZAGA, BELLO AND SATUITO V. SANDIGANBAYAN
(505 SCRA 849)
FACTS:
Petitioners were accused of violating Sec. 3(e) of
RA 3019 relative to the alleged irregularities which
attended the purchase of four lots by the Armed Forces
of the Philippines Retirement and Separation Benefits
System (AFP – RSBS). Alzaga and Bello were Vice
Presidents of AFP – RSBS while Sulinto was an
Assistant Vice President. Petitioners filed their respective
Motions to Quash and/or Dismiss the information
alleging that the Sandiganbayan has no jurisdiction
over them and their alleged offenses because the AFP –
RSBS is a private entity created for the benefit of its
members and that their positions and salary grade levels
do not fall within the jurisdiction of the Sandiganbayan
pursuant to Sec. 4 of PD no. 1606 as amended by RA
8249.
ISSUES:
1. WON AFP – RSBS is government owned and
controlled corporation.
2. WON Sandiganbayan has jurisdiction over
the persons or the petitioners
HELD:
1.) YES. AFP – RSBS was established by virtue
of P.D. No. 361 (1973) to guarantee
continuous financial support to the military
retirement system, as provided for in RA 340
(1948). It is similar to GSIS and SSS since it
serves as the system that manages the
retirement and pension funds of those in
military service.
2.) YES. As held in Geduspan v. People, it is the
position held and not the salary grade which
determines the jurisdiction of the
Sandiganbayan. Thus, presidents, directors,
or trustees, or managers of GOCCs are under
the jurisdiction of the Sandiganbayan. The
positions of petitioners are not specifically
enumerated in RA no. 8249; however, as
correctly observed y the Sandiganbayan,
their ranks as Vice President and Assistant
Vice President are even higher than that of
“managers” mentioned in RA 8249.
D. Characteristics
It is not a property which can be subject of inheritance.
Characteristics of Public Office:
1. It is a creation of law or an ordinance
authorized by law. There must be a legal basis in
creating this public office, based on a law or an
ordinance. That is why offices exist because of a
legitimate fiat. In the case of Laurel, the basis was
an executive order.
GENERAL RULE: On the basis of this constitutional
provision against involuntary servitude, no person shall
be forced to accept public position.
EXCEPTION:
1. Article 2, Section 4, Constitution: The primary
duty of the government is to serve the people.
The Government can call on its people to
defend the State, and in the fulfillment of
this duty, people may be required, under
conditions prescribed by law, to render military or
civil service.
2. Posse Comitatus: When the people are required
to render services for the maintenance of peace
and order. This is in the exercise of police power
of the State.
[Latin, Power of the county.]  Referred at Common
Law to  all  males over  the age of fifteen on whom  a she
riff could  call  forassistance in preventing  any type of civi
l disorder.
3. Art. 234 of Revised Penal Code: When a
person is elected by popular election, he
cannot refuse to discharge duties of the
office without legal motive. So it must be with
a legal cause in refusing the position, otherwise
he becomes criminally liable.
Q: Can the president create a public office on the basis
of an executive order? Are you still able to consider
this office a public office since it is not anymore
created by legislature, but rather by an issuance of
the president?
A: Yes, because the basis here of the President in
issuing the Executive Order is the law and the law
is the Revised Administrative Code of the
Philippines (EO 292). EO 292 in fact confers to the
president the power to create such an office.
Example: Presidential Commission on Anti-Graft
and Corruption. The appointments here are also
temporary as when a new regime would follow new
appointments every presidential successor has with
him his own anti-graft office. Then if an individual is
given the duty or the authority to exercise
government functions, then he is therefore
classified as a public officer.
6|Page

2. The office is vested with sovereign functions of
government, defined expressly or impliedly by
law, to be exercised for public interest. There is
a conferment of government powers to a certain
individual. So a person is conferred with
governmental sovereign powers for him to perform
in behalf of the people so he must at all times act
efficiently, etc. as provided by Article 11, Section 1
of the Constitution.
3. Permanence and continuance – permanence will
distinguish that office from mere employment, that is
why a public office is a public trust.
4. An oath of office is not indispensable nor an
integral part of the office. Nevertheless, it is a
qualifying requirement for a public office, a
prerequisite to the full investiture with the
office. It is only when the public officer has
satisfied the prerequisite of oath that his right
to enter in to the position becomes plenary and
complete. The pendency of an election protest is
not sufficient basis to enjoin him from assuming
office or from discharging his functions (Mendoza v
Laxina, Sr., 406 SCRA 156).
5. Strictly personal - One important characteristic
of a public office is that it is strictly personal. Say
you are holding a public office. Can you say that
“when I retire, I want my son to take over my
position?” Public office is not a family corporation. It
is purely personal to the public officer.
GENERAL RULE: A public office is not a property within
the contemplation of the constitution. One who is in
possession of public office cannot claim that it is his. Nor
can he assert that he has a vested right to said office. It
cannot be a subject of a gift, donation or inheritance.
SEGOVIA V. NOEL
(47 PHIL. 543)
EXCEPTION: The case of Segovia vs. Noel wherein the
law itself does not expressly provide that incumbents
ought to be replaced. So, if a person has to be ousted
from his position, it must be made clear by law. It is in
this case that a position may be considered as a
property wherein Segovia has a vested right thereto.
FACTS:
Vicente Segovia was appointed justice of the
peace of Dumanjug, Cebu, on January 21, 1907. He
continuously occupied this position until having
passed sixty-five mile- stones, he was ordered by the
Secretary of Justice on July 1, 1924, to vacate the
office. Since that date, Pedro Noel, the auxiliary
justice of the peace has acted as justice of the peace
for the municipality of Dumanjug.
Mr. Segovia being desirous of avoiding a
public scandal and of opposing physical resistance to
the occupancy of the office of justice of the peace by
the auxiliary justice of the peace, instituted friendly
quo warranto proceedings to inquire into the right of
Pedro Noel to occupy the office of justice of the
peace, to oust the latter therefrom, and to procure
reinstatement as justice of the peace of Dumanjug.
He assailed the constitutionality of section 1 of Act
No. 3107 in that it impairs his contractual right to an
office.
ISSUE: WON that portion of Act No. 3107 which
provides, that justices of the peace and auxiliary
justices of the peace shall be appointed to serve until
they have reached the age of sixty- five years, should
be given retroactive or prospective effect? NO
HELD:
It is a fundamental principle that a public
office cannot be regarded as the property of the
incumbent, and that a public office is not a contract.
However, a sound canon of statutory
construction is that a statute operates prospectively
only and never retroactively, unless the legislative
intent to the contrary is made manifest either by the
express terms of the statute or by necessary
implication. As our Civil Code has it in article 3, "Law
shall not have a retroactive effect unless therein
otherwise provided." The same rule is followed by the
courts with reference to public offices. A well-known
New York decision held that "though there is no
vested right in an office, which may not be
disturbed by legislation, yet the incumbent has,
in a sense, a right to his office. If that right is to
be taken away by statute, the terms should be
clear in which the purpose is stated." In another
case, a new constitutional provision as to the
advanced age which should prevent the incumbents
of certain judicial offices from retaining them was
held prospective; it did not apply to persons in office
at the time of its taking effect.
We hold that the proviso added to section 203 of the
Administrative Code by section 1 of Act No. 3107,
providing that justices and auxiliary justices of the
peace shall be appointed to serve until they have
reached the age of sixty-five years, should be given
prospective effect only, and so is not applicable
to justices of the peace and auxiliary justices of
the peace appointed before Act No. 3107 went
into force.
Note: So, while the rule is no person has a vested right
over public office because it is not a private property, but
nonetheless, if there are two or more claimants to the
same position, and the controversy relates to who is the
rightly entitled to said position, then it comes within the
concept of property where the protective shield of the
due process clause of the Constitution will assert itself.
If there is a need to determine who has the lawful right
to hold office. And what petition has to be filed? Quo
Warranto.
ABEJA V. TANADA & MAYOR RADOVAN
(236 SCRA 62)
Public office not a property which passes to heirs
FACTS:
7|Page
 Petitioner Evelyn Abeja and private
respondent Rosauro Radovan (deceased) were
contenders for the office of municipal mayor of
Pagbilao, Quezon, in the May 11, 1992, national
elections. Based on the official returns of the
Municipal Board of Canvassers for the said
municipality, private respondent was credited with
6,215 votes as against petitioner's 5,951 votes.
Soon after the proclamation of private
respondent, petitioner filed an election contest,
which covered twenty-two (22) precincts.
Private respondent filed an Answer with a
Counter-Protest of the results in thirty-six (36)
precincts. He also filed a counter-claim for
damages. On June 13, 1993, private respondent
Rosauro Radovan died. He was substituted by Vice-
Mayor Conrado de Rama and, surprisingly, by his
surviving spouse, Ediltrudes Radovan.
ISSUE: WON the wife of a deceased contestant in an
election protest may substitute the latter?
HELD: NO.
We find as erroneous the substitution of the
deceased Rosauro Radovan's widow, Ediltrudes
Radovan, on the ground that private respondent had
a counter-claim for damages. "Public office is
personal to the incumbent and is not a property
which passes to his heirs." The heirs may no longer
prosecute the deceased protestee's counter-
claim for damages against the protestant for
that was extinguished when death terminated
his right to occupy the contested office.
DE CASTRO V. COMELEC & JAMILLA
(267 SCRA 806)
FACTS:
Petitioner was proclaimed Mayor of
Gloria, Oriental Mindoro during the May 8,
1995 elections while private respondent was
proclaimed Vice-Mayor. On May 19, 1995,
petitioner's rival candidate, the late Nicolas
M. Jamilla, filed an election protest. During
the pendency of said contest, Jamilla died. Four
days after such death, the trial court dismissed
the election protest ruling as it did that "[a]s this
case is personal, the death of the protestant
extinguishes the case itself. The issue or
issues brought out in this protest have become
moot and academic".
Private respondent(The vice-mayor) filed his
Omnibus Petition/Motion (For Intervention and/or
Substitution with Motion for Reconsideration),
which the trial court denied and stubbornly
held that an election protest being personal
to the protestant, is ipso facto terminated by
the latter's death. He then filed a petition for
certiorari and mandamus before the
COMELEC, which granted the petition. It ruled
that an election contest involves both the
private interests of the rival candidates and
the public interest in the final determination
of the real choice of the electorate, and for
this reason, an election contest necessarily
survives the death of the protestant or the
protestee.
ISSUE: WON an election protest is a personal
action that is extinguished upon the death of the
real party in interest?
HELD:
NO. It is true that a public office is
personal to the public officer and is not a property
transmissible to his heirs upon death. Thus,
applying the doctrine of actio personalis moritur
cum persona, upon the death of the incumbent,
no heir of his may be allowed to continue holding
his office in his place. But while the right to a
public office is personal and exclusive to the
public officer, an election protest is not purely
personal and exclusive to the protestant or
to the protestee such that the death of
either would oust the court of all authority
to continue the protest proceedings.
An election contest, after all, involves not
merely conflicting private aspirations but is
imbued with paramount public interests. In
Vda. de De Mesa v. Mencias, we held: “It is
axiomatic that an election contest, involving as it
does not only the adjudication and settlement of
the private interests of the rival candidates but
also the paramount need of dispelling once and
for all the uncertainty that beclouds the real
choice of the electorate with respect to who
shall discharge the prerogatives of the offices
within their gift, is a proceeding imbued with
public interest which raises it onto a plane over
and above ordinary civil actions.“
The asseveration of petitioner that private
respondent is not a real party in interest entitled
to be substituted in the election protest in place
of the late Jamilla, is utterly without legal basis.
In Vda. de Mesa and Lomugdang, we held that: “.
. . the Vice Mayor elect has the status of a real
party in interest in the continuation of the
proceedings and is entitled to intervene therein.
For if the protest succeeds and the protestee is
unseated, the Vice-Mayor succeeds to the office
of Mayor that becomes vacant if the one duly
elected cannot assume the post.”
OATH OF OFFICE
MENDOZA V. LAXINA SR.
(406 SCRA 156)
8|Page
A qualifying requirement for public office; a
prerequisite to full investiture with the office; right
to enter into office becomes plenary and complete
FACTS:
On May 27, 1997, respondent Laxina Sr. took his
oath as the duly proclaimed Brgy. Captain in Batasan
Hills. Fermo, his rival candidate filed an election protest
and Fermo was declared as the winner. Laxima sr. was
ordered to vacate the position in favor of Fermo. But
such order was annulled and COMELEC directed Fermo to
vacate the office on Nov. 16, 1999, respondent took his
oath of office as Brgy. Capt.
ISSUE:
WON the taking of an oath of office anew by a
duly proclaimed but subsequently unseated local elective
official a condition sine qua non to the validity of his re-
assumption in office.
HELD:
NO. An oath of office is a qualifying requirement
for a public office; a pre-requisite to the full investiture
with the office. Respondent took his oath on May 27,
1997 and thereafter assumed office. He is therefore
vested with all the rights to discharge the functions of his
office. The re-taking of his oath of office on Nov. 16,
1999 was a mere formality considering that his oath
taken on May 27, 1997 operated as a full investiture
on him of the rights of the office.
The taking anew of his oath of office was
not a condition sine qua non to the validity of his
re-assumption in office.
OMBUDSMAN V. JURADO
(561 SCRA 137)
In taking oath, he binds to perform faithfully and act
primarily for benefit of the public
FACTS:
In 1992, Maglei Enterprises Co., (Maglei), a
partnership owned by Rose Cuyos and John Elvin C.
Medina, filed an application before the Bureau of
Customs for the operation of a Customs Bonded
Warehouse (CBW)-Manufacturing Warehouse. As part of
the evaluation of Maglei’s application, CBW Supervisor
Juanito A. Baliwag conducted an inspection of Maglei’s
compliance with structural requirements. Baliwag
submitted a report recommending approval of the
application.
On March 16, 1992, respondent Jurado, who was
then the Chief of the Warehouse Inspection Division,
adopted the recommendation of Baliwag. Maglei’s
application was submitted to Rolando A. Mendoza, Chief
of the MMBWD for his comment and recommendation.
Mendoza reported that Maglei has substantially complied
with the physical and documentary requirements relative
to their application for the operation of a Customs
Bonded Warehouse. Mendoza further recommended that
Maglei’s application be approved.Maglei was finally
granted the authority to establish and operate CBW No.
M-1467 located at 129 J. Bautista, Caloocan City. By
virtue of such authority, Maglei imported various textile
materials which were then transferred to the said
warehouse. Subsequently, on July 8 and 22, 1992,
MMBWD Senior Storekeeper Account Officer George O.
Dizon was tasked by MMBWD Chief Mendoza to check
and verify the status of Maglei’s CBW. Dizon reported
that the subject CBW was existing and operating.
However, upon further verification by the Bureau of
Customs, it was discovered that the purported CBW of
Maglei did not exist at the alleged site in Caloocan City.
Rather, what was reported located at the site was a
School of the Divine Mercy. Only a small signboard
bearing the name "Maglei Enterprises Company" was
posted inconspicuously in the corner of the lot. Further
investigation revealed that Maglei’s shipment of textile
materials disappeared, without proof of the materials
being exported or the corresponding taxes being paid.
ISSUE: Whether or not respondent was negligent in the
performance of his duty, as the chief of the warehousing
inspection division, despite the fact that he did not
ensure that the supposed warehouse was not in
existence
HELD:
YES. The Warehousing Inspection Division is the
inspection and audit arm of the Bureau of Customs.
Respondent Jurado, as chief of the said division, was
duty-bound to verify the accuracy of the reports
furnished by his subordinates. We agree with the
Ombudsman that respondent failed to validate the report
of Baliwag and initiate, institute or recommend the
conduct of appropriate investigation immediately upon
discovery of the irregularity. As a supervisor, respondent
was clearly negligent in the performance of his duties.
It bears stressing that public office is a public trust.
When a public officer takes his oath of office, he
binds himself to perform the duties of his office
faithfully and to use reasonable skill and diligence,
and to act primarily for the benefit of the public.
Thus, in the discharge of his duties, he is to use that
prudence, caution and attention which careful men use
in the management of their affairs. Public officials and
employees are therefore expected to act with utmost
diligence and care in discharging the duties and functions
of their office. Unfortunately, respondent failed to
measure up to this standard. Clearly, respondent should
be held administratively liable for neglect of duty.
Neglect of duty is the failure of an employee to give
proper attention to a task expected of him, signifying
"disregard of a duty resulting from carelessness or
indifference.” By merely acquiescing to the report and
recommendation of his subordinate without verifying its
accuracy, respondent was negligent in overseeing that
the duties and responsibilities of the WID were
performed with utmost responsibility. Respondent was
likewise negligent when he failed, as supervisor, to
initiate, institute, or recommend investigation and
disciplinary proceedings against his subordinate Baliwag
after the anomaly was discovered. Clearly, respondent
failed to exercise the degree of care, skill, and diligence
which the circumstances warrant.
9|Page
 I. General Rule: An individual cannot be forced
to accept a public office as it will violate the
involuntary servitude clause of the
Constitution.
Exceptions:
1) When the office is essential to the defense of
the State. (sec.4, Art.11, 1987 Constitution)
2) When one is elected by the popular election,
he cannot refused to discharge the duties of
the office without level motive (Art. 234,
Revised Penal Code)
3) When one is required to join POSSE
COMITATUS (power of the county). ( NOTE:
Posse Comitatus is a common law term that
compels citizens to help the community in
the maintenance and preservation of peace
and tranquility.
DE FACTO OFFICER
c. There was a defect or irregularity in the
election or appointment
4. Under color of an election or appointment
by or pursuant to a public unconstitutional law,
before the same is adjudicated to be such, the act by
which he is appointed to an office being
unconstitutional and not the act of creating the office
Example: If A was proclaimed by the Board of
Canvassers as the mayor and there was subsequently an
election protest filed by Mr. B. And in that protest, B was
determined the winner and thus A had to vacate his
position. Now, on the basis of this declaration, then
would Mr. A be a usurper? No. He would only be a de
facto officer. Why? Because of the proclamation of
the BOC in his favor. He has a color of right.
Q: Will an election protest prevent a candidate from
taking an oath of office?
A: No. The fact that there is an election protest is not a
basis for the individual not to assume the duties of
public office. (Mendoza vs Laxina??)

A. Definition Q: The prosecutor is appointed by the President, right?

A de facto officer is an officer whose acts done in
good faith and under the law, upon principles of justice
and equity, will be considered valid, because in the eyes
of the public he has a reputation of being the officer he
assumes himself to be. He has a legal basis:
appointment or election. Yet even without
appointment or election, but since there is
acquiescence from the public, then he can be
considered a de facto officer. He assumes his duties
on the basis of a color of right and has a title thereto.
He is legally entitled to the emoluments of the office.
Now lets say, Juan was issued an appointment by
the Governor as a prosecutor of a town. And on
the basis of this appointment, Juan now files an
information in court against Pedro. Can Pedro
question the information itself on the ground that
Juan was not appointed by the President? What is
the status of Juan?
A: He is a de facto officer since there is a color of title.
The appointment issued to him was defective,
but nonetheless, there is semblance of
appointment and thus he is still considered a de
facto officer.

B. ELEMENTS
1. Existence of an office that is created by
law BASIS DE FACTO USURPER DE JURE
2. Physical possession thereto Nature of 1. Exis A person 1. Existen
3. Color of title either by appointment or Office tence who does ce of a
election of an not have de jure
office a color of office
C. REQUISITES that is right or 2. Posses
create title and in sion of
d by fact there the
When any of the following exists: law is no legal legal
1. Without a known appointment or election but 2. Phy basis at qualific
through his reputation or the acquiescence sical all, such as ations
of the people, he has induced the latter, posses when the for the
without injury, to submit to or invoke his action, sion appointm office
supposing him to be the officer he assumed to thereto ent or the accordin
be; 3. Col creation g to the
2. Under color of a known and valid or of of an modes
appointment or election, but where the officer title office is prescrib
has failed to conform to some qualifications or either against ed by
conditions, i.e. taking an oath; by the law or law
3. Under color of a known election or appointment appoin the 3. Lawfull
but which is void because: tment Constitutio y
a. He was not eligible or n, making chosen
b. There is want of power in the electing electio the office to such
or appointing body n legally office

10 | P a g e
 inexistent Compensat receive entitled a matter of
. A ion compensati right; The
person, on only principle
who during the “no work,
despite time when no pay” is
knowledge no de jure inapplicable
that he officer is to him.
does not declared;
have any paid only
right to the for actual
position services
anymore, rendered
continues by him
to perform
functions
of the
office NOTES:
becomes a - For example, the one who is appointing is not
usurper. the duly authorized appointing power but he
Basis of Color of NONE; can Has the still issued the appointment to this individual. He
Authority right be ousted lawful is still considered as a de facto officer even if the
or title anytime in right or appointment is void because precisely there is a
to the any title to color of title either by appointment or
office proceeding the election.
by office - If an office is created pursuant to an
appoin and unconstitutional law, there’s no public
tment cannot office to talk about as such person
or be appointed to such an office is a plain
electio ousted usurper or intruder and one who is classified an
n; can intruder does not even have a color of title, title
be by election or by government so there is no legal
ousted basis not even a color of right to the public
only office.
by a
direct ARIMAO V. TAHER
Quo (498 SCRA 76)
Warra
nto FACTS:
procee Petitioner Arimao was appointed as Director II,
ding Bureau of Non-Formal Education, DECS-ARMM, while
and respondent was appointed Education Supervisor II.
not Petitioner’s appointment was eventually disapproved for
collater failure to meet the experience required for the
ally position and he was ordered to be reverted to her
Validity of Valid as to VOID; can Valid unless former position of Education Supervisor II. Thus,
Official the public be done she and respondent were reporting to the same position.
Acts until his impeached beyond Respondent was enjoined from reporting th TESDA-
title is anytime in the ARMM, however, respondent continued to report as
adjudged any scope of Education Supervisor II. Moreover, petitioner had been
to be proceeding his declared AWOL by reason of her failure to report to her
insufficien unless authority office for at least a year after the expiration of her study
t there is a leave and she was dropped from the payroll.
continuous
discharge ISSUE:
of the Who, as between petitioner and respondent is
function entitled to the position of education Supervisor II
for a long
time, HELD:
giving the Neither petitioner nor respondent is entitled to
presumptio the position. Petitioners promotional appointment as
n that he Director II was disapproved, likewise respondents
has the appointment to Education Supervisor II was invalidated
right to do during respondents occupancy of the position after
such act petitioner’s promotional appointment had been
Rule on Entitled to Not Entitled as disapproved, respondent should be deemed a de facto
11 | P a g e
officer only. A de facto officer is one who has the
reputation of being the officer he assumes and yet he is
not a good officer in point of law.
MENZON V. PETILLA
(197 SCRA 251)
FACTS:
By virtue of the fact that no Governor had been
proclaimed in the province of Leyte, the Secretary of
Local Gov’t. designated the Vice Governor Petilla as
Acting Governor and Sangguniang Panlalawigan Member
Menzon as Vice Governor. The Sangguniang
Panlalawigan issued a resolution invalidating the
appointment of petitioner as Acting Vice Governor.
Petitioner sought the clarification from undersecretary
Rubillar who explained that where the local controversy
in the office of Governor has not yet been settled, it calls
for the SP Member to act as vice governor temporarily.
Despite of this clarification, the acting governor and SP
refused to correct the resolution and to pay the
petitioner emoluments attached to the office of the vice
governor.
ISSUE:
1.) WON the secretary of local government had
the authority to designate the petitioner. YES
2.) WON Petitioner is entitled to receive
emoluments as Acting Vice Governor. YES
HELD:
1.) The dept. Sec. acted correctly in extending
the temporary appointment. The petitioner is
himself the member of the SP who obtained
the highest number of votes.
2.) Even granting that the President, acting
through the sec. of Local Gov’t., possesses
no power to appoint the petitioner, at the
very least, petitioner is a de facto officer
entitled to compensation. The petitioner
assumed the office of the Vice Gov. under
the color a known appointment. The
petitioner, for a long period of time,
exercised the duties attached to the office of
the vice gov. Upon the principle of public
policy, on which the de facto doctrine is
based and basic consideration of justice, it
would be highly iniquitous to deny him the
salary due him for the services he actually
rendered.
Civil Liberties Union v. Executive Secretary
(194 SCRA 317)
In cases where there is no de jure officer, a de facto
officer, who in good faith has had possession and has
discharged the duties of the office, is legally entitled to
the emoluments of the office.
FACTS:
The petitioner are assailing the Executive
Order No. 284 issued by the President allowing cabinet
members, undersecretary or asst. secretaries and other
appointive officials of the executive department to hold
2 positions in the government and government
corporations and to receive additional
compensation. They find it unconstitutional against the
provision provided by Section 13, Article VII prohibiting
the President, Cabinet members and their deputies to
hold any other office or employment. Section 7, par. (2),
Article IX-B further states that “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 corporation or their subsidiaries." In
the opinion of the DOJ as affirmed by the Solicitor
General, the said Executive Order is valid and
constitutional as Section 7 of Article IX-B stated “unless
otherwise allowed by law” which is construed to be
an exemption from that stipulated on Article VII, section
13, such as in the case of the Vice President who is
constitutionally allowed to become a cabinet
member and the Secretary of Justice as ex-officio
member of the Judicial and Bar Council. 
ISSUES:
1.) WON EO 284 is unconstitutional
2.) WON respondents are entitled to
emoluments for actual services rendered
HELD:
1. YES. The court held it is not an exemption since
the legislative intent of both Constitutional
provisions is to prevent government officials
from holding multiple positions in the
government for self enrichment which a betrayal
of public trust. Section 7, Article I-XB is meant to
lay down the general rule applicable to all
elective and appointive public officials and
employees, while Section 13, Article VII is meant
to be the exception applicable only to the
President, the Vice- President, Members of the
Cabinet, their deputies and assistants. Thus the
phrase “unless otherwise provided by the
Constitution” in Section 13, Article VII cannot be
construed as a broad exception from Section 7 of
Article IX-B that is contrary to the legislative
intent of both constitutional provisions. Such
phrase is only limited to and strictly applies only
to particular instances of allowing the VP to
become a cabinet member and the Secretary of
Justice as ex-officio member of the Judicial and
Bar Council. The court thereby declared E.O 284
as null and void.
2. Yes. During their tenure in the questioned positions,
respondents may be considered de facto officers and as
such entitled to emoluments for actual services
rendered. In cases where there is no de jure, officer, a
de facto officer who, in good faith has had possession of
the office and has discharged their duties pertaining
thereto, is legally entitled to the emoluments of the
12 | P a g e
office and may in appropriated action recover the salary,
fees and other compensations attached to the office.
MALALUAN V. COMELEC
(254 SCRA 400)
A usurper is one who undertakes to act officially without
any color of right. Thus, an official who exercises the
duties of an elective office under a color of election
thererto cannot be considered a usurper, and it
matters not that it was the trial court and not the
COMELEC that declared him as the winner, because
both, at different stages of the electoral process, have
the power to so proclaim winners in electoral contests.
FACTS:
Petitioner Luis Malaluan and private respondent
Jose Evangelista were both mayoralty candidates in the
Municipality of Kidapawan, North Cotabato. Private
respondent was proclaimed by the Municipal Board of
Canvassers as the duly elected Mayor with a winning
margin of 706 votes. Petitioner filed an election protest
with the Regional Trial Court. The trial court declared
petitioner as the duly elected municipal mayor with a
plurality of 154 votes. Acting without precedent, the
court found private respondent liable not only for
Malaluan’s protest expenses but also for moral and
exemplary damages and attorney’s fees. Petitioner filed
a motion for execution pending appeal which was
granted by the court. Subsequently the First Division of
the Comelec ordered Malaluan to vacate the office. The
Comelec en banc affirmed said decision. Malaluan filed
this petition for certiorari and prohibition on May 31,
1995 as a consequence. It is significant to note that the
term of office of the local officials elected in the May
1992 elections expired on June 30, 1995. This petition,
thus, has become moot and academic insofar as it
concerns petitioner’s right to the mayoralty seat because
expiration of the term of office contested in the election
protest has the effect of rendering the same moot and
academic.
ISSUES:
1. Whether or no Malaluan is a de facto officer
2. Whether or not the Comelec gravely abused its
discretion in awarding the aforecited damages in favor of
private respondent.
HELD:
1. Yes. He has to be distinguished from a “usurper”
who undertakes to act officially without any title
or color.
The fact that petitioner was only proclaimed
by the RTC (and not by the COMELEC) does not
make his position illegal. It has to be remembered that
both RTC and COMELEC have the concurrent power
to proclaim winners in the electoral process. Thus,
being a de facto officer, who in good faith has had
possession of the office and had discharged the duties
pertaining thereto, Malaluan is legally entitled to the
emoluments of the office. He need not reimburse
Evangelista.
2. The overriding requirement for a valid and
proper award of damages is that the same is in
accordance with law, specifically, the provisions
of the Civil Code pertinent to damages. The
Omnibus Election Code provides that “actual or
compensatory damages may be granted in all
election contests or in quo warranto proceedings
in accordance with law.” Comelec Rules of
Procedure provide that “in all election contests
the Court may adjudicate damages and
attorney’s fees as it may deem just and as
established by the evidence if the aggrieved
party has included such claims in his pleadings.
Notwithstanding his subsequent ouster as a result of an
election protest, an elective official who has been
proclaimed by the Comelec as winner in an electoral
contest and who assumed office and entered into the
performance of the duties of office is entitled to the
compensation, emoluments and allowances legally
provided for that position. The emolument must go to
the person who rendered the service unless the contrary
is provided.
NOTE:
For example is the case of Zubiri and Pimentel.
There was an electoral protest raised by Pimentel. Before
the decision was rendered, Zubiri as the possessor of
this office is entitled to whatever salaries and benefits
pertaining to said position but not after the proclamation
of Pimentel. In fact, Zubiri has to relinquish his position
in favor of Pimentel.
DE JURE OFFICER – An officer who has a lawful right
to the office but he is not in possession thereof. He
has been deprived of such office. The law gives him the
remedy of filing a Petition of Quo Warranto under
Rule 66 of the Rules of Court for him to recover his
office. This quo warranto proceeding may be instituted
either by the state, through the Solicitor General, or by
the person claiming to be lawfully entitled to the
position, unlawfully held or exercised by another. A
person does not have legal standing or personality in
filing this case if he does not claim to be lawfully entitled
thereto.
Requisites:
1. Existence of an office in accordance with law
2. Possession of the legal qualifications for the
office according to the modes prescribed by law
3. Lawfully chosen to such office
TARROSA V. SINGSON
(232 SCRA 553)
Quo warranto as a special civil action (under
Rule 66 of the Revised Rules of Court) can only be
commenced by the SolGen or by any person
claiming to be entitled to a public office or position
unlawfully held or exercised by another.
Facts:
13 | P a g e
 Tarrosa, in his capacity as a taxpayer, seeks
to enjoin the appointment of Singson to the office of
the central bank governor. He alleged that said
appointment needs the affirmation of the COA.
Tarosa wanted the secretary not to pay the salaries of
Singson.
Issues: 1. W/n Tarosa has the capacity to challenge
the appointment of Singson?
2. W/n the appointment was validly made?
Held: Tarosa has no capacity to sue because he
is not claiming that he has the right to the
office. The petition of quo warranto must be by one
who claims to be of dispossessed of the office.
As to the second issue, the provision in the law of the
central bank providing that the appointment of the
governor of the central bank has to be affirmed by
COA is unconstitutional because of Article 7 Section
15. The positions enumerated that need COA
concurrence are exclusive and it is not within the
power of the legislature to expand the coverage of
the Constitution. The position of the central bank
governor not being one of those positions mentioned
in Art 7 sec 15, the appointment thereto is not
subject to the concurrence of COA.
Q: If a judge promulgates a decision when he already
retired, valid or not valid? What if, let us say, that
the person who promulgated the judgment is not the
same person who wrote the decision since the latter
had already retired, valid or not valid?
A: NOT VALID. How can this successor promulgate
a decision which is not his? The law requires that
the judge promulgate this decision in the presence of
the accused, and if at the time of the promulgation
he was no longer a judge, this becomes
questionable.
Q: If gringo succeeds in overthrowing GMA, is it a de
facto or de jure office?
A: It is neither. It is just usurpation of power. His action
violated the constitution. He has no legal
ascendancy. A de facto public officer assumes
office with the acquiescence of the people. This
is not the case of Gringo. A de jure public officer is
one who is ought to hold the office but he is not in
possession of such because he has been deprived of
such office. That is why the only way to oust that
occupant is thru a Petition of Quo Warranto, an
action to terminate lawfully entitled public officer.
QUO WARRANTO PROCEEDINGS
Under Rule 66 of the Rules of Court, it is a special civil
action, a demand by the state upon some
individuals or corporations to show by what right
they exercise some franchise or privilege appertaining
to the state which, according to the Constitution and
laws of the land, they cannot legally exercise except
by virtue of a grant or authority from the state.
The writ of quo warranto is never directed to an officer
as such, but always against the person, to
determine whether he is constitutionally and
legally authorized to perform any act in, or exercise
any function of the office to which he lays claim. Hence,
a judgment in quo warranto does not bind the public
officer’s successor in office (Mendoza vs Allas). It can
only be commenced by the Solicitor General or the
person claiming to be entitled to a public office or
position unlawfully held or exercised by another. Under
Rule 66, Section 11, the aggrieved part must file a Quo
Warranto Petition within one (1) year from the cause
of the ouster or from the dispossession of the
officer of his right to hold such office or position.
MENDOZA V. ALLAS
(302 SCRA 623)
HELD: Quo warranto is a demand by the state
upon some individuals or corporations to show by what
right they exercise some franchise or privilege
appertaining to the state which, according to the
Constitution and laws of the land, they cannot legally
exercise except by virtue of a grant or authority from the
state… The writ of quo warranto is never directed to an
officer as such, but always against the person -- to
determine whether he is constitutionally and legally
authorized to perform any act in, or exercise any
function of the office to which he lays claim. Hence, a
judgment in quo warranto does not bind the public
officer’s successor in office. In this case, what was
threshed out before the trial court was the qualification
and right of Pedro Mendoza to the contested position of
Director III, Customs Intelligence and Investigation
Service of the Bureau of Customs, as against Ray Allas
solely, and not against Allas’ successor – Godofredo
Olores. Allas cannot be held personally liable for
petitioner's back salaries and benefits where the former
was merely appointed to the subject position by the
President in the exercise of his constitutional power as
Chief Executive. Neither can the Bureau of Customs be
compelled to pay petitioner’s back salaries and benefits
as it was not a party to the petition for quo warranto.
LIBAN V. GORDON
(593 SCRA 68)
Since they do not claim to be entitled to the
Senate office of Gordon, petitioners have no legal
standing to file the quo warranto petition to declare him
as having forfeited his seat in the Senate.
ENGANO V. CA
(493 SCRA 324)
FACTS:
Private respondent Arturo W. Alit occupied, since
July 1999, the position of Jail/Chief Superintendent,
Deputy Chief, Bureau of Jail Management and Penology
(BJMP), Department of the Interior and Local
Government (DILG). On March 29, 2001, he was
designated Officer-in-Charge (OIC) of the Bureau in view
of the resignation of then BJMP Director, P/Maj. Gen.
Aquilino G. Jacob, Jr. Petitioner Josue G. Engaño, on the
other hand, held during the period material the position
of Jail Senior Superintendent of the BJMP. The Office of
the President, the Chief Directorate for Personnel of the
14 | P a g e
BJMP submitted to the DILG Selection Board for Senior
Executive Positions (SB-SEP) a seniority lineal list from
which were culled the names of eligible candidates for
the position of Director, BJMP.
Of the eleven (11) candidates interviewed, the
Board ranked private respondent Alit first, being the only
one who fully met the CSC Qualification Standards for
the position in question, more particularly, the one-year
experience requirement as Chief Superintendent.
Consequently, then DILG Secretary Jose D. Lina
recommended the appointment of private respondent Alit
to the interested position.
However, despite Secretary Lina's
recommendation, the President, on September 6, 2001,
appointed petitioner Engaño instead. After being sworn
into office, Engaño appeared to have assumed the post
of BJMP Chief on September 27, 2001.
Eventually the TC rendered judgment in favor of
Alit since Engano does not possess the minimum
qualifications required by law for the position of BJMP
Director.
Meanwhile, Engano retired, he having reached
the retirement age as of that date. Subsequently, PGMA
appointed private respondet Alit as BJMP Director.
ISSUE: Whether Engano is entitled to salary differential,
emoluments, RATA, allowances rank of director and
other benefits
HELD: YES.
The right to salary and other emoluments arising from
public employment is based on one’s valid
appointment or election to the office itself and
accrues from the date of actual commencement of
the discharge of official duties. Jail Sen.
Superintendent Engano, albeit lacking in
qualifications, was nonetheless appointed by the
President as BJMP Director and had entered the
performance of the duties of the position from Sept. 27,
2001 to Oct. 2, 2001 when the appointing authority
recalled his appointment owing to some legal issues
respecting his qualification. He thus served for six days
only, but as de facto officer entitled to
compensation. But respondents DILG Secretary Lina
and BJMP Director Alit cannot be held personally liable
for petitioner’s claim for salary , RATA and other
benefits. The BJMP cannot also be liable since it was not
a party in the quo warranto.
GAMINDE V. COA
(13 DECEMBER 2000)
Facts: Commissioner Gaminde got appointed for a
six-year term. At the expiration of her term, she
continued to perform the functions of the
position on a basis of a legal opinion which she
was able to get in her favor from the Office of the
President. (Take note during the bar about the
Constitutional actions on the rotational scheme
implemented as applied to the Constitutional
Commission term of office.) Under the Constitution,
What are this Constitutional Offices?
1. Civil Service
Commission
2. Commission on Audit
3. Commission on
Election
Held: SC has consistently ruled that for the effective
implementation of the so-called rotational scheme, all
of these Commissioners must have a common thing
in the beginning of their term of office and that
is February 2, 1987. What is the significance of this
date? It is the effectivity of 1987 Constitution. Based
on this, if it is a term of 6 yrs then the term of
Thelma Gaminde ought to end, ousted from the time
of the last day of her predecessor. So if the
predecessor’s term of office ended on February 2,
1993, it follows that even if she assumed office a
month after because the appointment is considered in
a month after Feb 2, 1993, nonetheless this should
not mean an intention to go beyond the term of
office. It follows that if let say a Commissioner is
appointed as to succeed the predecessor
commissioner who was not able to finish his whole
term of office, the validity of the appointment is
only up to the balance of the unexpired term of
office. So let us say if the Constitutional
commissioner has a term of 6 yrs but she was able to
serve only for 4 yrs of the 6 yr term and another
person is appointed and to succeed as commissioner.
Will it be for another 6 yrs? No, only for the
remaining 2 yr term.
In the case of Gaminde, she continued to
perform the duties of the office even after February 2 of
1999 in fact up to the near 2000. Nonetheless, she
is considered a de facto officer. In fact, there was
basis for her to stay and continue in her office, as she
was able to get an opinion in her favor – advise by
the Office of the President. And this rule likewise
applies to her status. So let us say if there is an order
by the COA on the basis of the allowance that this
officer ought to reimburse the government of whatever
salaries and benefits he may receive after the
expiration of the term of office of commissioner
Gaminde, nonetheless the de facto officers in good faith
ought to be allowed to get such salaries and other
benefits.
Q: What is the nature of designation?
A: It is an imposition of additional duties. Take note
that the basis for claim in an office is appointment,
not designation.
NATIONAL AMNESTY COMMISSION V. COA
(437 SCRA 670)
FACTS:
15 | P a g e
 Petitioner National Amnesty  Commission (NAC)
is a government agency created on March 25, 1994 by
then President Fidel V. Ramos through Proclamation No.
347. The NAC is tasked to receive, process and review
amnesty applications. It is composed of seven members:
a Chairperson, three regular members appointed by the
President, and the Secretaries of Justice, National
Defense and Interior and Local Government as ex
officio  members.
            It appears that after personally attending the
initial NAC meetings, the three ex officio members
turned over said responsibility to their representatives
who were paid honoraria beginning December 12, 1994.
However, on October 15, 1997, NAC resident auditor
Eulalia disallowed on audit the payment of honoraria  to
these representatives amounting to P255,750 for the
period December 12, 1994 to June 27, 1997, pursuant to
COA Memorandum No. 97-038.
 
ISSUE:
            Whether representatives can be entitled to
payment intended for ex-officio members
 
RULING:
 
            The representatives in fact assumed their
responsibilities not by virtue of a new appointment
but by mere designation from the ex
officio members who were themselves also
designated as such.
            There is a considerable difference between an
appointment and designation. An appointment is the
selection by the proper authority of an individual who is
to exercise the powers and functions of a given office; a
designation merely connotes an imposition of additional
duties, usually by law, upon a person already in the
public service by virtue of an earlier appointment.
            Designation does not entail payment of
additional benefits or grant upon the person so
designated the right to claim the salary attached to the
position. Without an appointment, a designation does not
entitle the officer to receive the salary of the position.
Appointment Designation
Selection by proper Connotes additional duties
authority
Entitled to salary Not entitled to salary
CIVIL SERVICE
A. Civil service employees cannot be removed or
suspended except for cause as provided by law
(Art. 1X-B, Sec. 2(3), 1987 Constitution; Sec. 36 of PD
807; Sec. 46 of EO 292) [1999 BQ].
B. Purpose of the Civil Service System:
Application of the merit system instead of the spoils
system in the matter of appointment and tenure of
office (Meram vs. Edralin, 154 SCRA 238; Mendoza vs.
Quisumbing, 186 SCRA 108).
- That is to ensure that those appointed to position in the
CS System ought to be in the basis of merit, be it in
promotion, appointment and the like.
MERAM V. EDRALIN
(154 SCRA 238)
FACTS:
There was a vacancy in the position of
Administrative Officer 5 in the Bureau of Forest
Development, now known as the Land Management
Bureau under the DENR. There were two aspirants
Edralin and Meram. Meram occupied the position that
was next in rank and Edralin occupied the position of
training officer. Both wanted to be appointed as the
Chief Administrative Officer 5.
Edralin wrote a letter to the Office of the
President Marcos. She introduced herself as
Edralin married to Efren Edralin of Ilocos Norte,
a relative of the Marcoses. And on the basis of
such good introduction, she was appointed as
Administrative Officer 5 over the objection of Mr.
Meram.
Held: The SC voided the appointment, because this
was contrary to the concept of the Civil Service
System. .Appointments ought to be made on the
basis of merits and fitness to be determined as
far as practicable by competent qualifications or
based on highly technical qualifications. Not so in the
case of Edralin because she got appointed to this
higher position on the basis of blood ties,
kinship.
Note: That is why it is an indispensable requirement if
you enter public service that you must have civil
service eligibility precisely to safe guard
professionalism in the civil service. The basic features
of the civil service system are security of tenure and
merit and fitness. If you got appointed to a position in
the service the presumption here is that you made it in
the basis of merit or fitness rather than based on
bloodlines and if you are appointed to such position in
the career service then you have the security of tenure.
C. Scope: Before the 1987 Constitution, all GOCCs
regardless of whether created in a special law or under
the provisions of the Corporation Code of the Philippines
are covered. Upon the effectivity of the 1987
Constitution, what are covered by the civil service are
“all branches, subdivisions, instrumentalities and
agencies of the government including GOCCs with
original charters.” (Article IX-B, Section 2(1))
- The officers and employees of these GOCCs are
covered, not by the labor laws, but by the civil
service. These employees and officers are within the
jurisdiction of the Civil Service System. So in any
conflict, whether illegal dismissal of an employee, they
16 | P a g e
file their complaints not before the Labor Arbiter, but
before the Civil Service. As such, the CSC is the sole
arbiter of controversies relating to the civil service
(Rimonte v CSC, 244 SCRA 498). Cases involving
personnel actions, including the matter of re-
assignment, promotion, etc., affecting civil service
employees, are within the exclusive jurisdiction of
the CSC (Corsiga v Defensor, 391 SCRA 267).
NOTE:
- There are 2 Kinds of GOCCs. Corporations
without original charters are those subsidiaries
created through GOCCs with original charters
because under that charter of GOCC , it may be
cloaked with power to create a corporation on
the basis of the provisions of general law (Labor
laws).
- On the basis of corporation, only the
officers of GOCCS with original charter are
subject to CSC Rules and regulations.
CORSIGA V. DEFENSOR
(391 SCRA 267)
FACTS:
Private respondent Romeo P. Ortizo was the
Senior Engineer B in the National Irrigation
Administration (NIA), Jalaur-Suague River Irrigation
System, Region VI.
Corsiga, then Regional Irrigation Manager of the NIA,
Region VI, issued Regional Office Memorandum (ROM)
No. 52, reassigning private respondent to Aganan-
Sta. Barbara River Irrigation System, likewise to
assist the Irrigation Superintendent thereat.
[4]
 Aggrieved, private respondent wrote petitioner Corsiga
requesting exemption and citing Memorandum Circular
No. 47, Series of 1987 issued by the NIA Administrator,
which states that the policy of rotation applies only to
Department Managers, Irrigation Superintendents,
Provincial Engineers and Division Manager of Field
Offices. Petitioner denied the request.  On July 31, 1995,
private respondent filed with the Regional Trial Court of
Iloilo City a complaint for prohibition and injunction, with
prayer for issuance of Temporary Restraining Order
and/or Writ of Preliminary Injunction.
ISSUE: Does private respondent have a cause of
action[16] although his complaint was filed in the trial
court without first exhausting all available administrative
remedies?
HELD:
Being an NIA employee covered by the Civil Service
Law, in our view, private respondent should have first
complained to the NIA Administrator, and if
necessary, then appeal to the Civil Service
Commission.[17] As ruled in Abe-Abe vs. Manta, 90
SCRA 524 (1979), if a litigant goes to court without first
pursuing his administrative remedies, his action is
premature, and he has no cause of action to ventilate in
court.  Hence, petitioner asserts that private
respondent’s case is not ripe for judicial determination.
Private respondent contends, however, that the
principle of exhaustion of administrative remedies is not
an absolute rule.  It has exceptions, namely, (1) where
the issue involved is one of law and cannot be resolved
administratively, (2) where the controverted act is
patently illegal, arbitrary, and oppressive, (3) where
irreparable injury exists, (4) where there is no plain,
speedy, and adequate remedy, (5) or where urgent
circumstances require judicial intervention. According to
private respondent, the circumstances of the case
required him to urgently act on his reassignment since
he might be administratively charged if he resisted
petitioner’s order, yet, at the same time he could be in
estopped to question the order had he yielded to it
without protest.
According to private respondent, petitioner was
guilty of bad faith; his real objective was to assign
someone close to him to replace private
respondent.  Petitioner’s action was capricious,
whimsical, arbitrary, and discriminatory, said
private respondent since he was the only one, from
among the officials or employees of the same rank,
who was reassigned.  This discrimination constituted a
grave and patent abuse of discretion amounting to lack
of jurisdiction, against which private respondent said he
had no plain, speedy and adequate remedy in law except
to institute an action before the regional trial court.
However, private respondent failed to reckon with
the fact that the issue in Civil Case No. 22462 was not
purely a question of law.  Certain facts needed to be
resolved first. 
GO V. CA
(626 SCRA 180)
FACTS:
Petitioner Gonzalo S. Go, Jr. (Go) was appointed
in 1980 as Hearing Officer III of the Board of
Transportation (BOT), then the government's land
transportation franchising and regulating agency.
On June 19, 1987, Executive Order No. (EO) 202 5, a
law was issued creating, within the Department of
Transportation and Communications (DOTC), the Land
Transportation Franchising and Regulatory Board
(LTFRB) to replace the BOT. The issuance placed the
LTFRB under the administrative control and supervision
of the DOTC Secretary.6
The DOTC Secretary extended Go a promotional
appointment as Chief Hearing Officer (Chief, Legal
Division), which the CSC later approved. In her
Certification, LTFRB Administrative Division Chief Cynthia
G. Angulo stated that the promotion was to the
position of Attorney VI, Salary Grade (SG)-26.
DBM informed the then DOTC Secretary of the
erroneous classification in the Position Allocation List
(PAL) of the DBM of two positions in his department, one
in the LTFRB and, the other, in the Civil Aeronautics
Board (CAB). The error, according to the DBM, stemmed
from the fact that division chief positions in quasi-judicial
17 | P a g e
or regulatory agencies, whose decisions are immediately
appealable to the department secretary instead of to the
court, are entitled only to Attorney V, SG-25 allocation.
ISSUE: Whether or not appeal Go’s mode of appeal was
proper
HELD: The appellate court is correct in ruling that the
remedy availed of by Go is improper but not for the
reason it proffered. Both Go and the appellate court
overlooked the fact that the instant case involves
personnel action in the government, i.e., Go is
questioning the reallocation and demotion directed
by the DBM which resulted in the diminution of his
benefits. Thus, the proper remedy available to Go is to
question the DBM denial of his protest before the Civil
Service Commission (CSC) which has exclusive
jurisdiction over cases involving personnel actions,
and not before the OP. This was our ruling involving
personnel actions in Mantala v. Salvador,17cralaw cited
inCorsiga v. Defensor 18cralaw and as reiterated
in Olanda v. Bugayong .19cralaw In turn, the resolution of
the CSC may be elevated to the CA under Rule 43
and, finally, before this Court. Consequently, Go
availed himself of the wrong remedy when he went
directly to the CA under Rule 43 without repairing first to
the CSC.
NOTES:
- Generally, the CSC has exclusive authority
over all personnel actions. However,
administrative cases complaints against
government employees, example a DENR
employee who is charged with Grave Misconduct
and dishonesty because he malversed public
funds, the option is to file the case before
DENR (every agency of government is itself
a disciplining authority) and be given the
opportunity to discipline its own employee OR
you may file before the CSC.
- In the City hall for example, when the office
denies the issuance of a permit despite
compliance of the requirements, the complaint
may be filed before the Mayor’s office. The
employee may file a MR before the Mayor’s
Office or he may go directly before the CSC
because under the law, CSC also acts as a
concurrent administrative authority. Third
option is to file before the Office of the
Ombudsman but if there is already a decision
rendered by the same; the appeal is not
before the CSC because they are co-equal. It
should be before the CA.
LAW ON ADMINITRATIVE JURISDICTION v.
PUBLIC SCHOOL TEACHERS
NOTE:
- Under RA 4670, the Magna Carta Act for Public
Teachers, the Department of Education now has
the original jurisdiction over administrative cases
involving public school teachers.
- SECTION 9 of this law (now being implemented
by Sec 2, Chapter VII of DECS Order No. 33,
s.1999, otherwise known as the DECS Rules of
Procedure) provides that there should be an
investigation committee headed by the
district superintendent and the members of
this committee are the district supervisor and the
representative coming from the teacher’s
association.
Coverage of term “TEACHER” : All persons
engaged in classroom teaching on full time basis
including guidance counselors, school librarians,
industrial arts or vocational instructors and all other
persons performing supervisory or administrative
functions.
EXCLUSIONS TO THE TERM “TEACHER”
- Public school teacher in the professional staff of
state colleges or universities
- School nurses, physicians, dentists and other
school employees in the category of medical and
dental personnel
EMIN V. DE LEON
(378 SCRA 143)
CSC does not have original administrative
jurisdiction vs. a public school teacher
FACTS:
Appointment papers for a change of status from
provisional to permanent under Republic Act No. 6850 of
teachers were submitted to the Civil Service Field Office-
Cotabato at Amas, Kidapawan, Cotabato.  Attached to
these appointment papers were photocopies of
certificates of eligibility of the teachers.
Director Gantungan U. Kamed noticed that the
certificates of eligibility were of doubtful
authenticity.  He called the Head Civil Service Field
Officer.  While the certificates seemed to be authentic,
the signature of Civil Service Commission Director Elmer
R. Bartolata and the initials of the processors of said
certificates were clearly forgeries. Director Kamed
initially forwarded five (5) appointments to Civil Service
Regional Office No. XII for verification of their R.A. 6850
eligibilities and for appropriate action through an
indorsement letter dated September 26, 1991.  The
appointment papers of the same nature subsequently
submitted to the Field Office were likewise forwarded to
the CSRO No. XII.
Upon verification of the records of CSRO No. XII, it
was found that said applications for civil service eligibility
under R.A. 6850 were disapproved.  However, the
certificates of eligibility they submitted were genuine as
their control number belonged to the batch issued to
CSRO No. XII by the CSC Central Office.  But the records
showed that these certificates were never issued to any
one.
ISSUE: whether or not the court of appeals erred in
finding that the civil service commission has original
18 | P a g e
jurisdiction over administrative cases against public
school teachers.
HELD: As provided for by Republic Act 4670 otherwise
known as the “Magna Carta  for Public School Teacher,”
specifically, Section 9 thereof, which provides:
Sec. 9. Administrative Charges.- Administrative charges
against a teacher shall be heard initially by a
committee composed of the corresponding School
Superintendent of the Division or a duly authorized
representative who should at least have the rank of a
division supervisor, where the teacher belongs, as
chairman, a representative of the local, or, in its
absence, any existing provincial or national teacher’s
organization and a supervisor of the Division, the last
two to be designated by the Director of Public Schools
within thirty days from the termination of the hearings:
Provided, however, That where the school
superintendent is the complainant or an interested
party, all the members of the committee shall be
appointed by the Secretary of Education.
For public respondent CSC, the Office of the Solicitor
General maintains that original jurisdiction over the
present case is with the CSC pursuant to the Constitution
and P.D. 807 (Civil Service Law) which provide that the
civil service embraces every branch, agency, subdivision,
and instrumentality of the government, including
government-owned or controlled corporations whether
performing governmental or proprietary function.
We find merit in petitioner’s contention that R.A. 4670 is
good law and is applicable to this case.  R.A. 4670 has
not been expressly repealed by the general law P.D. 807,
nor has R.A. 4670 been shown to be inconsistent with
the presidential decree. Section 2 thereof specified those
who are covered by the term  “teacher” as follows:
SEC. 2. Title – Definition. - This Act shall be known as
the “Magna Carta for Public School Teachers” and shall
apply to all public school teachers except those in the
professorial staff of state colleges and universities.
As used in this Act, the term “teacher” shall mean
all persons engaged in classroom teaching, in any
level of instruction, on full-time basis, including guidance
counselors, school librarians, industrial arts or vocational
instructors, and all other persons performing
supervisory and/or administrative functions in all
schools, colleges and universities operated by the
Government or its political subdivisions; but shall not
include school nurses, school physicians, school dentists,
and other school employees.
Petitioner is the Non-Formal Education Supervisor of
the DECS, in Kidapawan, Cotabato, in-charge of the
out-of-school programs. Clearly, petitioner falls under
the category of “all other persons performing
supervisory and/or administrative functions in all
schools, colleges and universities operated by the
government or its political subdivisions.”
Under Section 2 of R.A. 4670, the exclusions in the
coverage of the term “teachers” are limited to: (1) public
school teachers in the professorial staff of state colleges
and universities; and (2) school nurses, school
physicians, school dentists, and other school employees
under the category of “medical and dental personnel”.  
Had Congress intended to exclude an NFE
Division Supervisor from the coverage of R.A.
4670, it could have easily done so by clear and
concise language.
(Principle of Ejusdem Generis-“of the same kind”)
However, at this late hour, the proceedings
conducted by the public respondent CSC can no longer
be nullified on procedural grounds.  Under the principle
of estoppel by laches, petitioner is now barred from
impugning the CSC’s jurisdiction over his case.
But we must stress that nothing herein should be
deemed as overriding the provision in the Magna
Carta  for Teachers on the jurisdiction of the Committee
to investigate public school teachers as such, and the
observance of due process in administrative proceedings
involving them, nor modifying prior decided cases of
teachers on the observance of the said Magna Carta.
Civil Service Commission had afforded petitioner
sufficient opportunity to be heard and defend himself
against charges of participation in faking civil service
eligibilities of certain teachers for a fee.  Not only did he
answer the charges before the CSC Regional Office but
he participated in the hearings of the charges against
him to the extent that we are left with no doubt that his
participation in its proceedings was willful and voluntary.
AMPONG V. CSC
(563 SCRA 293)
Admin supervision over court employee belongs
to SC whether offense was committed before or
after employment in judiciary, but estoppel
applies.
FACTS:
Petitioner Sarah Ampong committed a dishonest
act in taking the PBET exam in place of another person
(Decir). Later she joined RTC. While she was a public
school teacher under the administrative supervision of
DECS does not take her case out of the administrative
reach of the SC. Administrative supervision over a
court employee belongs to the court, regardless of
whether the offense was committed before or after
employment in the judiciary. The CSC should bring its
complaint against her before the Office of the Court
Administrator. However the court affirmed the CSC
decision dismissing her based on the principle of
estoppels as she fully participated in the proceeding
before the CSC. She is estopped from subsequently
attacking the jurisdiction.
19 | P a g e
Nonetheless, even if we hold that the Ombudsman
(Visayas) had concurrent jurisdiction over the
administrative case, we would still sustain the DECS
authority to decide the administrative case. In one case,
the Court pronounced that
 
In any event, since We are not dealing
with jurisdiction but mainly with venue,
considering both court concerned do
have jurisdiction over the cause of action
of the parties herein against each
other, the better rule in the event of
conflict between two courts of
concurrent jurisdiction as in the
present case, is to allow the
litigation to be tried and decided by
the court which, under the
circumstances obtaining in the
controversy, would, in the mind of
this Court, be in a better position
to serve the interests of
justice, considering the nature of the
controversy, the comparative
accessibility of the court to the
parties, having in view their peculiar
positions and capabilities, and other
similar factors. x x x x[60]
 
 
Considering that the respondent is a public school
teacher who is covered by the provisions of Rep. Act No.
4670, the Magna Carta for Public School Teachers, the
DECS-Region VI is in a better position to decide the
matter. Moreover, the DECS has already commenced
proceedings over the administrative case by
constituting the Special Investigating Committee
pursuant to Section 9 of Rep. Act No. 4670.
OMBUDSMAN V. ESTANDARTE
(13 APRIL 2007)
Jurisdiction not lost upon instance of parties
Jurisdiction once acquired is not lost upon
the instance of the parties but continues until the
case is terminated. Thus, when the complainants filed
their formal complaint with DECS Region 6, jurisdiction
was vested on the latter. It cannot be transferred to the
Ombudsman upon the instance of the complainants
even with the acquiescence of the DECS and the
subsequent openness of the Ombudsman to
transfer the case to its office, especially where the
DECS has already commenced proceedings pursuant to
Sec. 19 of RA 4670.
OMBUDSMAN V. DELIJERO,JR.
(10 OCTOBER 2010)
FACTS:
Respondent Pedro Delijero, Jr., was a public
school teacher at the Burauen Comprehensive National
High School, Burauen, Leyte and was administratively
charged for Grave Misconduct. A complaint against
respondent was filed before petitioner Office of the
Ombudsman as a Request for Assistance (RAS) from
the President of the Burauen Watchdog Committee for
Good Government.
The complainant, Cleofas P. dela Cruz, was the
mother of the alleged victim Myra dela Cruz (Myra). At
the time of the incident, Myra was only 12 years old and
a first year high school student at the Burauen
Comprehensive National High School. Respondent, on
the other hand, was Myra's 52-year-old Mathematics
teacher. Sometime in May 2003, complainant learned
from her cousin that respondent was courting her
daughter Myra. Complainant then immediately
confronted Myra, who admitted having received from
respondent several handwritten love letters, a
Valentine's card and Two Hundred Pesos as allowance.
ISSUE: won the office of the ombudsman has full and
complete administrative disciplinary authority over public
school teachers, which authority is concurrent with other
disciplining authorities sanctioned by no less than
republic act no. 4670, otherwise known as "the magna
carta for public school teachers," and the civil service law
(pd 807, book v of eo 292).
HELD:
In Office of the Ombudsman v. Medrano,
(Medrano) this Court ruled that the administrative
disciplinary authority of the Ombudsman over a public
school teacher is not an exclusive power but is
concurrent with the proper committee of the DECS,
to wit:
In resolving the second issue – whether petitioner has
jurisdiction over the administrative complaint against
respondent – it is necessary to examine the source,
nature and extent of the power and authority of the
Ombudsman vis-à-vis the provisions of the Magna Carta
for Public School Teachers.
While petitioner has concurrent administrative
disciplinary authority with the DECS over public school
teachers, Section 23 of the Ombudsman Act of 1989
provides that the Ombudsman may refer a
complaint to the proper disciplinary authority.
Under the circumstances obtaining herein, it would have
been more prudent for petitioner to have referred the
complaint to the DECS given that it would have been
in a better position to serve the interest of justice
considering the nature of the controversy. Respondent is
a public school teacher and is covered by RA 4670,
therefore, the proceedings before the DECS would have
been the more appropriate venue to resolve the dispute.
HIGHER EDUCATION MODERNIZATION ACT
OF 1997 (RA 8282)
- Power of university’s Board of Regents
under RA 8282 to discipline its officials and
20 | P a g e
 employees not exclusive but concurrent with
CSC.
CSC V. SOJOR
(22 MAY 2008)
Facts:
Henry Sojor was appointed president of Central
Visayas Polytechnic College by Pres. Aquino.
Pursuant to the Higher Education Modernization Act of
1997, a Board of Trustees (BOT) was formed as the
governing body in state colleges. The BOT of CVPC
appointed Sojor for 2 terms. CVPC was converted into
Negros Oriental State University (NORSU) and a Board of
Regents (BOR) succeeded the BOT as its governing
body.
Three separate administrative cases were filed
against Sojor by CVCP faculty members before CSC
Regional Office in Cebu for dishonesty, grave
misconduct, nepotism etc. Sojor filed MTD on the
grounds that the CSC lack of jurisdiction since he is a
presidential appointee, part of the non-competitive or
unclassified service, thus exclusively under the
disciplinary jurisdiction of the office of the President, not
the CSC. The CSC ruled that it had jurisdiction over the
cases and Sojor’s claim that he was a presidential
appointee had no basis in fact or in law CSC maintained
that it had concurrent jurisdiction with the BOT of the
CVPC.
The CA rules in favor of Sojor and annulled the
resolutions of the CSC. The Ca ruled that the power to
appointment carries with it the power to remove or to
discipline thus it was the BOR which has jurisdiction not
the CSC.
Issue: whether or not the CSC has jurisdiction.
Held:
Yes, the CSC has jurisdiction over the case. The
constitution grants to the CSC administration over
the entire civil service. As defined, the civil service
embraces every branch, agency, subdivision, and
instrumentality of the government, including every
government-owned or controlled corporation.
The respondent, a state university president with a
fixed term of office appointed by the governing
board of trustees of the university, is a non-career civil
service officer. He was appointed by the chairman and
members of the governing board of CVPC. By clear
provision of law, respondent is non-career civil servant
who is under the jurisdiction of the CSC.
The power of the BOR(Board of Regeant??) to
discipline officials and employees is not
exclusive.  CSC  has concurrent jurisdiction over a
president of a state university.
Although the BOR of NORSU is given the specific power
under R.A. No. 9299 to discipline its employees and
officials, there is no showing that such power is
exclusive. When the law bestows upon a government
body the jurisdiction to hear and decide cases involving
specific matters, it is to be presumed that such
jurisdiction is exclusive unless it be proved that
another body is likewise vested with the same
jurisdiction, in which case, both bodies have concurrent
jurisdiction over the matter. [37]
 
All members of the civil service are under
the jurisdiction of the CSC, unless otherwise
provided by law. Being a non-career civil servant
does not remove respondent from the ambit of
the CSC. Career or non-career, a civil service official or
employee is within the jurisdiction of the CSC.
Test in determining whether a GOCC is covered by
the CSL: The test is the manner of its creation such
that government corporations created by special charter
are subject to its provisions while those incorporated
under the general corporation law are not within its
coverage (PNOC-EDC v Leogardo, 175 SCRA 26). If the
GOCC has its own charter, meaning, it has its own laws
as enacted by congress, then it is covered. Otherwise, if
the GOCC has no original charter and is created by a
general law, incorporated under the Corporation
Code, the officers and employees are governed by
the Labor Code.
However, it is possible for GOCCs with original
charters to create corporations which are still
government-owned. These are known as SUBSIDIARIES.
Subsidiaries are created under the Corporation Code and
hence are not covered by the CSC law. So if an
employee files an illegal termination case, the
competence to hear this matter is not the CS
Commission, but rather the Labor Arbiter.
Example: The Philippine National Oil Company has
its original charter therefore the employees of
PNOC are covered by the CSL rule and regulation.
However, it may happen that the charter itself, the
special law of the GOCC, may give authority for its
subsidiary. The employees under this subsidiary are not
covered by CSL. That is why we have the PNOC-EDC
(Energy Development Corporation). It is an investigative
subsidiary of PNOC. But the fact that the PNOC-EDC was
created under the provision of the general law, that
would mean the employees of the PNOC-EDC are not
covered by CSL but rather by the Labor Code of the
Philippines (PNOC-EDC v Leogardo, supra).
GOCCS NOT COVERED BY CSC
PNOC-EDC V. LEOGARDO
(175 SCRA 26)
Philippines National Oil Company-Energy
Development Corporation (PNOC-EDC) vs. NLRC
222 SCRA 831
21 | P a g e
Facts: Now you have here an employee connected
with PNOC-EDC who was seeking a municipal elected
position. He won as a councilor. But he did not
consider himself as resigned from PNO-EDC despite
the fact that he won. He discharged both offices.
Issue: W/N upon the filing of certificate of candidacy
of an employee of a GOCC, he is deemed to be
automatically resigned under Section 56 of the
OEC?
Held: He argues that this provision Section 56 does
not apply to him because PNO-EDC is created
under the corporation law. The SC ruled that a
GOCC does not lose its character as such even if
it is organized under the general law. If its
capital stock is owned by the government and it is
operated and managed by officers charged with the
mission of fulfilling the public objectives for which it
has been organized, it still comes within the letter of
Section 66 of the Omnibus Election Code, which
declares that: “Any person holding public appointed
office or position including… officers and employees in
GOCCs shall be considered ipso facto resigned from
his office upon the filing of his Certificate of
Candidacy.” This provision itself does not make a
distinction whether it is a GOCC with original charter
or without. Thus, all employees of a GOCC, whether
with or without original charter, particularly an
employee of the PNOC-EDC, a subsidiary of
PNOC incorporated under the Corporation Law,
the general law, shall be considered automatically
resigned upon the filing of the Certificate of
Candidacy.
BLISS DEVELOPMENT CORP. EMPLOYEES UNION V.
CALLEJA
(237 SCRA 271)
FACTS: Petitioner, a duly registered labor union ,
filed with the Department of Labor, National Capital
Region, a petition for certification election of private
respondent Bliss Development Corporation (BDC).
Based on the position papers submitted by the parties,
Med-Arbiter Napoleon V. Fernando dismissed the
petition for lack of jurisdiction stating that the
majority of BDC's stocks is owned by the Human
Settlement Development Corporation (HSDC), a
wholly-owned government corporation. Therefore,
BDC is subject to Civil Service law, rules and
regulations. Petitioner then filed an appeal with the
Bureau of Labor Relations.
In the meantime, or on June 1, 1987 Executive Order
No. 180 was issued the then President Corazon C.
Aquino extending to government employees
the right to organize and bargain collectively.
On August 7, 1987, Director Pura Ferrer-Calleja of the
Bureau of Labor Relations issued an Order dismissing the
appeal.
ISSUE: whether or not Bliss Development Corporation
(BDC) is a government-owned controlled corporation
subject to Civil Service Laws, rules and regulations.
HELD: The petition is impressed with merit.
Section 1 of Executive Order No. 180 expressly limits
its application to only government-owned or
controlled corporations with original charters.
Hence, public respondent's order dated August 7, 1987
requiring petitioner to register in accordance with
Section 7 of executive Order No. 180 is without legal
basis.
Section 1 of Article XII-B, Constitution uses the word
"every" to modify the phrase "government-owned or
controlled corporation."
Every means each one of a group, without exception. It
means all possible and all, taken one by one. Of course,
our decision in this case refers to a corporation created
as a government-owned or controlled
entity. . . . .
A corporation is created by operation of law. It acquires
a judicial personality either by special law or a general
law. The general law under which a private corporation
may be formed or organized is the Corporation Code,
the requirements of which must be complied with
by those wishing to incorporate. Only upon such
compliance will the corporation come into being
and acquire a juridical personality, thus giving rise to
its right to exist and act as a legal entity. On the
other hand, a government corporation is normally
created by special law, referred to often as a
charter.
BDC is a government-owned corporation created under
the Corporation Law. It is without a charter, governed
by the Labor Code and not by the Civil Service Law
hence, Executive Order No. 180 does not apply to
it.
Consequently, public respondent committed grave abuse
of discretion in ordering petition to register under
Section 7, of Executive Order No. 180 as a
precondition for filing a petition for certification election.
LUMANTA V. NLRC
(170 SCRA 79)
Facts: The petitioners here Lumanta et. al were
dismissed by the Food Terminal Inc. (FTI). They
filed a complaint in the DOLE for separation pay
against the FTI. Now take note that this case was
filed with the DOLE and FTI argued that it should be
the CS commission that has the authority and not
the DOLE. This matter was raised before the SC.
Issue: W/N FTI is A GOCC with original charter? NO.
Held: There was this letter of instruction (10-13)
including the FTI in the list of GOCCs, but
22 | P a g e
nonetheless, it served as a marketing arm of the
MGA, the predecessor of NFA. The FTI was
created under the Corporation Code of the
Philippines, a general law and not a special law ,
not in accord with Section 2(1) of Article IX-B of the
1987 Constitution. Therefore the employees of the
Food Terminal Inc. are not covered by the CSC.
Lumanta et al. correctly filed their complaints with
DOLE.
Q. What is the Status of PNRC? Did Gordon
automatically forfeut his Senate seat in holding the
post of NLRC Chair?
A: The PNRC is not a GOCC but a privately owned,
funded and run charitable organization. The vast
majority of those thousands of its members are private
individuals, including students.
LIBAN V. GORDON
(593 SCRA 68)
FACTS: During Richard Gordon’s incumbency as member
of the Senate, he was elected Chairman of the Board of
the Philippine National Red Cross (PNRC). The PNRC was
specially created in 1947 by RA No. 95 in compliance
with the country’s obligations under the Geneva
Convention of 1929. Did Gordon forfeit his seat in the
Senate pursuant to Sec. 13, Art. VI of the Constitution,
prohibiting a Senator from holding any office in a
government-owned or controlled corporation?
Held: No. The PNRC, while created by RA No. 95, is not
a government-owned and controlled corporation,
but a private corporation performing governmental
functions. It is privately-owned, non-profit, donor-
funded, voluntary, humanitarian organization. The PNRC
does not have government assets and does not
receive appropriation from the Congress. Gordon
was elected by the private-sector controlled board, and
not appointed by the President or by any subordinate
government official. Not being a government-official or
employee, the PNRC Chairman does not hold a
government office or employment.
Boyscouts/Girlscouts - They have two fold
personalities:
1. They are a GOCC with original charters; and
2. They are also instrumentalities/agencies of the
government.
Certainly BSP/GSP are covered by the CSC. So
an employee complains that she has been illegally
dismissed, the matter ought to be taken cognizance of
by the CSC. The law itself makes the BSP and the GSP
an adjunct of the DECS. This is merely consistent with
the policy in the Constitution, which is the fostering of
public virtues of citizenship and patriotism. And of
course, the improvement of the moral virtue thru the
BSP and the GSP and these are certainly governmental
aims. In the BSP, there is this so-called national
executive board and who is the chief of staff? The
president whether GSP or BSP. So clearly, there is no
doubt that these offices are covered by GOCC as well as
they are instrumentalities of the government. In fact, in
the executive board itself, apart from the chief scout, we
have department secretaries under the executive branch
being made by law as members thereof. More
particularly, the Secretary of Education (BSP v NLRC,
April 22, 1991).
Philippine National Red Cross - GOCC with original
charter under RA 95, as amended (Baluyot v Holganza,
February 9, 2000).
Duty Free Philippines - The main objective of the DFP
is to generate foreign exchange. It is in fact under the
exclusive authority of the Philippine Tourism Authority,
to augment services connected with tourism. So clearly,
DFP is a GOCC created under EO 46.
Bliss Development Inc. - It is a GOCC without original
charter. In other words, it is a creation under the
Corporation Law. EO 180, which limits its application to
GOCCs with original charters, does not apply to Bliss.
Therefore, its employees are covered not by the
CSL but by the Labor Code (Bliss Development
Corporation Employees Union v Calleja, 237 SCRA 271).
Philippines Veterans Bank - It passes that it is a
GOCC with original charter but nonetheless it is still
not covered by the CSL rules and regulations
because of the express provision of its charter
itself. 51% of the capital stock was subscribed by the
government and under the same law to be transformed
into common shares of stock and turned over to the
veterans and their heirs. What about the remaining
49%? The shares are likewise to be turned over and one
of the features of this charter of PVB is that it should be
operated just like any other commercial bank. So despite
the fact that it has its own original charter, the charter
itself mandates that it shall be treated as a private
institution because of the turn over by the
government to private individuals composed of the
veterans and the heirs.
Philippine Postal Corporation (PPC) – A GOCC with
an original charter and falls within the scope of the
Civil Service. As regards personnel matters, the Civil
Service Law applies to the PPC except those affecting
the compensation structure and position
classification in the corporation which are left, not
absolutely, to the discretion of the PPC Board of
Directors to formulate, in accordance with law, i.e. its
compensation system, including the allowances granted
to PPC employees, must strictly conform with RA
6758 or the Salary Standardization Law in relation
to the General Appropriations Act. To ensure such
compliance, the Board Resolutions must first be reviewed
and approved by the DBM pursuant to Section 6 of PD
1597 which requires the PPC to report to the President,
through the DBM, the details of its salary and
compensation system. (Initia, Jr. v COA, 306 SCRA 610).
Philippine National Bank – Now privatized and
governed by the Labor Code
23 | P a g e
National Housing Authority – A GOCC organized in
accordance with EO 399, the Uniform Charter of
Government Corporations. Its shares of stocks are
owned by GSIS, SSS, DBP, etc. It did not have any
private stockholders.
a. Civil Service Employees cannot be removed or
suspended except for cause as provided by
law ( Art. 9B sec.2 (3), 1987 Constitution; sec
36 of PD 807; Sec. 46 of EO 292)
b. Purpose of the Civil Service System: Application
of the merit system instead of the spoils
system in the matter of appointment and tenure
of office.
c. Scope: The Civil Service embraces all branches,
subdivision, instrumentalities and agencies of the
government including GOCCs with original
charters. (Art. IX-B, sec.2 (1), 1987 Constitution).
As such, it is the sole arbiter of controversies relating
to civil service ( Rimonte vs. CSC, 4SCRA198). Cases
involving personnel actions, reassignment
included, affecting civil service employees, are
within the exclusive jurisdiction of the CSC
(Mantala vs. Salvador, 206SCRA264;Corsiga vs.
Defensor, 391SCRA267).
BSP V. NLRC
(22 APR 1991)
FACTS:
The Secretary-General of petitioner BSP issued
Special Orders Nos. 80, 81, 83, 84 and 85 addressed
separately to the five (5) private respondents, informing
them that on 20 November 1984, they were to be
transferred from the BSP Camp in Makiling to the BSP
Land Grant in Asuncion, Davao del Norte. These Orders
were opposed by private respondents who, on 4
November 1984, appealed the matter to the BSP
National President.
Private respondents were in attendance during
the briefing and they were there assured that their
transfer to Davao del Norte would not involve any
diminution in salary, and that each of them would
receive a relocation allowance equivalent to one (1)
month's basic pay.
A complaint  for illegal transfer was filed with the
then Ministry of Labor and Employment Laguna. Private
respondents there sought to enjoin implementation of
such orders alleging, among other things, that said
orders were "indubitable and irrefutable action[s]
prejudicial not only to [them] but to [their] families and
[would] seriously affect [their] economic stability and
solvency considering the present cost of living."
Petitioner BSP consequently imposed a five-day
suspension on the five (5) private respondents, in the
latter part of January 1985. Subsequently, by Special
Order dated 12 February 1985 issued by the BSP
Secretary-General, private respondents' services were
ordered terminated effective 15 February 1985.
ISSUE: Whether or not private respondent NLRC had
jurisdiction to render the Decision and Resolution which
are here sought to be nullified
HELD: The BSP, petitioner stresses, does not receive any
monetary or financial subsidy from the Government
whether on the national or local level. Petitioner declares
that it is a "purely private organization" directed and
controlled by its National Executive Board the members
of which are, it is said, all "voluntary scouters," including
seven (7) Cabinet Secretaries.
Firstly, BSP's functions as set out in its statutory charter
do have a public aspect. BSP's functions do relate to
the fostering of the public virtues of citizenship
and patriotism and the general improvement of the
moral spirit and fiber of our youth.
The second aspect that the Court must take into
account relates to the governance of the BSP. The
composition of the National Executive Board of the BSP
includes, as noted from Section 5 of its charter quoted
earlier, includes seven (7) Secretaries of Executive
Departments. It does appear therefore that there is
substantial governmental (i.e., Presidential)
participation or intervention in the choice of the
majority of the members of the National Executive Board
of the BSP.
The third aspect relates to the character of the
assets and funds of the BSP. The original assets of the
BSP were acquired by purchase or gift or other equitable
arrangement with the Boy Scouts of America. The BSP
charter, however, does not indicate that such assets
were public or statal in character or had originated from
the Government or the State. 
It thus appears that the BSP may be regarded as
both a "government controlled corporation with an
original charter" and as an "instrumentality" of the
Government within the meaning of Article IX (B) (2) (1)
of the Constitution. It follows that the employees of
petitioner BSP are embraced within the Civil Service and
are accordingly governed by the Civil Service Law and
Regulations.
DFP V. MOJICA
(471 SCRA 776)
FACTS:
The Discipline Committee of petitioner Duty Free
rendered a decision finding respondent Mojica guilty
Neglect of Duty by causing considerable damage to or
loss of materials, assets and property of Duty Free. 
Thus, Mojica was considered forcibly resigned from the
service with forfeiture of all benefits except his salary
and the monetary value of the accrued leave credits.
24 | P a g e
 Mojica was formally informed of his forced
resignation and thereupon, he filed a complaint for illegal
dismissal with prayer for reinstatement, payment of full
back wages, damages, and attorney’s fees, against DFP
before the NLRC.
ISSUE
Whether or not NLRC has jurisdiction over the
controversy.
HELD
The SC held that respondent Mojica is a civil
service employee; therefore, jurisdiction is lodged not
with the NLRC, but with the Civil Service Commission.
Duty Free was created under Executive Order
No. 46 on September 4, 1986 primarily to augment the
service facilities for tourists and to generate
foreign exchange and revenue for the
government.  In order for the government to exercise
direct and effective control and regulation over the tax
and duty free shops, their establishment and operation
was vested in the Ministry, now Department of Tourism,
through its implementing arm, the Philippine
Tourism Authority (PTA).  All the net profits from the
merchandising operations of the shops accrued to the
DOT.
As provided under Presidential Decree (PD) No.
564(special charter), PTA is a corporate body attached to
the DOT.  As an attached agency, the recruitment,
transfer, promotion and dismissal of all its personnel was
governed by a merit system established in
accordance with the civil service rules.  In fact, all
PTA officials and employees are subject to the Civil
Service rules and regulations.
Accordingly, since Duty Free is under the
exclusive authority of the PTA, it follows that its
officials and employees are likewise subject to the
Civil Service rules and regulations.  Clearly then,
Mojica’s recourse to the Labor Arbiter was not proper.  Private respondent Dante Villanueva was
He should have followed the procedure laid down in Duty
Free’s merit system and the Civil Service rules and
regulations.
ALZAGA V. SANDIGANBAYAN
(505 SCRA 848)
Facts:
Petitioners were accused of violating Sec. 3(e) of
RA 3019 relative to the alleged irregularities which
attended the purchase of four lots by the Armed Forces
of the Philippines Retirement and Separation
Benefits System (AFP – RSBS). Alzaga and Bello were
Vice Presidents of AFP – RSBS while Sulinto was an
Assistant Vice President. Petitioners filed their respective
Motions to Quash and/or Dismiss the information
alleging that the Sandiganbayan has no jurisdiction
over them and their alleged offenses because the
AFP – RSBS is a private entity created for the
benefit of its members and that their positions and
salary grade levels do not fall within the jurisdiction of
the Sandiganbayan pursuant to Sec. 4 of PD no. 1606 as
amended by RA 8249.
Issues:
a. WON AFP – RSBS is government owned
and controlled corporation.
b. WON Sandiganbayan has jurisdiction
over the persons or the petitioners
Held:
a.) YES. AFP – RSBS was established by virtue
of P.D. No. 361 (1973)[special charter???]
to guarantee continuous financial support to
the military retirement system, as provided
for in RA 340 (1948). It is similar to GSIS
and SSS since it serves as the system that
manages the retirement and pension funds
of those in military service.
b.) YES. As held in Geduspan v. People, it is
the position held and not the salary
grade which determines the jurisdiction
of the Sandiganbayan. Thus, presidents,
directors, or trustees, or managers of GOCCs
are under the jurisdiction of the
Sandiganbayan. The positions of petitioners
are not specifically enumerated in RA no.
8249; however, as correctly observed by the
Sandiganbayan, their ranks as Vice
President and Assistant Vice President
are even higher than that of “managers”
mentioned in RA 8249.
PD 198 AS AMENDED BY PD 1479 AND RA 9286
HAGONOY WATER DISTRICT V. NLRC
(165 SCRA 272)
FACTS;
employed as service foreman by petitioner Hagonoy
Water District ("Hagonoy") from 3 January 1977 until 16
May 1985, when he was indefinitely suspended and
thereafter dismissed on 12 July 1985 for abandonment
of work and conflict of interest.
On 14 August 1985, private respondent filed a
complaint for illegal dismissal, illegal suspension and
underpayment of wages and emergency cost of living
allowance against petitioner Hagonoy with the then
Ministry of Labor and Employment, Regional Arbitration
Branch III, San Fernando, Pampanga.
Petitioner immediately moved for outright
dismissal of the complaint on the ground of lack of
jurisdiction. Being a government entity, petitioner
claimed, its personnel are governed by the provisions of
25 | P a g e
the Civil Service Law, not by the Labor Code, and
protests concerning the lawfulness of dismissals from the
service fall within the jurisdiction of the Civil Service
Commission, not the Ministry of Labor and Employment.  DCWD v. CSC
ISSUE: whether or not local water districts are
government owned or controlled corporations whose
employees are subject to the provisions of the Civil
Service Law.  debate as to the status of water districts all over the
HELD: YES.
Mr. Justice Gutierrez, held:
There should no longer be any question at this time that
employees of government-owned or controlled
corporations are governed by the civil service law and
civil service rules and regulations.
Section 1. Article XII-B of the [1973] Constitution
specifically provides:
The Civil Service embraces every branch, agency,
subdivision, and instrumentality of the Government,
including every government-owned or controlled
corporation. ...
The inclusion of "government-owned or controlled
corporations" within the embrace of the civil service
shows a deliberate effort of the framers to plug an
earlier loophole which allowed government-owned or
controlled corporations to avoid the full consequences of
the all-encompassing coverage of the, civil service
system. The same explicit intent is shown by the
addition of "agency" and "instrumentality" to branches
and subdivisions of the Government. All offices and firms
of the government are covered.
The NLRC took the position that although petitioner
Hagonoy is a government owned or controlled
corporation, it had no original charter having been
created simply by resolution of a local legislative council.
The NLRC concluded that therefore petitioner Hagonoy
fell outside the scope of the civil service.
At the time the dispute in the case at bar arose,
and at the time the Labor Arbiter rendered his decision
(i.e., 17 March 1986), there is no question that the
applicable law was that spelled out in National Housing
Corporation vs. Juco (supra) and Baguio Water District
vs. Cresenciano B. Trajano (supra) and that under such
applicable law, the Labor Arbiter had no jurisdiction to
render the decision that he in fact rendered. By the time
the public respondent Commission rendered its decision
of 20 August 1987 which is here assailed, the 1987
Constitution had already come into effect. 
We believe and so hold that the 1987
Constitution did not operate retrospectively so as to
confer jurisdiction upon the Labor Arbiter to render a
decision which, under the law applicable at the time of
the rendition of such decision, was clearly outside the
scope of competence of the Labor Arbiter. Thus, the
respondent Commission had nothing before it which it
could pass upon in the exercise of its appellate
jurisdiction. For it is self-evident that a decision rendered
by the Labor Arbiter without jurisdiction over the case is
a complete nullity, vesting no rights and imposing no
liabilities.
(201 SCRA 605)
Prior to the ruling of this case, there was a
country. Here, SC held that local water districts are
quasi-public corporations whose employees are
subject to the Civil Service Law. All water districts
all over the country are GOCCs with original charter,
and what is that original charter? PD 198, the
Provincial Water Utilities Act of 1973. Section 25 of
PD 198, exempting the employees of water districts
from the application of Civil Service Law was repealed
by PD 1479. This is one of the reasons why the CSC
and COA, prior to this ruling, refused to take the
standard that the employees are covered. Not
anymore because that this provision was
already repealed by PD 1479 and the
Constitution. PD 198, as amended, is a special law
that provides for the source of authority and power
for the establishment and operation of water districts.
Now, in the law itself, it mentions the need
for a valid creation that a resolution be adopted by
the Sangguinian. In the case of Davao City, there was
this resolution by the Sanggunian creating the DCWD.
While it is true that a resolution of a local Sanggunian
is still necessary for the final creation of a water
district, said resolution cannot be considered as
its charter, the same being intended only to
implement the provisions of said decree. The
Constitution and existing laws mandate the COA to
audit all government agencies, including GOCCs with
original charters like the water districts (De Jesus v
COA, 403 SCRA 666).
What else are the features of this law that could
justify the conclusion that water district like DCWD
is a GOCC with original charter not covered by
CSL? (1) Matter of appointment; and (2) Matter of
composition of the board of directors. Under PD 198,
the board of directors of water district is composed of
the academe, civic, professional, and business-
commercial sectors. These are appointed by the local
chief executive. So in other words, the manner of
appointing members of the board is provided by the
law itself.
COA AUDIT OF GOCCs
DE JESUS V. COA
(403 SCRA 666)
FACTS:
An auditing team from the COA Regional Office No.
VIII in Candahug, Palo, Leyte, audited the accounts of
the Catbalogan Water District (“CWD”) in Catbalogan,
Samar. The auditing team discovered that between May
to December 1997 and April to June 1998, members of
26 | P a g e
CWD’s interim Board of Directors (“Board”) granted respect to the audit of the Boy Scouts of the
themselves the following benefits: Representation and Philippines.”  The SC ruled, as constituted under its
Transportation Allowance (“RATA”), Rice Allowance, charter, was a “government-controlled corporation within
Productivity Incentive Bonus, Anniversary Bonus, Year- the meaning of Article IX(B)(2)(1) of the Constitution”;
End Bonus and cash gifts. These allowances and bonuses and that “the BSP is appropriately regarded as a
were authorized under Resolution No. 313, series of government instrumentality under the 1987
1995,  of the Local Water Utilities Administration Administrative Code.”
(“LWUA”).
During the audit, the COA audit team issued two The BSP sought reconsideration of the COA Resolution
notices of disallowance dated 1 October 1998 disallowing and avers that it is not subject to the Commission’s
payment of the allowances and bonuses received by jurisdiction on the following grounds:
petitioners.
1.RA 7278 virtually eliminated the
ISSUE: “substantial government
WON COA has jurisdiction to construe any participation” in the National
provision of PD 198 (Provincial Water Utilities Act of Executive Board by removing: (i) the
1973) on the compensation and other benefits granted President of the Philippines and
to LWUA- designated members of the board of water executive secretaries, with the
districts exception of the Secretary of Education,
as members thereof; and (ii) the
HELD: appointment and confirmation power of
The Constitution and existing laws [5] mandate the the President of the Philippines, as Chief
COA to audit all government agencies, including Scout, over the members of the said
government-owned and controlled corporations with Board.
original charters.
The Court already ruled in several cases that a --withdrawal of Govt control is
water district is a government-owned and controlled similar to privatization daw
corporation with a special charter since it is created  
pursuant to a special law, PD 198. The COA has the The BSP believes that the cited case
authority to investigate whether directors, officials or has been superseded by RA 7278.
employees of government-owned and controlled Thereby weakening the case’s
corporations, receiving additional allowances and conclusion that the BSP is a
bonuses, are entitled to such benefits under applicable government-controlled corporation.
laws. Thus, water districts are subject to the jurisdiction 3. Also, the Government, like in other
of the COA. GOCCs, does not have funds invested
in the BSP. What RA 7278 only provides
- PD 198 Expressly Prohibits the Grant of RATA, is that the Government or any of its
EME, and Bonuses to Members of the Board of subdivisions, branches, offices, agencies
Water Districts and instrumentalities can from time to
time donate and contribute funds to the
Section 13 of PD 198, as amended, reads as BSP.
follows: 4. Also, BSP funds are not public funds
daw so should not be the subject of
Compensation.  - Each director shall receive a per audit!
diem, to be determined by the board, for each meeting
of the board actually attended by him, but no director ISSUE: WON BSP falls under the jurisdiction of
shall receive per diems  in any given month in excess of COA
the equivalent of the total per diems  of four meetings in
any given month.  No director shall receive other HELD: YES. BSP is a public corporation and its
compensation for services to the district. funds are subject to the COA’s audit jurisdiction.

Any per diem  in excess of P50 shall be subject to The BSP Charter (Commonwealth Act No. 111,
approval of the Administration.  approved on October 31, 1936), entitled “An Act to
Create a Public Corporation to be Known as the Boy
Scouts of the Philippines, and to Define its Powers and
Purposes” created the BSP as a “public corporation” to
serve the following public interest or purpose:
 
BSP V. COA Sec. 3. The purpose of this
(7 JUNE 2011) corporation shall be to promote
through organization and cooperation
with other agencies, the ability of boys
FACTS: to do useful things for themselves
COA issued Resolution No. 99-011 on 1999, and others, to train them in scoutcraft,
with the subject “Defining the Commission’s policy with and to inculcate in them patriotism, civic
27 | P a g e
 consciousness and responsibility,
courage, self-reliance, discipline and
kindred virtues, and moral values, using
the method which are in common use by
boy scouts.
Evidently, the BSP, which was created by a
special law to serve a public purpose in pursuit of a
constitutional mandate, comes within the class of
“public corporations” defined by paragraph 2, Article
44 of the Civil Code and governed by the law which
creates it, pursuant to Article 45 of the same Code.
The COA maintains that the functions of the
BSP that include, among others, the teaching to
the youth of patriotism, courage, self-reliance, and
kindred virtues, are undeniably sovereign functions
enshrined under the Constitution and discussed by the
Court in Boy Scouts of the Philippines v. National Labor
Relations Commission.   The COA contends that any
attempt to classify the BSP as a private corporation
would be incomprehensible since no less than the law
which created it had designated it as a public corporation
and its statutory mandate embraces performance of
sovereign functions.
The BSP as a Public Corporation under Par. 2,
Art. 2 of the Civil Code
There are three classes of juridical persons under
Article 44 of the Civil Code and the BSP, as presently
constituted under Republic Act No. 7278, falls under
the second classification. Article 44 reads:
Art. 44. The following are juridical
persons:
 
(1) The State and its political
subdivisions;
(2) Other
corporations, institutions and
entities for public interest or
purpose created by law; their
personality begins as soon as they
have been constituted according to
law;
(3) Corporations, partnerships
and associations for private interest or
purpose to which the law grants a
juridical personality, separate and
distinct from that of each shareholder,
partner or member. (Emphases
supplied.)
 
 
The BSP, which is a corporation created for a public
interest or purpose, is subject to the law creating it
under Article 45 of the Civil Code, which provides:
 
Art. 45. Juridical persons
mentioned in Nos. 1 and 2 of the
preceding article are governed by
the laws creating or recognizing
them.
Private corporations are
regulated by laws of general application
on the subject.
The BSPs Classification Under the Administrative
Code of 1987
 
The public, rather than private, character of the BSP
is recognized by the fact that, along with the Girl Scouts
of the Philippines, it is classified as an attached
agency of the DECS under Executive Order No. 292, or
the Administrative Code of 1987
As an attached agency, the BSP enjoys operational
autonomy, as long as policy and program coordination is
achieved by having at least one representative of
government in its governing board, which in the case
of the BSP is the DECS Secretary. In this sense, the
BSP is not under government control or supervision
and control. Still this characteristic does not make
the attached chartered agency a private
corporation covered by the constitutional proscription
in question.
 
Art. XII, Sec. 16 of the Constitution refers to
private corporations created by government for
proprietary or economic/business purposes
 
At the outset, it should be noted that the provision of
Section 16 in issue is found in Article XII of the
Constitution, entitled National Economy and
Patrimony. Section 1 of Article XII.
The scope and coverage of Section 16, Article XII of the
Constitution can be seen from the aforementioned
declaration of state policies and goals which pertains to
national economy and patrimony and the interests
of the people in economic development.
 
Section 16, Article XII deals with the formation,
organization, or regulation of private
corporations, which should be done through a general
law enacted by Congress, provides for an exception, that
is: if the corporation is government owned or
controlled; its creation is in the interest of the
common good; and it meets the test of economic
viability.
It may be gleaned from the above discussion
that Article XII, Section 16 bans the creation of private
corporations by special law. The said constitutional
provision should not be construed so as to prohibit the
creation of public corporations or a corporate agency
or instrumentality of the government intended to serve a
public interest or purpose, which should not be
measured on the basis of economic viability, but
according to the public interest or purpose it serves as
envisioned by paragraph (2), of Article 44 of the
Civil Code and the pertinent provisions of
the Administrative Code of 1987.
 
The BSP is a Public Corporation Not Subject to
the Test of Government Ownership or Control
and Economic Viability
28 | P a g e
 
The BSP is a public corporation or a government agency
or instrumentality with juridical personality, which does
not fall within the constitutional prohibition in
Article XII, Section 16, notwithstanding the
amendments to its charter. Not all corporations, which
are not government owned or controlled, are ipso
facto  to be considered private corporations as there
exists another distinct class of corporations or
chartered institutions which are otherwise known
as public corporations. These corporations are
treated by law as agencies or instrumentalities of
the government which are not subject to the tests of
ownership or control and economic viability but to
different criteria relating to their public
purposes/interests or constitutional policies and
objectives and their administrative relationship to the
government or any of its Departments or Offices.
Classification of Corporations Under Section
16, Article XII of the Constitution on
National Economy and Patrimony
 
 
The dissenting opinion of Associate Justice Antonio T.
Carpio, citing a line of cases, insists that the Constitution
recognizes only two classes
corporations: private corporations under a general law,
and government-owned or controlled
corporations created by special charters.
 
We strongly disagree. Section 16, Article XII
should not be construed so as to prohibit Congress from
creating public corporations. In fact, Congress has
enacted numerous laws creating public corporations or
government agencies or instrumentalities vested with
corporate powers. Moreover, Section 16, Article XII,
which relates to National Economy and Patrimony, could
not have tied the hands of Congress in creating public
corporations to serve any of the constitutional policies or
objectives.
In his dissent, Justice Carpio contends that
this ponente introduces a totally different species of
corporation, which is neither a private corporation nor a
government owned or controlled corporation and, in so
doing, is missing the fact that the BSP, which was
created as a non-stock, non-profit corporation, can only
be either a private corporation or a government owned
or controlled corporation.
 
Note that in Boy Scouts of the Philippines v.
National Labor Relations Commission, the BSP, under its
former charter, was regarded as both a government
owned or controlled corporation with original
charter and a public corporation. The said case
pertinently stated:
 
While the BSP may be seen to
be a mixed type of entity, combining
aspects of both public and private
entities, we believe that considering the
character of its purposes and its
functions, the statutory designation of
the BSP as "a public
corporation" and the substantial
participation of the Government in the
selection of members of the National
Executive Board of the BSP, the BSP, as
presently constituted under its charter,
is a government-controlled
corporation within the meaning of
Article IX (B) (2) (1) of the Constitution.
Furthermore, this Court cannot agree with the dissenting
opinion which equates the changes introduced by
Republic Act No. 7278 to the BSP Charter as clear
manifestation of the intent of Congress to return the BSP
to the private sector. It was not the intent of Congress in
enacting Republic Act No. 7278 to give up all interests in
this basic youth organization, which has been its partner
in forming responsible citizens for decades.
 
Economic Viability and Ownership and
Control Tests Inapplicable to Public
Corporations
 
Thus, the test of economic viability clearly does not
apply to public corporations dealing with
governmental functions, to which category the BSP
belongs. The discussion above conveys the
constitutional intent not to apply this constitutional ban
of on the creation of public corporations where the
economic viability test would be irrelevant. The said
test would only apply if the corporation is engaged in
some economic activity or business function for the
government.
 
It is undisputed that the BSP performs functions that
are impressed with public interest. In fact, during
the consideration of the Senate Bill that eventually
became Republic Act No. 7278.
In fact, as may be seen in the deliberation of the House
Bills that eventually resulted to Republic Act No. 7278,
Congress worked closely with the BSP to rejuvenate the
organization, to bring it back to its former glory reached
under its original charter, Commonwealth Act No. 111,
and to correct the perceived ills introduced by the
amendments to its Charter under Presidential Decree No.
460.  
Therefore, even though the amended BSP charter did
away with most of the governmental presence in the BSP
Board, this was done to more strongly promote the
BSPs objectives, which were not supported under
Presidential Decree No. 460. The BSP objectives, as
pointed out earlier, are consistent with the public
purpose of the promotion of the well-being of the youth,
the future leaders of the country. The amendments
were not done with the view of changing the
character of the BSP into a privatized
corporation.The BSP remains an agency attached to a
department of the government, the DECS, and it was not
at all stripped of its public character.
 
The ownership and control test is likewise irrelevant for a
public corporation like the BSP. To reiterate, the
relationship of the BSP, an attached agency, to the
government, through the DECS, is defined in the Revised
Administrative Code of 1987. The BSP meets the
29 | P a g e
minimum statutory requirement of an attached
government agency as the DECS Secretary sits at
the BSP Board ex officio, thus facilitating the policy
and program coordination between the BSP and the
DECS
 
ZCWD V. BUAT
(232 SCRA 587)
Of course consistently emphasize that if an employee
covered by CSL, it follows that the hiring of that
employee shall be covered the same law. So the
hiring as well as the firing of employee shall be
covered by the CSL rules and regulations. In the case
of this, there was this employee who was dismissed
together with several others. And in fact they filed the
case with the NLRC. And so the issue on who has the
power or authority? But in the Labor authority, this
dismissed employee of the ZWD actively participated.
So they filed pleadings, they filed evidences before
the labor authority. So the usual thing, it should be
the CS commission that has the competence. Now the
SC ruled applying the doctrine of estoppel because
they actively participated in the proceeding they are
now estopped from questioning the jurisdiction of the
NLRC. So the SC realized that it committed an error
in this case.
DOH DR. RODRIGUEZ HOSPITAL V. NLRC
(251 SCRA 700)
You have here an employee of the Tala
Leprosarium who was dismissed from the service and
sought relief from the Labor authority. In fact, he
actively participated in the proceedings before the
labor authority and consequently, the issue on
jurisdiction came out. SC found the labor Arbiter and
the NLRC to have acted in excess of their jurisdiction
since it is the CSC that had jurisdiction over their
case. The established rule is that hiring and firing of
employees of GOCCs with original charter are
governed by the provisions of the Civil Service Law,
rules and regulations.
The SC not anymore adopt the ruling in the
Zamboanga Water District case because it is a
principle that jurisdiction is conferred by law and
cannot be agreed upon by the parties. Thus, SC
ruled that there was no estoppel even though there
was active participation by the employee before the
labor authority. Still, the proceedings there were not
void.
PRA V. BUNAG
(397 SCRA 27)
FACTS:
PRA is a government-owned and controlled
corporation created on July 4, 1985 under Executive
Order No. 1037. Private respondent Jesusito L. Buñag is
the former deputy general manager of petitioner PRA
while private respondent Erlina P. Lozada is the
incumbent department manager of petitioner PRA.
The Office of the President approved the Corporate
Operating Budget of petitioner PRA for calendar year
1992 in the amount of P25,288,091.00. In the same
letter, the amount of P9,129,833.00 representing
unjustified/unauthorized allowances, fringe benefits and
other items was disallowed. Hence, petitioner PRA
reduced the compensation of private respondents and
stopped the payment of RATA and other allowances to
private respondents.
private respondents sought the legal opinion of the
Department of Budget and Management on the
disallowance and reduction of amount of fringe benefits
and other allowances previously received by them.  On
January 11, 1995, the Department of Budget and
Management opined that “the total monthly
compensation and allowances sought have no legal
basis.
ISSUE: Whether or not Court of Appeals erred in
applying the transitory provisions of R.A. No. 6758 in
upholding the continued grant of compensation and
allowances received by private respondents prior to the
effectivity of said law
HELD: The rationale for the review authority of the
Department of Budget and Management is obvious. Even
prior to R.A. No. 6758, the declared policy of the national
government is to provide “equal pay for
substantially equal work and to base
differences in pay upon substantive
differences in duties and responsibilities , and
qualification requirements of the positions.” To
implement this policy, P.D.  No. 985 provided for the
standardized compensation of government employees
and officials, including those in government-owned and
controlled corporations.  Subsequently, P.D. No. 1597
was enacted prescribing the duties to be followed by
agencies and offices exempt from coverage of the rules
and regulations of the Office of Compensation and
Position Classification. The intention, therefore, was to
provide a compensation standardization scheme
such that notwithstanding any exemptions from
the coverage of the Office of Compensation and
Position Classification, the exempt government entity
or office is still required to observe the policies
and guidelines issued by the President and to
submit a report to the Budget Commission on
matters concerning position classification and
compensation plans, policies, rates and other related
details.  This ought to be the interpretation if the avowed
policy of compensation standardization in government is
to be given full effect. The policy of “equal pay for
substantially equal work” will be an empty directive if
government entities exempt from the coverage of the
Office of Compensation and Position Classification may
freely impose any type of salary scheme, benefit or
monetary incentive to its employees in any amount,
without regard to the compensation plan implemented in
the other government agencies or entities. Thus, even
prior to the passage of R.A No. 6758, consistent with the
30 | P a g e
salary standardization laws in effect, the compensation
and benefits scheme of PRA is subject to the
review of the Department of Budget and
Management.
GOCC Governance Act of 2011 (RA 10149)
“GOCC Governance Act of 2011”
Salient Provisions:
- Promotes financial viability and fiscal
discipline in GOCCs thru the governance
Commission for GOCCs
- Evaluates performance and relevance of GOCCs,
monitors their operations
- Repeals GOCCs’ charters which f the
directors’ term by reducing it to 1 yr.
- Incumbents up to June 30, 2011
- Per diems for actual attendance…incentives as
authorized by GCG
The abolition of the Career Executive Service Board
by the CSC was an ULTRA VIRES act.
Eugenio vs. CSC, GR 115863, 31 march 1995
 CSC has no power to abolish CESB
 The 1. The powers of the CSC to
reorganize are confined to offices under
its control. Although administratively
attached to the CSC, the board was intended
by the legislature to be an autonomous
entity.
Rubenecia vs. CSC, GR 115942, 31 may 1995
 The CSC has the power to assume
disciplinary cases involving public officers
filed before the MSPB.
 The CSC has authority to abolish the
Merit system and Protection Board
(MSPB) and to take cognizance of cases
that had been elevated to the MSPB. The
MSPB was created by law as part of the
integral structure and organization of the
CSC and thus a proper subject of
organizational change which the CSC is
authorized to undertake under Sec. 17, Book
V of the present Civil Service Law.
 (Sec. 17, Book V of the present Civil Service
Law.) Sec. 17. Organizational Structure. -
Each office of the Commission shall be
headed by a Director with at least one (1)
Assistant Director, and may have such
divisions as are necessary to carry out their
respective functions. As an independent
constitutional body, the Commission may
effect changes in the organization as the
need arises. (Emphasis supplied).
Fernando vs. Sto. Thomas, 234SCRA 548
 Since the CSC had abolished the MSPB,
pursuant to Section 17, Book V of the
Administrative Code, it is the CSC itself that
could rule on appealed decisions in
administrative cases involving officials and
employees of the civil service.
II. Classification of Civil Service
1.) Under PD 807 and EO 292
a. Career Service is characterized by:
a. Entrance based on merit and
fitness to be determined as far as
practicable by competitive
examinations or based on highly
technical qualifications;
b. Opportunity for advancement;
and
c. security of tenure
Under PD 807 and EO 292
Career service
Characteristics:
a. Entrance based on merits and fitness to be
determined as far as practicable by competitive
examinations, or based on highly technical
qualifications
b. Opportunity for advancement to a higher position
c. Has security of tenure
Three Levels:
a. Open career positions / Sub-Professional –
The first level; Positions which appointment to
the same would require prior qualifying
examination as a requisite; Has security of
tenure with regard to position; pertains to the
lower positions in the service; merely clerical
and there is no exercise of discretion
b. Close career positions / Professional – The
second level; Has security of tenure with regard
to position; supervisory, technical, scientific,
positions in the academe or faculty and academic
positions in State universities
c. Career executive service – The third level;
Officers which do not belong to the CES but are
appointed by the President; Has security of
tenure with regard to rank; pertain to higher
positions in the bureaucracy from the rank of
Admission Chief up, Under Secretary, senior
administrators, etc.
CIVIL SERVICE ELIGIBILITY BOARD - The purpose
for creating the CESB is to have a pool of professional
administrators, supervisors to run the
bureaucracy.
The abolition of the Career Executive Service
Board (CESB) by the CSC was an ultra vires act.
The Board has been created by law, PD 1, September
1, 1974, and could only be abolished by the
legislature. The powers of the CSC to reorganize are
31 | P a g e
confined to offices under its control. Although
administratively attached to the CSC, the Board
was intended by the legislature to be an
autonomous entity (Eugenio v CSC, March 31,
1995). On the other hand, the Court sustained the
CSC’s authority to abolish the Merit System and
Protection Board (MSPB) and to take cognizance of
cases that had been elevated to the MSPB. The Court,
relying on the language of PD 1409 that created MSPB
“in the Civil Service Commission” and the 1987
Administrative Code that re-created the Board as an
office of the CSC, ruled that the MSPB was created by
law as part of the integral structure and organization of
the CSC and “thus a proper subject of organizational
change which the CSC is authorized to undertake under
Section 17, Book V of the present Civil Service Law
(Rubencia v CSC, May 31, 1995).
SECURITY OF TENURE – Article IX-B, Section 2(3) of
the 1987 Constitution states that “Civil service
employees cannot be removed or suspended except for
cause as provided by law.” (See also Section 36 of PD
807 and Section 40 of EO 292).
Note: The guarantee of security of tenure under the
Constitution is not a guarantee of perpetual
employment. It only means that an employee
cannot be dismissed or transferred form the
service for causes other than those provided by
law and only after due process has been accorded
the employee. But where it is the law-making
authority itself which furnishes the ground for the
transfer of a class of employees, no such capriciousness
can be raised (De Guzman, Jr. v COMELEC, 336 SCRA
188).
- Qualification in an appropriate exam is
required for appointment to positions in the
first and second levels in the career service;
provided that whenever there is a civil service
eligible actually available for appointment, no
person who is not an eligible shall be
appointed even in a temporary capacity
EXCEPTIONS:
a. when immediate filling of vacancy is
urgently required
b. when vacancy is not permanent
PALMERA V. CSC
(235 SCRA 87)
FACTS:
Petitioner started working in the government in
1953 and has held various positions in the Ministry of
Public Works. Upon the merger of the Ministry of Public
Works and the Ministry of Public Highways, he was
appointed Assistant Regional Director of NCR.
Palmera was directed to turn over his office
to Pacifico Mendoza (who had been assigned thereat
as OIC) and to report to the MPWH Central Office for his
new assignment.
DPWH Secretary Vicente R. Jayme charged Palmera,
along with several others, with grave misconduct and
dishonesty in two administrative cases . Thereafter, all
the respondents were placed under 90-day preventive
suspension, which was lifted on November 16, 1987.
Another Memorandum was issued charging Palmera,
together with other respondents, with grave misconduct
and dishonesty. In this case, Palmera was again placed
under preventive suspension.
Thereafter, all the respondents were placed under 90-
day preventive suspension, which was lifted on
November 16, 1987.
On May 19, 1988, Palmera's second preventive
suspension was lifted but he was no longer ordered
reinstated.
The petitioner alleges that it was while he was still under
preventive suspension that he learned of Pacifico
Mendoza's appointment to his position. Palmera said he
was repeatedly assured he would be appointed to
another position but no such appointment was ever
extended him.
ISSUE: WON Palmera’s right of security of tenure was
violated
HELD:
YES. It is not disputed that the petitioner has
the constitutional right to security of tenure. P. D.
807 specifically includes the position of Assistant
Regional Director in the Career Executive Service. The
career service is characterized by (1) entrance based on
merit and fitness to be determined as far as practicable
by competitive examination, or based on highly technical
qualifications; (2) opportunity for advancement to higher
career positions; and (3) security of tenure.
Palmera had no intention to abandon his
permanent position and his security of tenure therein.
The petitioner had been working in the government for
about 34 years. It cannot be reasonably supposed that
by signing the contract, he was knowingly relinquishing
his permanent post and all his concomitant rights,
including his accrued leave benefits. Furthermore, the
petitioner was already getting on in years and could not
afford to face an uncertain future without a regular and
steady income. It can be inferred from this statement
that Palmera did not seek to be appointed as Technical
Assistant to the Secretary. He was not informed of the
real objective of contract. He was made to understand
that the contract was merely for the sake of formality, to
give some legal basis for his compensation for 1987.
ASTRAQUILLO V. MANGLAPUS &MELCHOR V. SAEZ
(190 SCRA 281)
FACTS:
32 | P a g e
 Petitioners are ambassadors of the
Philippines to foreign countries. Astraquillo was assigned
to the UAE, Glang to Kuwait, and Melchor to Moscow,
USSR. They were also appointed as chief of mission of
their respective posts. All three of them received a
written communication from the Secretary of Foreign
Affairs, Manglapus, stating their termination from office.
These were either approved by the President or issued
by her authority as president. (they allegedly committed
various offenses, ie. establishing private restaurants,
illegally issuing visas to persons, leaving the post without
permission). They contend that the act of termination
was illegal and would violate RA 704, the Foreign Service
Act of 1952. They argue that since they were appointed
Chief of Missions, they are entitled to security of tenure
and removable only for a cause and not at the pleasure
of the President.
ISSUE: Whether they enjoy security of tenure/ removal
for a cause?
SC: NO.
By statutory standards, it seems plain that all 3
of them pertained to the Non-Career Service. Their
appointments to the Foreign Serrvice were made on the
basis other than those of the usual test of fitness
and merit utilized for the career service. Their
entrance was not based on merit and fitness determined
by competitive exams, or based on highly technical
qualifications. This being so, their tenure was coterminus
with that of the appointing authority, or subject to his
pleasure.
Their appointment as chief of missions in their
respective posts simply meant that as ambassadors
extraordinary and plenipotentiary, they were being
placed in charge of the embassy or legation. It seems
evident that even without being named chief of mission,
the fact that they were the highest ranking official in
their respective embassies would operate to place them
in charge thereof as a matter of course. This aspect of
being “chief of mission” has no effect on the essential
character of their position as pertaining to NON-
CAREER SERVICE. Their termination of their connection
with the Foreign Service was not dependent on proof of
some legally recognized caused therefor, after due notice
and hearing. The termination lays entirely on the
will of the President, in the exercise of her
discretion, and her determination of the wisdom,
necessity and convenience of such step in national
interest, which is actually a political decision.
Termination was valid. Ambassadors pertained to Non-
Career Service (political appointees).
CSC, PAGCOR V. SALAS
(274 SCRA 414)
FACTS:
Salas was appointed by the Pagcor Chairman,
as Internal Security Staff at the Manila Pavillion Hotel
Casino.
Salas’ employment was terminated by the
Board of Pagcor, due to loss of confidence. He was
engaged in proxy betting. Salas requested the Board for
reinvestigation. Denied. He later appealed to the MSPB
(Merit Systems Protection Board). Denied also. The
reason was that he was a confidential employee, and
that Salas was not dismissed from the service, only that
his term of office merely expired (by the loss of
confidence). He appealed to the CSC. Denied again. He
appealed to the CA. The CA rendered a decision finding
that Salas is not a confidential employee, hence cannot
be dismissed on ground of loss of confidence. The CA
applied the PROXIMITY RULE.
CSC appealed the ruling. CSC contends that PD
1869, which created Pagcor, treats all employees of the
casino as confidential appointees, and that based on the
function as member of Internal Security, Salas occupies
a confidential position. CSC reiterates the rulings of the
MSPB. CSC argues also that even if Salas occupied the
lowest position in the organizational ladder, he still
performed one of the most sensitive positions in the
corporation.
Salas on the other hand, argued that it is the actual
nature of the employee’s function and not the
designation which should determine whether the position
is primarily confidential
ISSUE: Is Salas a confidential employee?
SC: NOT CONFIDENTIAL.
There are 2 instances when a position may be
considered primarily confidential:
1) when the President, upon CSC recommendation,
declares a position to be such
2) in the absence of such declaration, when by the
nature of the functions of office, there exists a
close intimacy between the appointee and the
appointing power, which insures freedom of
intercourse without embarrassment or freedom from
misgivings of betrayals of personal trust, or confidential
matters of state.
Since the enactment of the Civil Service Law of
1959, it is the nature of the position which finally
determines whether a position is primarily
confidential, policy determining or highly technical.
The PD 1869 (which says that Pagcor employees are
confidential), is merely an initial determination that
is NOT CONCLUSIVE in case of conflict. Thus, Sec 16
of PD1869 cannot be given a literally stringent
application without compromising the constitutionally
protected right of an employee to security of tenure.
IN the deliberations of the Con-Com, Fr. B said
that the initial determination is made by the
legislative, but the final decision is done by the
court. Thus, the SC has the final say whether a position
is policy determining, primarily confidential or highly
technical. It is determined not by its title, but by the
NATURE OF THE TASK THAT IS ENTRUSTED TO IT.
Fr. B further says that it is not enough that the
law calls it primarily confidential to make it such, it is the
NATURE OF THE DUTIES which makes it
confidential.
33 | P a g e
 Thus, it is apparent that the purpose of declaring
a position to be policy determining, primarily
confidential, or highly technical, is to EXEMPT THESE
CATEGORIES from COMPETITIVE EXAM as a means
for determining fitness and merit. These positions are
still covered by security of tenure, although they
are considered NON-COMPETITIVE only in the
sense that the appointees do NOT HAVE TO
UNDERGO COMPETITIVE EXAM for purposes of
determining merit and fitness.
Thus, the contention that Pagcor employees are
declared confidential appointees by operation of law
must be rejected.
As to the proximity rule, still Salas is not a
confidential employee.
Every appointment implies confidence., but much more
than ordinary confidence reposed in the occupant of a
position that is primarily confidential. To be considered
as such, the predominant reason why he was chose by
the appointing authority should be was the latter’s belief
that he can share a close intimate relationship with
the occupant, which ensures freedom of discussion,
without fear of embarrassment or misgivings of possible
betrayal of personal trust or confidential matters of
state.
PROXIMITY RULE: Where the position occupied is remote
from that of the appointing authority, the element of
trust between them is no longer predominant. Hence not
confidential.
Here, there is no close intimacy between a Internal
Security Staff and the Chairman of the Pagcor. Although
appointed by the Chairman, he does not directly report
to the Chairman, but to the Area Supervisor. As the
lowest in the chain of command, Salas does not enjoy
primarily close intimacy which characterizes confidential
employee. Lastly, a Security Staff belongs to the bottom
of the level of salary scale, having a Pay Class 2 only,
where the highest level is Class 12.
NON-CAREER SERVICE
b. a. Characteristics
1. Entrances on bases other than those
of the usual test of merit and fitness;
and
2. Tenure is limited to a period specified
by law, or is co-terminus with that of
the appointing authority or subject to
his pleasure, or limited to the duration of
a particular project. The non-career
service shall include x x x Chairman and
members of commissions and boards
with fixed terms of office and their
personal or confidential staff.
b. The following are included in the non-career
service:
1. Elective officials and their personal or
confidential staff
2. Department heads and their officials or
Cabinet Rank
3. Chairman and members of Commissions
and boards with fixed terms of office and their
personal or confidential staff
4. Contractual personnel
5. Emergency and casual personnel
Jocom v. Robredo
(201 SCRA 73)
Regardless of the classification of the position held
by a government employee covered by civil service
service rules, be it career or non-career position,
such employee may not be removed without just
cause. An employee who belongs to the non-
career service is protected from removal or
suspension without just cause and non-
observance of due process.
Office of the President v. Buenaobra
(501 SCRA 303)
FACTS:
The Office of the Ombudsman’s Special Prosecution
Officer filed an information against respondent Nita P.
Buenaobra, Chairman of the Komisyon sa Wikang Pilipino
(KWP), with the Sandiganbayan for violation of Section
3(e) of Republic Act (R.A.) No. 3019 for allegedly
causing undue injury to the government through gross
inexcusable negligence in connection with the
unauthorized reprinting of the Diksyunaryo ng Wikang
Pilipino. Sandiganbayan ordered a reinvestigation. While
reinvestigation of the Sandiganbayan case was on-going,
the Presidential Anti-Graft Commission (PAGC)
conducted a parallel administrative investigation against
respondent charging her with the same acts and
omissions subject of the Sandiganbayan case. 
The PAGC denied respondent’s motion to dismiss and
recommended respondent’s dismissal from the service,
forfeiture of financial benefits, and disqualification from
joining the government. petitioner adopted PAGC’s
recommendation and dismissed respondent from office. [
ISSUE:
WON there was a violation of Buenaobra’s security of
tenure
HELD: YES. We have consistently ruled that non-career
service personnel enjoy security of tenure.  They may
not be removed without just cause and non-observance
of due process.  The constitutional and statutory
guarantee of security of tenure is extended to both
those in the career and non-career service
positions, and the cause under which an employee may
be removed or suspended must naturally have some
relation to the character or fitness of the officer or
employee, for the discharge of the functions of his office,
34 | P a g e
or expiration of the project for which the employment
was extended.
 
Under Art. IX-B, Sec. 2 (2) of the 1987 Constitution
a. Competitive positions-
appointments made according to
merit and fitness
b. Non-competitive Positions: those
by their nature
1. Primary Confidential –
denotes not only
confidence in the aptitude
of the appointee for the
duties of the office but
primarily close intimacy
which insures freedom
of intercourse without
embarrassment or
freedom from misgiving or
betrayals of personal trust
on confidential matters of
state.
2. Policy determining – one
charged with the duty to
formulate a method of
action for the
government or any of its
subdivisions.
3. Highly Technical – if the
occupant is required to
possess a technical skill or
training in the supreme or
superior degree.
1. Competitive position – Appointments are made
based on merit and fitness, through the successful
passage of an exam. (murag career)
2. Non-competitive position – Appointments which
are by nature, primarily confidential, policy
determining, and highly technical, hence, no need
to pass an exam.
POLICY DETERMINING – Charged with the duty to
formulate a method of action for the government
HIGHLY TECHNICAL – The occupant is required to
possess a technical skill or training in the superior
degree
PRIMARILY CONFIEDENTIAL – The appointee
possesses not only the aptitude for such position, but
more than that, there exists utmost trust and
confidence. There is freedom from betrayal of trust on
public matters. He can be replaced and there is no need
to show that his separation is with cause precisely
because he is removed on the ground of loss of
confidence, because their term of office lasts only
as long as confidence in them endures. When such
confidence is lost and the officer holding such position is
separated from the service, such cessation entails
no removal but an expiration of term.
PROXIMITY RULE: Employees are considered
confidential if the predominant reason why they are
chosen by the appointing authority is the latter’s belief
that he can share a close intimate relationship with the
occupant which insures freedom of intercourse without
embarrassment or freedom from misgivings or betrayals
of personal trust on confidential matters of the state.
The appointee must have close relationship with the
appointing authority; must report directly to the
appointing officer. (CSC v Salas )
Examples: Under Section 480 of RA 7160, the position
of administrator, which is mandatory for provinces and
cities, is classified as primarily confidential. So one who
is appointed as city administrator, if the mayor says to
him that he (mayor) no longer trusts him (administrator)
and tells him to pack up, that can be done and there is
no violation of security of tenure under the Constitution
because the cause here is loss of confidence. Under
Section 481, the position of legal officer, which is
mandatory for provinces and cities, is likewise classified
as primarily confidential.
CSC v. SALAS
(274 SCRA 414)
Rafael Salas was appointed by the PAGCOR Chairman
as Internal Security Staff at the Casino Manila
Pavilion Hotel. He was terminated on the ground of
“loss of confidence” for being involved in a proxy
betting. CA ruled that he was not a confidential
employee. SC held that Salas was not a confidential
employee, taking into consideration the nature of his
function, his organizational ranking and his
compensation level. He had routinary duties which
do not show close intimacy with the PAGCOR
Chairman. He was only two positions away from the
Chairman. And he belonged to the highest level-pay
Class 12 compared with the bottom level pay Class 2.
Notes:
1. It is not the name
or nomenclature given to by the parties to the
position that make it primarily confidential, policy
determining, or highly technical, but rather the
nature of the position. In the obiter dictum of the
SC in Deperio case (Santos), the position of
permanent representative to the United Nations in
Geneva is still classified as non-permanent item. It
is a temporary office and thus the appointee
there cannot claim a violation of security of
tenure if should be replaced by let say the sec of
foreign affairs or by the president.
2. Take note that the
President has the power to classify a position
as primarily confidential, highly technical, etc.
but upon recommendation of the CSC. But
whatever declaration the President makes, that
declaration is not conclusive because the power to
declare with finality belongs to the judiciary. It is
the court which has the final say.
35 | P a g e

3. The distinction
made in the Constitution (i.e. competitive and non-
competitive) pertains only to the manner of addition
to the service whether or not there is a need for
examination to test your merits and fitness. It
does not speak of this feature found in the CS Law
which is about security of tenure. Why? Because
take note, in the case of a highly technical
position, it still has security of tenure. Unlike a
primarily confidential position which does not
have security of tenure.
Although we may say that a career position may be
equivalent to a competitive position, not so in the
case of non-competitive position being similar as a
non-career position. Because a position may be both
policy determining or highly technical; or it may be
primarily confidential and policy determining. But
nonetheless, it is not a guarantee that a person
appointed to a non-competitive position has security
of tenure.(unlike non-career who still has security of
tenure)
TERM OF OFFICE v. TENURE OF INCUMBENT
Term of an office as distinguished from the
tenure of the incumbent: The term means the time
during which the officer may claim to hold office as of
right, and fixes the interval after which the several
incumbents shall succeed one another.
The tenure represents the term during which the
incumbent actually holds the office. The term of office
is not affected by the hold-over. The tenure may be
shorter than the term for reasons within or beyond the
power of the incumbent (Aparri vs. CA, 127 SCRA 240).
The distinction between term and tenure is important,
for, pursuant to the Constitution, ‘no officer or employee
is the civil service may be removed or suspended except
for cause as provided by law’ and this fundamental
principle would be defeated if Congress could legally
make the tenure of some officials dependent on the
pleasure of the President, by clothing the latter with
blanket authority to replace a public officer before the
expiration of his term. When EO 163 was issued, the
purpose was to comply with the constitutional provision
that “the term of office and other qualifications and
disabilities of the Members of the Commission (on
Human Rights) shall be provided by law” (Sec. 17(2),
Art. Xlll, Const.).
Bautista v. Salonga
(172 SCRA 164)
FACTS:
On 27 Aug 1987, Cory designated Bautista as
the Acting Chairwoman of CHR. In December of the
same year, Cory made the designation of Bautista
permanent.  The CoA, ignoring the decision in the Mison
case, averred that Bautista cannot take her seat w/o
their confirmation. Cory, through the Exec Sec, filed with
the CoA communications about Bautista’s appointment
on 14 Jan 1989. Bautista refused to be placed under the
CoA’s review hence she filed a petition before the SC. On
the other hand, Mallillin invoked EO 163-A stating that
since CoA refused Bautista’s appointment, Bautista
should be removed. EO 163-A provides that the tenure
of the Chairman and the Commissioners of the CHR
should be at the pleasure of the President.
ISSUE: Whether or not Bautista’s appointment is subject
to CoA’s confirmation.
HELD: Since the position of Chairman of the CHR is
not among the positions mentioned in the first
sentence of Sec. 16, Art. 7 of the 1987
Constitution, appointments to which are to be made
with the confirmation of the CoA it follows that the
appointment by the President of the Chairman of the
CHR is to be made without the review or
participation of the CoA. To be more precise, the
appointment of the Chairman and Members of the CHR is
not specifically provided for in the Constitution itself,
unlike the Chairmen and Members of the CSC, the CoE
and the COA, whose appointments are expressly vested
by the Constitution in the President with the consent of
the CoA. The President appoints the Chairman and
Members of the CHR pursuant to the second sentence in
Sec 16, Art. 7, that is, without the confirmation of the
CoA because they are among the officers of
government “whom he (the President) may be
authorized by law to appoint.” And Sec 2(c), EO 163
authorizes the President to appoint the Chairman and
Members of the CHR.
Because of the fact that the president submitted
to the CoA on 14 Jan 1989 the appointment of Bautista,
the CoA argued that the president though she has the
sole prerogative to make CHR appointments may from
time to time ask confirmation with the CoA. This is
untenable according to the SC. The Constitution has
blocked off certain appointments for the President
to make with the participation of the Commission
on Appointments, so also has the Constitution
mandated that the President can confer no power of
participation in the Commission on Appointments over
other appointments exclusively reserved for her by the
Constitution. The exercise of political options that finds
no support in the Constitution cannot be sustained.
Further, EVEN IF THE PRESIDENT MAY VOLUNTARILY
SUBMIT TO THE COMMISSION ON APPOINTMENTS AN
APPOINTMENT THAT UNDER THE CONSTITUTION
SOLELY BELONGS TO HER, STILL, THERE WAS NO
VACANCY TO WHICH AN APPOINTMENT COULD BE MADE
ON 14 JANUARY 1989. There can be no ad interim
appointments in the CHR for the appointment thereto is
not subject to CoA’s confirmation. Appointments to the
CHR is always permanent in nature.
Bondoc v. Pineda
(201 SCRA 792)
36 | P a g e
HELD: The members of the House of Representatives
Electoral Tribunal (HRET) are entitled to security of
tenure like members of the judiciary. Membership in it
may not be terminated except for a just cause.
Disloyalty to party is not a valid ground for the expulsion
of a member of the HRET. Its members must discharge
their functions with impartiality and independence from
the political party to which they belong
HOLD-OVER DOCTRINE
HOLD-OVER DOCTRINE - For the effective
operation of the rotational scheme of the
Constitutional Commissions, the first Commissioner
should start on a common date and any vacancy
before the expiration of the term should be filled only
for the unexpired balance of the term (Republic v
Imperial, 96 Phil 770). The terms of the first
Chairmen and Commissioners of the Cosntitutional
Commission under the 1987 Constitution must start
on a common date, that is, February 2, 1987, the
date of the adoption of the 1987 Constitution,
irrespective of the variations in the dates of
appointments and qualifications of the appointees.
Hence, the 7-year term of office of CSC
Commissioner Gaminde, who was appointed on June
11, 1993, expired on February 2, 1999, since the
term of her predecessor ended on February 2, 1992.
In the same manner, the term of her successor must
be deemed to start on February 2, 1999 and will
expire on February 2, 2006, notwithstanding that
Gaminde served as de facto officer until February 2,
2000 (Gaminde v COA, December 13, 2000)
Take note:
Barangay officials are not covered under the
constitution for term limit. So Congress maya mend
the law applying the hold-over doctrine including the
SK members.
Gaminde v. COA
(13 Dec 2000)
FACTS: On June 11, 1993, the President appointed
petitioner as Commissioner of the CSC for a term
expiring on February 2, 1999.  She took her oath of
office on June 22, 1993 and was confirmed by the
Commission on Appointments on September 7,
1993. The Chief Presidential Legal Counsel opined that
petitioner’s term of office would expire on Feb. 2, 2000
not Feb. 2, 1999.
Relying on the said opinion, remained remained in office
until Feb. 2, 2000. The Commission on Audit issued a
decision that her term expired on Feb. 2, 1999 and
disallowed in audit the slaries and emoluments
pertaining to petitioner and her co-terminus staff.
ISSUE: WON Gaminde should receive salary for the
rendred service after her term’s expiration
HELD:  The constitution adopted a rotational system for
the appointment of the Chairman and Commissioners of
the Constitutional Commissions.  The operation of the
rotational plan requires that the terms of the first
Commissioners should start on a common date and any
vacancy before the expiration of the term should be filled
only for the unexpired balance of the
term.  Consequently, the term of the first Chairman and
Commissioners of the Constitutional Commissions must
start on a common date, irrespective of variations in the
dates of appointments and qualifications of the
appointees in order that the expiration of the first terms
should lead to the regular recurrence of the two-year
interval between the expiration of the terms.  February
2, 1987 is the proper starting point of the terms of office
of the first appointees to the Constitutional Commission,
as the beginning of the term of office is understood to
coincide with the effectivity of the Constitution upon its
ratification
Datu Kida v. Senate of the Phils
(18 Oct 2011)
A legislation allowing the elective officials in the
ARMM to remain in office in a holdover capacity until
those elected in the synchronized elections assume office
is unconstitutional. It would violate Sec. 8, Art. X of the
Constitution which states that the term of office of
elective local officials, except barangay officials which
shall be determined by law, shall be three years and no
such official shall serve for more than 3 consecutive
terms. Since elective ARMM officials are local officials,
they are covered and bound by the three-year term limit
prescribed by the Constitution. Congress cannot extend
their term through a law allowing officials to serve in a
holdover capacity. Congress cannot also create a new
term and effectively appoint the occupant of the position
for the new term. This is effectively an act of
appointment by Congress and an unconstitutional
intrusion into the constitutional appointment power of
the President.
RA 10153, which authorizes the President to
appoint officers in charge until those elected in the
synchronized elections assume office, is a valid law. The
appointing power is embodied in Sec. 16, Art. Vll of the
Constitution which states that the President shall appoint
all other officers of the government whom the President
may be authorized by law to appoint. Moreover, what RA
10153 only does is to grant the President the power to
“appoint OICs for the office of the Regional Governor,
Reg. Vice Governor and members of the Regional
Legislative Assembly who shall perform the functions
pertaining to said offices until the officials duly elected in
the May 2012 elections shall have qualified and assumed
office.” This power is different from appointing elective
ARMM officials for the abbreviated term ending on the
assumption to office of the officials elected in the May
2013 elections.
But OICs will not be the incumbents themselves.
Funa v. COA
(24 Apr 2012)
37 | P a g e
 Reynaldo Villar was already COA Commissioner
for four years (whose term would end Feb.2, 2011) when
he was appointed acting chair upon the retirement of his
predecessor, Guillermo Carague, on Feb. 2, 2008. On
April 18 of same year, Pres. GMA appointed him as
permanent chair of COA. Villar claims his appointment as
COA chair gave him a fresh seven year term to expire in
2015. Held: Villar’s appointment for a full seven-year
term is unconstitutional as it violated Sec. 1(2), Art.
lX(D) of the Constitution which reads:”The Chairman and
Commissioners (on Audit) shall be appointed by the
President with the consent of the Commission on
Appointments for a term of seven years without
reappointment… Appointment to any vacancy shall be
only for the unexpired portion of the term of the
predecessor.” A COA Commissioner like respondent
Villar who serves for a period less than seven years
cannot be appointed as chairman when such position
became vacant as a result of the expiration of the 7-year
term of the predecessor (Carague). Such appointment to
a full term is not valid and constitutional, as the
appointee will be allowed to serve more than 7 years
under the constitutional ban.
PRIMARILY CONFIDENTIAL POSITIONS
RULE: Tenure of officials holding primarily
confidential positions ends upon a loss of
confidencexxx cessation not a removal but
expiration of term.
Cadiente v. Santos
(142 SCRA 280)
Cadiente was the appointee of the Mayor as the city
legal officer. When Santos newly assumed the
Mayor’s office, he removed Cadiente. Cadiente then
implored violation of security of tenure. SC held that
there was no violation of security of tenure. Positions
of City Legal Officer and Provincial Attorney are
primarily confidential positions. But with respect
to their legal staff or subordinates, their positions are
highly technical and not confidential, so that they are
permanent employees. (Note: The lawyers under
the provincial attorney or the City Legal Office have
career positions.)
The position of a city legal officer is primary
confidential.
Grino v. CSC
(26 Feb 1991)
 Sixto Demaisip was the provincial attorney of
Iloilo. He resigned and recommended Arandela as
his replacement. This was approved by the governor.
 Grino was elected as the new governor. When he
took over, he terminated Arandela, and re-appointed
Demaisip as provincial attorney. Apparently, there
was loss of trust and confidence. Also terminated
were other subordinates of the provincial attorney.
 Arandela appealed the action taken by Governor
Grino to the Merit Systems Protection Board of the
CSC.
 The MSPB declared the termination illegal, and
ordered they Arandela be immediately restored to
their positions, with backwages. This was affirmed by
the CSC.
 Gov. Grino now filed a petition for review assailing
the decision of the MSPB and CSC. He relied on the
case of Cadiente, which ruled that a city legal officer
was a primarily confidential position. He argued that
since a provincial atty and a city legal officer has
similar functions, then a provincial atty is also a
primarily confidential position, one requiring utmost
confidence on the part of the mayor to be extended
to said officer.
 Arandela on the other hand contends that the CSC
has already classified the position of Provincial
Attorney as a career position, and that the same is
permanent, and can be removed only for a cause.
ISSUE: Is the position of Provincial Attorney primarily
confidential? How about the other subordinates (such as
Legal Assistants)?
SC: PRIMARILY CONFIDENTIAL.
The positions of city legal officer and provincial
attorney were created under RA5185, which categorized
them together as positions of trust. Both the provincial
attorney and the city legal officer serve as a legal adviser
and legal officer for the civil cases of the province and
the city that they work for. Their services are precisely
categorized by law to be “trusted services.”
A comparison of these 2 positions under the LGC
would reveal the close similarity of the 2 positions. Said
functions clearly reflect the highly confidential nature of
the 2 offices and the need for a relationship based on
trust between the officer and the head of the LGU he
serves.
The fact that the position of Arandela as
provincial attorney has already been classified as under
career service, and certified as permanent by the CSC
cannot conceal or alter its highly confidential nature.
Since in the Cadiente case the city legal officer was
declared by this Court to be primarily confidential, the
Court must also hold that the position of provincial
attorney is also primarily confidential. To rule otherwise
would be tantamount to classifying 2 positions with the
same nature and functions in to incompatible categories.
Arandela’s termination valid. The tenure of an
official holding a primarily confidential position ends
upon loss of confidence. He was not dismissed or
removed from office, his term merely expired.
Note also that the atty-client relationship is
strictly personal because it involves mutual trust and
confidence. As such, the personal character of the
relationship prohibits delegation in favor of another
attorney without the client’s consent. However, the legal
work involved, as distinguished from the relationship,
can be delegated. The practice of delegating work of
counsel to his subordinates is apparent since the
Provincial Attorney is granted power to exercise
38 | P a g e
administrative supervision and control over acts and
decisions of his subordinates.
It is therefore possible to distinguish the
positions in the civil service were lawyers act as counsel
in confidential / and non-confidential positions simply by
looking at the proximity of the position in relation to that
of the appointing authority.
With respect to the legal assistants and
subordinates of the provincial attorney (who were also
terminated along with Arandela), they have been
employed due to their technical qualifications. Their
positions are highly technical in character and not
confidential. Thus they are PERMANENT EMPLOYEES and
they belong to the category of CLASSIFIED employees
under the CSL. Thus, the positions are permanent and
they enjoy security of tenure.
There is no need to extend the professional
relationship to the legal staff and subordinates which
assist the confidential employer. Since the positions
occupied by these subordinates are REMOTE from that of
the appointing authority, the element of trust between
them is no longer predominant. The importance of these
subordinates now lies in the contribution of their legal
skills to facilitate the work of the confidential employee.
De Perio Santos v. Macaraig
(10 Apr 1992)
FACTS:
Petitioner, a career service officer with the rank
of Chief of Mission II and Ambassador Extraordinary
and Plenipotentiary, was appointed by Cory Aguino, to
the position of Permanent Representative of the
Philippines to the Philippine Mission to the United Nations
and other International Organizations with station in
Geneva, Switzerland. petitioner sought a leave of
absence from DFA to spend the Easter Holidays in New
York, USA. She bought two (2) non-transferable, non-
refundable discounted tickets costing SFr. 1,597 for
herself and her adopted daughter Pia. Before they could
leave Geneva, petitioner received instructions from the
home office directing her to proceed to Havana as a
member of the Philippine delegation to the UNCTAD G-77
Preparatory Conference. Instead of buying an economy
roundtrip ticket, she used for the Geneva-New York-
Geneva portion of her trip the two (2) discounted tickets
for herself and her daughter. On September 16, 1987,
the DFA sent her a cable requesting clarification on "why
Mission paid for plane ticket of infant Pia when she was
not authorized to accompany her adopting mother at
government expense.
She was reprimanded and replaced by Escaler.
ISSUE: WON Petitioner was illegally terminated
HELD: No. The petitioner's designation as the
permanent representative of the Philippine Government
to the United Nations and other International
Organizations in Geneva (Annex B, p. 34, Rollo), was
one based on the special trust and confidence which the
appointing power, the President, had in the appointee.
Once that trust and confidence ceased to exist, the
incumbent's continuance in the position became
untenable.
An incumbent of a primarily confidential position
holds office at the pleasure of the appointing power.
When the pleasure turns into displeasure, the incumbent
is not removed or dismissed from office — his term
merely expires (Ingles vs. Mutuc, 26 SCRA 171).
"Primarily confidential" denotes "not only
confidence in the aptitude of the appointee for the duties
of the office but primarily close intimacy which insures
freedom of intercourse without embarrassment or
freedom from misgivings of betrayals of personal trust or
confidential matters of state" (Pinero vs. Hechanova, 18
SCRA 417; citing De los Santos vs. Mallare, 87 Phil.
289).
It is the fact of loss of confidence, not the reason for it,
that is important and controlling. As holder of a primarily
confidential position, petitioner's foreign assignment was
at the pleasure of the President. The recall order
terminating her tour of duty in Geneva and returning her
to the home office was merely a change of post or
transfer of location of work.
ELIGIBILITY TO HOLD PUBLIC OFFICE
It May Be:
1. The accomplishment of a person that he is fit
for public office.
2. May pertain to an act required by law of a
person to give him bases to hold public office
(endowment).
Note: Eligibility here has endowment that takes not
only at the time of commencement of public office but
during the entire duration of the occupancy of the
public office. In other words, one must be qualified not
only at the time he assumes public position but for the
entire duration of his occupancy. At no point in time
should there exist a disqualification.
But take note that mere possession of Civil
Service Eligibility Certificate does not amount to
automatic appointment. So even if you already
passed the civil service examination, it does not mean
that there exists an obligation in the part of the
government agency or the head of that office to
issue you an appointment. Why is this so? The
reason for that is the matter of appointment is an act
of discretion. It involves a choice of the appointing
authority. Who to appoint is determined in the vested
power of the appointing power. It is a matter of
administrative and political decision to be made by the
appointing power. Thus a person simply cannot compel
the appointing officer to issue to him an appointment on
the basis of his being an eligible.
Now, the law provides that whenever there is a civil
service eligible, no person who is non-eligible shall be
appointed to the civil service, more so in the career
39 | P a g e
classification. So the GENERAL RULE is only an eligible
can be appointed. In fact, the CS Law and the Revised
Administrative Code (EO 292) provide that opportunities
should be exerted to employ the brightest graduates.
EXCEPTION:
1. When there is an urgent need for the filling
of the position in order to prevent chaos, in order
not to jeopardize but to have continuity (smooth
flow) in government operations. There should be
no hiatus in the operation of public service;
2. When the position is not permanent in
nature. If the vacancy is a temporary office, a
temporary item in the service, then even a non-
eligible may be appointed, in the absence of an
eligible.
Qualifications of a local elective position (RA 7160,
Section 39):
1. Citizen of the Philippines;
2. Registered voter in the place where he intends to
be elected;
3. A resident therein for at least one (1) year
immediately preceding the day of the election;
(jalosjos 2nd case)
4. Able to read and write Filipino or any other local
language or dialect;
5. Age qualification
a. Governor, vice-governor, member of
the sangguniang panlalawigan, mayor, vice-
mayor, member of the sangguniang
panlungsod of highly urbanized cities – at
least 23 years old on the day of the election;
b. Mayor, vice-mayor of independent
component cities, component cities or
municipalities – 21 years old;
c. Members of the sangguniang
panlungsod or sangguniang bayan – 18
years old;
d. Punong barangay or members of the
sangguniang barangay – 18 years old.
e. Sangguniang Kabataan – 18 to 21
years old
Acts required before a local elective official can
assume office:
1. Taking of an oath – Merely incidental and
failure to do so can be ratified by a
subsequent taking of an oath
2. Posting of a bond – Merely directory and not
part of the office; only a security for an
accountable officer and failure to do so is merely
a ground for disqualification.
Q: What is the qualification standard?
A: It pertains to the minimum requirements for a
class or position in terms not only of eligibility
but likewise training, experience and even
physical attributes, even the age requirement. So
all of these must be considered not simply the
eligibility of the candidate. What is required is the
possession of the minimum requirement on the basis
of qualification standards.
Citizenship
a. Only citizens can be elected to public office
(Republic vs. dela Rosa)
b. A person who possesses both Philippine and
American citizenship is still a Filipino and does
not lose his citizenship until he renounces it
(Aznar vs. COMELEC). So it is possible
therefore for a Filipino to have another
citizenship and this does not mean an automatic
disqualification. Because what is prohibited under
the law is dual allegiance and not dual citizenship
(Lee vs Director of Public Education).
c. An employee of the government who marries an
alien and acquires the nationality of her foreigner
spouse may still continue to have the
qualification to possess public office, unless
by her acts she is deemed to have
renounced it. (Article 4, sec. 4 of Constitution)
Age – President and SC justice = 40; Senator = 35;
Congressmen and Department Secretaries = 25.
Educational Attainment - Let us say that part of the
qualification standard for the part of a driver is that he
must at least be second year college. Clearly this is the
minimum requirement for that position. It does not even
matter that all of the applicants, except for one, are
college graduate, and the one who got appointed was
the guy who failed to finish college. The appointment
issued to him cannot be voided. If the position
requires only a minimum requirement, then the
(appointment to the) person who possesses the
minimum requirement cannot be voided even if all
the other candidates possess higher degrees.
Q: A law is passed requiring that a person who wishes
to run for public position must have a property worth
of 50,000. Valid or not valid?
A: Not valid because it violates the social justice
provision of the Constitution that there can be no
religious or property test as requirement for a
person to be elected or for a person to have a
right to vote.
Q: What about requirement prohibiting the members of
the clergy, the imams, etc from running for public
office?
A: Not valid because no religious test shall be
required in the exercise of political right, which
includes the right to be voted for in public
office.
Pamil vs. Teleron
86 SCRA 413
There was this priest from Albuquerque, Bohol. Fr.
Gonzaga, who ran for elective position, municipal
mayor of Albuquerque and he won. But there was a
petition to prevent him from taking his oath of office
because of the prohibition of Section of 2175 of the
old administrative code prohibiting ecclesiastics from
seeking or holding municipal offices. The SC ruled
that there is this provision prohibits them from
seeking public office.
40 | P a g e

Q: Did the Pamil Ruling evolve in the present
Constitution?
A: No. The Constitution provides that no religious test
shall be required for the acceptance of the civil or
political right. So therefore there is no
prohibition. If ever there is, it does not come from
our basis but rather from the church itself. So there
should be no imposition pertaining to a
religion. In other words, even a priest may serve
public position but probably the church itself
prohibits them from doing so.
Maquera v. Borra
(07 Sep 1965)
 
In this petition, Maquera seek that the RA 4421
requiring all candidates for national, provincial/city and
municipal offices to post a surety bond equivalent to
salary or emoluments to which he is a candidate.The
Court granted the petition as it is inconsistent with
the nature and essence of the Republican system
ordained in our Constitution and the principle of
social justice underlying the same for said political
system is premised upon the tent that sovereignty
resides in the people and all government authority
emanates from them and this in turn implies necessarily
that the right to vote and to be voted for shall not be
dependent upon the wealth of the individual concerned,
whereas social justice presupposes equal opportunity for
all, rich and poor alike and that accordingly no person
shall by reason of poverty, be denied the chance to be
elected to public office.
Qualifications of Local Elective Officials (Sec 39, RA
7160)
Section 39. Qualifications. -
(a) An elective local official must be a citizen of
the Philippines; a registered voter in the
barangay, municipality, city, or province or, in
the case of a member of the sangguniang
panlalawigan, sangguniang panlungsod, or
sangguniang bayan, the district where he intends
to be elected; a resident therein for at least
one (1) year immediately preceding the day
of the election; and able to read and write
Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice-
governor, or member of the sangguniang
panlalawigan, or mayor, vice-mayor or member
of the sangguniang panlungsod of highly
urbanized cities must be at least twenty-one
(23) years of age on election day.
(c) Candidates for the position of mayor or vice-
mayor of independent component cities,
component cities, or municipalities must be at
least twenty-one (21) years of age on
election day.
(d) Candidates for the position of member of the
sangguniang panlungsod or sangguniang bayan
must be at least eighteen (18) years of age on
election day.
(e) Candidates for the position of punong
barangay or member of the sangguniang
barangay must be at least eighteen (18) years of
age on election day.
(f) Candidates for the sangguniang kabataan
must be at least fifteen (15) years of age but not
more than twenty-one (21) years of age on
election day.
Labo v. COMELEC
(176 SCRA 1)
Facts: 
Petitioner Ramon Labo, elected mayor of Baguio
City was questioned on his citizenship. He was married
in the Philippines to an Australian citizen. The
marriage was declared void in the Australian Federal
Court in Sydney on the ground that the marriage had
been bigamous. According to Australian records, Labo is
still an Australian citizen. 
Issue: Whether or not Petitioner Labo is a citizen of the
Philippines. 
Held: The petitioner’s contention that his marriage to an
Australian national in 1976 did not automatically divest
him of Philippine citizenship is irrelevant. There is no
claim or finding that he automatically ceased to be a
Filipino because of that marriage. He became a citizen of
Australia because he was naturalized as such through a
formal and positive process, simplified in his case
because he was married to an Australian citizen. As a
condition for such naturalization, he formally took the
Oath of Allegiance and/or made the Affirmation of
Allegiance, renouncing all other allegiance. It does not
appear in the record, nor does the petitioner claim, that
he has reacquired Philippine citizenship.
DISQUALIFICATIONS FOR LOCAL ELECTIVE
POSITION UNDER SEC 40, RA 7160
Section 40. Disqualifications. - The following persons
are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an
offense involving moral turpitude or for an
offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving
sentence;
(b) Those removed from office as a result of an
administrative case;
(c) Those convicted by final judgment for
violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-
political cases here or abroad;
(f) Permanent residents in a foreign country or
those who have acquired the right to reside
abroad and continue to avail of the same right
after the effectivity of this Code; and
(g) The insane or feeble-minded.
41 | P a g e

Moreno v. Comelec
(498 SCRA 49)
Facts:
Moreno was an incumbent Punong Barangay at
the time of his conviction by the RTC of the crime of
Arbitrary Detention and was sentence to suffer
imprisonment of 4 mos. and 1 day to 2 years and 4
mos. He was disqualified by the COMELEC from running
for Punong Barangay in the July 2002 Elections because
he did not serve the adjudged sentence having been
granted probation.
Issue: Whether or not Moreno should have been
disqualified by the COMELEC.
Held: No , he should not have been disqualified by the
COMELEC. Those who have not serve their sentence by
reason of the grant of probation which should not be
equated with sentence, should not be disqualified from
running for a local elective office because the 2 year
period of ineligibility under Sec. 40 (a) of the LGC does
not even begin to run.
Dela Torre v. Comelec
(258 SCRA 483)
Facts:
Dela Torre was disqualified from running for the
position of Mayor of Cavinti, Laguna in the last May 8,
1995 elections on the ground that he was found guilty by
the RTC in June 1990 for violation of PD 1612, otherwise
known as the Anti-fencing Law. His conviction became
final in January 1991. Dela Torre claimed that section 40
(a) of the Local Government Code does not apply to his
case inasmuch as the probation granted him by MTC on
December 21, 1994 which suspended the execution of
the judgment of conviction and all other legal
consequences flowing therefrom, rendered inapplicable
Section 40 (a) as well.
Issue: whether or not a grant of probation affects
Section 0 (a)’ s applicability.
Held: No. the grant of probation does not affect the
applicability of Section 40 (a) of RA7160. The legal
effect of probation is only to suspend the execution
of the sentence. A judgment of conviction in a criminal
case ipso facto attains finality when the accused applies
for probation, although it is not executor pending
resolution of the application for probation.
Reyes v. Comelec
(254 SCRA 514)
Facts:
Reyes got reelected in the 1995 election as
mayor of oriental Mindoro. But what happened was
that during his previous term of office. He was
charged in connection with several offenses, grave
offenses such as his appropriation of funds of the
National Rehabilitation Development Program
(NRDP), and the act of collecting Php 50,000 from
stall owners in the public market. Thus, an
administrative case was filed against him and he
was adjudicated by the SP a conviction. He
refused to receive a copy of the decision and he also
did not file an appeal. Thus, the period within which
the law allows to file an appeal has lapsed. In the
present term where he got reelected, there was
a petition to disqualify him on the basis of his
conviction during his previous term of office.
Held: An elective local executive officer who is
removed before the expiration of the term for which
he was elected, is disqualified from being a candidate
for a local elective position. One of the grounds under
Section 40 of LGC is conviction in an administrative
case. The fact that the decision in the admin case
before the SP of Oriental Mindoro already became
final and executory, is a sufficient basis.
Lingating v. Comelec
(319 SCRA 629)
The Mayor Sulo of Zamboanga Del Sur(herein
petitioner) got reelected in the May 1992 election.
Prior to his May 1992 election, during his previous
term, he was charged for grave misconduct, for
dishonesty, malversation and falsification, got
convicted by the Sangguniang Panlalawigan (SP), and
was dismissed. But he filed a timely Motion for
Reconsideration. Petitioner Lingating here was
required to file his comment by the SP, which he
failed to do so. So the SP did not rehear the case,
nor resolve or decide the motion. There was no
action whatsoever. In other words, when Mayor
Sulo ran and won again for the subsequent elections,
the decision of the SP never became final and
executory. Although there was a decision rendered
but this decision was the subject of an appeal,
timely filed as prescribed by law. It was never
resolved. In fact, the entitled party here litigating
did not file his comment and neither did the SP
resolve the issue. The issue was left hanging. In other
words, the ground provided under Section 40 does
not apply to him because the ground mentioned in
such provision speaks of a judgment that has
become final and in this case the decision
rendered to Mayor Sulo never became final by
reason of his filing of timely motion for
reconsideration which even at the time of the 1992
election, was not yet resolved. So there was no
conviction by final judgment. No disqualification
against Mayor Sulo.
ANALYSIS:
Those who have not served their sentence by
reason of the grant of probation which should not be
equated with service of sentence, should not be
disqualified from running for a local elective office
because the two year period of ineligibility under Sec.
40(a) of the LGC does not even begin to run.
Petitioner Moreno, the incumbent Punong
Barangay at the time of his conviction by the RTC of the
crime of Arbitrary Detention and who was sentenced to
suffer imprisonment of 4 months and 1 day to 2 years
42 | P a g e
and 4 months, should not have been disqualified by the
COMELEC from running for Punong Barangay in the July
2002 Barangay Elections because he did not serve the
adjudged sentence having been granted probation.
During the period of probation, the probationer is not
disqualified because the accessory penalty of
suspension from public office is put on hold for the
duration of the probation (Moreno vs. COMELEC,
498 SCRA 549). The ruling of the Court in Dela Torre
vs. CoMELEC (258 SCRA 483) that conviction for an
offense involving moral turpitude stands even if the
candidate was granted probation does not apply to
Moreno because Dela Torre was convicted for violation of
the Anti-Fencing Law, an offense involving moral
turpitude covered by the first part of Sec. 40(a),
and he applied for probation nearly 4 years after his
conviction and only after appealing his conviction,
thus Dela Torre could not have been eligible for
probation. The perfection of an appeal is a
relinquishment of the alternative remedy of
availing of the Probation Law, the purpose of which is
to prevent speculation or opportunism on the part of the
accused (ibid).
In Reyes vs. COMELEC (254 SCRA 514), the
Court held that an elective local executive officer, who is
removed before the expiration of the term for which he
was elected, is disqualified from being a candidate for a
local elective position under Sec. 40 of RA 7160.
However, in Lingating vs. COMELEC (391 SCRA 629), the
Court held that the rule that an elective local officer, who
is removed before the expiration of the term for which
he was elected, is disqualified from being a candidate for
a local elective position does not apply where the
decision of the Sangguniang Panlalawigan (SP) finding a
local mayor guilty of dishonesty, falsification and
malversation has not become final. The Reyes ruling
cannot be applied because when respondent Sulong was
re-elected Mayor of Lapuyan, Zamboanga del Sur in the
May 1992 elections, the February 4, 1992 Decision of the
SP has not until now become final. Here, Sulong filed a
motion for reconsideration on Feb. 17, 1992 and the SP
required complainant Lingating to comment; and the
complainant has not filed a comment nor has the SP
resolved the motion. The filing of Sulong’s motion
prevented the decision of the SP from becoming final.
Where there was failure of the SP to resolve the motion
before the elections, it is unfair to the electorate to be
told after they have voted for said official that after all
he is disqualified, especially so where at the time of the
election, the decision sought to be reconsidered had
been rendered nearly ten years ago.
Q: What is the effect of dual citizenship?
Mercado vs. Manzano , May 6, 1999
As to the issue of a person holding dual
citizenship, you have here our favorite actor
running for the position of Vice-Mayor of Makati in
the 1998 election. He was born to Filipino parents
in the US and thus this status was acquired as a
result of the unavoidable consequence of the
simultaneous application of the various laws of
the Philippines and US. The issue here is w/n
Manzano is disqualified on the basis of his having
a dual citizenship as provided under section 40 of
the LGC. The SC ruled this ground pertains to
dual allegiance and not to dual citizenship. Dual
citizenship is allowed. It is beyond the control of
the person because it arises not because of his
own volition but rather because of the
simultaneous application of the laws of 2 or more
states. So a person who holds dual citizenship
upon the filing of his certificate of candidacy
means that he elected the Philippine citizenship
and foreswears his allegiance to the other state,
in this case to US.
Modified by RA 9225: must execute
1. Affidavit(sworn renunciation) renouncing
foreign citizenship
2. Oath of allegiance
Q: What is the effect of a person holding a greencard?
Caasi vs CA
191 SCRA 229
You have here Miguel of Bolinao, Pangasinan running
for the position of mayor in Bolinao but he was a
green card holder. Is the mere filing of a certificate
of candidacy a sufficient ground to qualify him to run
for elective position? Is this not considered a waiver?
The SC ruled that the filing of CoC is not a waiver
of such status as a permanent US resident.
Apart from his filing a CoC, there must be some
kind of act performed by him to indicate that he
already renounced his permanent residency in
that foreign country. His having a green card
holder is a disqualification for being an immigrant.
This is a matter of volition unlike in the case of
Manzano. There must be some prior act performed
by him and must be done prior to the filing of the
COC to show that he is indeed renouncing his green
card status. So there must be some other acts
independent of his filing of CoC because without such
prior waiver, there can be no basis to qualify him to
run for an elective position.
DUAL CITIZENSHIP ACT (RA 9225)
R.A. No. 9225 (Citizenship Retention and Reacquisition
Act of 2003 or the Dual Citizenship Act) expressly
provides for the conditions before those who re-acquired
Filipino citizenship may run for a public office in the
Philippines. Section 5 of the said law states:
Section 5. Civil and Political
Rights and Liabilities. – Those who
retain or re-acquire Philippine citizenship
under this Act shall enjoy full civil and
political rights and be subject to all
attendant liabilities and responsibilities
under existing laws of the Philippines and
the following conditions:
xxx
43 | P a g e
 (2) Those seeking elective public
office in the Philippines shall meet the
qualification for holding such public office
as required by the Constitution and
existing laws and, at the time of the
filing of the certificate of candidacy,
make a personal and sworn
renunciation of any and all foreign
citizenship before any public officer
authorized to administer an oath.
In Eusebio Eugenio Lopez v. Comelec (23 July
2008), petitioner was born a Filipino but he deliberately
sought American citizenship and renounced his Filipino
citizenship. He later on became a dual citizen by re-
acquiring Filipino citizenship. While he was able to
regain his Filipino Citizenship by virtue of the Dual
Citizenship Law when he took his oath of allegiance
before the Vice Consul of the Philippine Consulate
General’s Office in Los Angeles, California, the same is
not enough to allow him to run for a public office. The
law mandates that a candidate with dual citizenship must
make a personal and sworn renunciation of any and all
foreign citizenship before any public officer authorized to
administer an oath. There is no evidence presented
that will show that Lopez complied with the
provision of R.A. No. 9225. For the renunciation to be
valid, it must be contained in an affidavit duly executed
before an officer of law who is authorized to administer
an oath. The affiant must state in clear and
unequivocal terms that he is renouncing all foreign
citizenship for it to be effective. In the instant
case, Lopez’s failed to renounce his American
citizenship as proven by the absence of an
affidavit. For failure of petitioner to prove that he
abandoned his allegiance to the United States, he is
disqualified from running for Barangay Chairman of
Barangay Bagacay.
Sobejana-condon vs Comelec: MUST BE UNDER
OATH BEFORE AND OFFICER AUTHORIZED TO
ADMINISTER OATH
In Caasi vs. CA (191 SCRA 229), the Court ruled
that Merito Miguel of Bolinao, Pangasinan was not
qualified to run for Mayor of Bolinao because he was a
green card holder. To be qualified for elective office, the
law requires that the candidate who is a green card
holder must have waived his status as a
permanent resident or immigrant of a foreign
country. Therefore, his act of filing a certificate of
candidacy for elective office in the Philippines did not of
itself constitute a waiver of his status as a permanent
resident or immigrant of the United States. The waiver of
his green card should be manifested by some act or
acts independent of and done prior to filing his
candidacy for elective office in the country. Without
such prior waiver, he was disqualified to run for any
elective office.
In Altarejos vs. COMELEC (441 SCRA 655), the
Court ruled that although petitioner had petitioned for
his repatriation as a Filipino citizen under RA 8171 on 17
December 1997, this did not restore his Filipino
citizenship, because Sec. 2 of said law specifically
provides that “repatriation shall be effected by taking
the necessary oath of allegiance to the Republic of the
Philippines and registration (of the Certificate of
Repatriation) in the proper civil registry and the Bureau
of Immigration.” In this case, Altarejos took his oath of
allegiance in December 1997, but his Certificate of
Repatriation was registered with the Civil Registry
only after 6 years or on February 18, 2004, and with
the Bureau of Immigration on March 1, 2004. Petitioner
completed all the requirements of repatriation only
after he filed his certificate of candidacy for a
mayoralty position. Altarejos is disqualified from being a
candidate for the position of mayor of San Jacinto,
Masbate in the May 10, 2004 elections. In Bengson vs.
House of Representatives Electoral Tribunal (357 SCRA
545), the Court ruled that repatriation results in the
recovery of the original nationality. Since the candidate
for elective office was a natural-born Filipino citizen
before he became a naturalized American citizen, he was
restored to his former status as a natural-born Filipino
when he was repatriated (2002 BQ).
Altarejos v. Comelec
(441 SCRA 655)
The petitioner is filing and taking the required
oath of allegiance in accordance with this law of RA
8171 because he wanted to run for local elective
position, which he did. He took his oath of allegiance
in December of 1997. The law requires that, apart
from the taking of an oath of allegiance to the
Republic of the Philippines, the Certificate of
repatriation must be registered in the civil
registry and filed with the bureau of
immigration. But what happened here was that
petitioner was able to comply with this requirement
of registration only 6 years after or in 2004.
Held: SC ruled that he is disqualified because the
law requires that in order for him to be restored to
his original status, there must not only be an oath
taking but likewise there must be registration of
the certificate of repatriation. And this should be
done simultaneously, not after but before the filing
of Certificate of Candidacy.
Bengson v. HRET
(357 SCRA 545)
Facts: Respondent Cruz was a natural-born
citizen of the Philippines. He was born in San
Clemente, Tarlac, on April 27, 1960, of Filipino
parents. The fundamental law then applicable was the
1935 Constitution. On November 5, 1985, however,
respondent Cruz enlisted in the US Marine Corps
and without the consent of the Republic of the
Philippines, took an oath of allegiance to the US.
As a Consequence, he lost his Filipino citizenship for
under CA 63, section 1(4), by "rendering service to or
accepting commission in the armed forces of a foreign
country." Subsequently, he was naturalized as a U.S.
citizen on June 5, 1990, in connection with his service
in the U.S. Marine Corps.
44 | P a g e
 On March 17, 1994, respondent Cruz
reacquired his Philippine citizenship through
repatriation under RA 2630. He ran for and was
elected as the Representative of the Second District
of Pangasinan in the May 11, 1998 elections. He won
by a convincing margin of 26,671 votes over
petitioner Antonio Bengson III, who was then running
for reelection. Subsequently, petitioner filed a case
for Quo Warranto Ad Cautelam with respondent HRET
claiming that respondent Cruz was not qualified to
become a member of the House of Representatives
since he is not a natural-born citizen as required
under Article VI, section 6 of the Constitution. HRET
denied the petition.
Issue: WON respondent Cruz is disqualified? NO.
Held: REPATRIATION may be had by those who lost
their citizenship due to: (1) desertion of the armed
forces; services in the armed forces of the allied
forces in World War II; (3) service in the US Armed
Forces at any other time, (4) marriage of a Filipino
woman to an alien; and (5) political economic
necessity. As distinguished from the lengthy process
of naturalization, repatriation simply consists of the
taking of an oath of allegiance to the Republic of
the Philippines and registering said oath in the
Local Civil Registry of the place where the person
concerned resides or last resided. It results in the
recovery of the original nationality. Thus, a
naturalized Filipino who lost his citizenship will be
restored to his prior status as a naturalized Filipino
citizen. On the other hand, if he was originally a
natural-born citizen before he lost his Philippine
citizenship, he will be restored to his former
status as a natural-born Filipino. Although
respondent Cruz lost his Filipino citizenship when he
rendered service in the US Armed Forces, he
however, reacquired Philippine citizenship under R.A.
No. 2630. He took an oath of allegiance to the
Republic and registered the same in the Civil
Registry of Magantarem, Pangasinan. He is deemed
to have recovered his original status as a natural-
born citizen, a status which he acquired at birth as
the son of a Filipino father.
Appointment distinguished from designation
APPOINTMENT is the sole act of the appointing power
in choosing whom to appoint. It needs acceptance by the
appointee for the latter to have possession and full
enjoyment of the duties, responsibilities and rights
pertaining to the office where he is appointed. Both
appointment and acceptance must be present to
for the appointee to be considered a de jure
officer. However, even without acceptance, the fact
that an appointment has been issued is already a
complete and valid act, being the sole prerogative of
the appointing power.
DESIGNATION is merely the imposition of additional
duties but the fact that a person is designated does not
mean that he is already qualified to hold the privileges
pertaining to the position he has been designated. In
other words, he cannot claim the salaries and other
emoluments due the position because the essence of
designation is that it is merely temporary. Clearly in an
appointment, it is permanent in nature. One who is
designated has no security of tenure in his favor.
He may be replaced any time. There is no removal but
simply an expiration of term on the ground of loss of
confidence.
Q: How does the appointee qualify to public office?
A: I have mentioned before that appointment or also
known as eligibility may refer to the endowment
(GRANT) or accomplishment, or it may refer to
an act to be done by him required by law such
as taking of an oath.
Q: May the President remove an Under Secretary any
time?
A: Take note that the position of Under Secretary still
belongs to the career service. But not all
appointees as Under Secretary are career
officers. So if a person is appointed to the position
of Under Secretary but is not an eligible, he may
be replaced because he holds office in a
temporary capacity.
NATIONAL AMNESTY COMMISSION vs.
COMMISSION ON AUDIT
[G. R. No. 156982.  September 8, 2004]
437 SCRA 657
Facts: Petitioner National Amnesty Commission
(NAC) is a government agency created on March 25,
1994 by then President Fidel V. Ramos through
Proclamation No. 347. The NAC is tasked to receive,
process and review amnesty applications. It is
composed of seven members: a Chairperson, three
regular members appointed by the President, and the
Secretaries of Justice, National Defense and Interior
and Local Government as ex officio members.
It appears that after personally attending the
initial NAC meetings, the three ex officio members
turned over said responsibility to their
representatives who were paid honoraria beginning
December 12, 1994. However, on October 15, 1997,
NAC resident auditor Eulalia disallowed on audit the
payment of honoraria to these representatives
amounting to P255,750 for the period December 12,
1994 to June 27, 1997, pursuant to COA
Memorandum No. 97-038. On September 1, 1998,
the NGAO upheld the auditor's order and notices of
disallowance were subsequently issued.
Meanwhile, the NAC passed Administrative
Order No. 2 (the new Implementing Rules and
Regulations of Proclamation No. 347), which was
approved by then President Joseph Estrada on
October 19, 1999. Section 1, Rule II thereof provides
that ex officio members may designate their
representatives to the Commission. Said
Representatives shall be entitled to per diems,
allowances, bonuses and other benefits as may be
authorized by law. Petitioner invoked Administrative
45 | P a g e
Order No. 2 in assailing before the COA the rulings of
the resident auditor and the NGAO disallowing
payment of honoraria to the ex officio members'
representatives, to no avail.
Issue: WON the NAC ex-officio representatives may
receive per diem, honoraria or allowance? NO.
Held: The Constitution mandates the COA to ensure
that the funds and properties of the government are
validly, efficiently and conscientiously used. Thus,
Article IX-D, Section 2 of the Constitution ordains the
COA to exercise exclusive and broad auditing powers
over all government entities or trustees, without any
exception. It is in accordance with this constitutional
mandate that the COA issued Memorandum No. 97-
038 on the disallowance of payment of additional
compensation or remuneration to cabinet secretaries,
their deputies and assistants or their representatives
and the refund thereof.
In Civil Liberties Union v. Executive Secretary, we
elucidated on the two constitutional prohibitions
against holding multiple positions in the government
and receiving double compensation: (1) the blanket
prohibition, Section 7(2) Article 9B on all
government employees against holding multiple
government offices, unless otherwise allowed
by law or the primary functions of their
positions(ex-officio??), and (2) the stricter
prohibition under Section 13, Article VII on the
President and his official family from holding any
other office, profession, business or financial interest,
whether government or private, unless allowed by the
Constitution. The NAC ex officio members'
representatives who were all appointive officials with
ranks below Assistant Secretary are covered by the
two constitutional prohibitions.
First, the NAC ex officio members'
representatives are not exempt from the general
prohibition because there is no law or administrative
order creating a new office or position and authorizing
additional compensation therefor. Sections 54 and 56
of the Administrative Code of 1987 reiterate the
constitutional prohibition against multiple positions in
the government and receiving additional or double
compensation. RA 6758, the Salary Standardization
Law, also bars the receipt of such additional
emolument.
The representatives in fact assumed their
responsibilities not by virtue of a new
appointment but by mere designation from the
ex officio members who were themselves also
designated as such. An APPOINTMENT is the
selection by the proper authority of an individual who
is to exercise the powers and functions of a given
office; a DESIGNATION merely connotes an
imposition of additional duties, usually by law,
upon a person already in the public service by virtue
of an earlier appointment. Designation does not
entail payment of additional benefits or grant
upon the person so designated the right to claim
the salary attached to the position. Without an
appointment, a designation does not entitle the
officer to receive the salary of the position. The
legal basis of an employee's right to claim the salary
attached thereto is a duly issued and approved
appointment to the position,16 and not a mere
designation.
Second, the prohibition against holding dual
or multiple offices or employment under Section 13,
Article VII of the Constitution must not be construed
as applying to posts occupied by the Executive
officials specified therein without additional
compensation in an ex-officio capacity as provided by
law and as required by the primary functions of
said officials' office. The reason is that these posts
do no comprise "any other office" within the
contemplation of the constitutional prohibition but are
properly an imposition of additional duties and
functions on said officials.
The term EX-OFFICIO means "from office;
by virtue of office." It refers to an "authority derived
from official character merely, not expressly
conferred upon the individual character, but rather
annexed to the official position." Ex-officio
likewise denotes an "act done in an official character,
or as a consequence of office, and without any other
appointment or authority than that conferred by the
office." An ex-officio member of a board is one who is
a member by virtue of his title to a certain office, and
without further warrant or appointment. To illustrate,
by express provision of law, the Secretary of
Transportation and Communications is the ex-officio
Chairman of the Board of the Philippine Ports
Authority, and the Light Rail Transit Authority.
The ex-officio position being actually and in
legal contemplation part of the 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 these services are
already paid for and covered by the compensation
attached to his principal office.
The ex officio members' representatives are also
covered by the strict constitutional prohibition
imposed on the President and his official family.
Again, in Civil Liberties Union, we held that
cabinet secretaries, including their deputies and
assistants, who hold positions in ex officio
capacities, are proscribed from receiving
additional compensation because their services are
already paid for and covered by the compensation
attached to their principal offices. Thus, in the
attendance of the NAC meetings, the ex officio
members were not entitled to, and were in fact
prohibited from, collecting extra compensation,
whether it was called per diem, honorarium,
allowance or some other euphemism. Such additional
compensation is prohibited by the Constitution.
Although the administrative order does not preclude
the representatives from attending the NAC meetings,
they may do so only as guests or witnesses to the
proceedings. They cannot substitute for the ex officio
members for purposes of determining quorum,
participating in deliberations and making decisions.
In de la Cruz vs. COA and Bitonio vs. COA, we held
that the agent, alternate or representative cannot
have a better right than his principal, the ex
officio member. The laws, rules, prohibitions or
restrictions that cover the ex officio member apply
46 | P a g e
with equal force to his representative. In short, since
the ex officio member is prohibited from receiving
additional compensation for a position held in an ex
officio capacity, so is his representative likewise
restricted.
Lastly, we disagree with NAC's position that
the representatives are de facto officers and as such
are entitled to allowances. A de facto officer "derives
his appointment from one having colorable authority
to appoint, if the office is an appointive office, and
whose appointment is valid on its face. (He is)
one who is in possession of an office and is
discharging its duties under color of authority, by
which is meant authority derived from an
appointment, however irregular or informal, so that
the incumbent be not a mere volunteer."
The representatives cannot be considered de facto
officers because they were not appointed but were
merely designated to act as such. Furthermore, they
are not entitled to something their own principals are
prohibited from receiving. Neither can they claim good
faith, given the express prohibition of the Constitution
and the finality of our decision in Civil Liberties Union
prior to their receipt of such allowances.
RAMON P. BINAMIRA vs. PETER D.
GARRUCHO, JR.
[G.R. No. 92008. July 30, 1990]
188 SCRA 154
 
Facts: Petitioner received a communication from
then Minister of Tourism Jose Antonio Gonzales
designating him as the General Manager of the
Philippine Tourism Authority (PTA). President
Aquino approved the composition of the Board of
Directors of the PTA, which included Binamira as
Vice-Chairman in his capacity as General
Manager.
However, petitioner was allegedly forced to
resign and respondent Peter D. Garrucho, Jr. as the
new Secretary of Tourism, took over his position. It
appears that respondent submitted records to the
Office of the President showing that petitioner was
not designated by the President as required by
PD 564, as amended but only by the past
Secretary of Tourism. By reason thereof, President
Aquino sent Garrucho a memorandum copy furnished
Binamira, invalidating the latter’s designation and
designating the former in his stead.
Petitioner filed a petition for quo warranto to
question Garrucho’s title and sought reinstatement to
the office of General Manager of the PTA from which
he claims to have been removed without just cause in
violation of his security of tenure. He filed a
supplemental petition alleging that the President of
the Philippines appointed Jose A. Capistrano as
General Manager of the PTA. Capistrano was
impleaded as additional respondent.
Issue: WON petitioner Binamira was removed
without just cause? NO.
Held: Petitioner was not appointed by the
President of the Philippines but only designated
by the Minister of Tourism. 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. 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.
DESIGNATION, on the other hand, 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 of Directors of the Philippine Tourism
Authority, or where, 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 the House of Representatives. It is said
that appointment is essentially executive while
designation 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 the 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.
Even if so understood, that is, as an
appointment, the designation of the petitioner cannot
sustain his claim that he has been illegally removed.
The reason is that Section 23-A of P.D. 564, which
created the PTA, as amended by P.D. 1400, clearly
provides that the appointment of the General
Manager of the PTA shall be made by the
President of the Philippines, not by any other
officer. Appointment involves the exercise of
discretion, which because of its nature cannot be
delegated. Legally speaking, it was not possible
for Minister Gonzales to assume the exercise of
that discretion as an alter ego of the President.
The appointment (or designation) of the petitioner
was not a merely mechanical or ministerial act that
could be validly performed by a subordinate even if
he happened as in this case to be a member of the
Cabinet.
An officer to whom a discretion is entrusted
cannot delegate it to another, the presumption being
that he was chosen because he was deemed fit and
competent to exercise that judgment and discretion,
and unless the power to substitute another in his
place has been given to him, he cannot delegate his
duties to another. In those cases in which the proper
execution of the office requires, on the part of the
officer, the exercise of judgment or discretion, the
presumption is that he was chosen because he
was deemed fit and competent to exercise that
judgment and discretion, and, unless power to
substitute another in his place has been given to him,
he cannot delegate his duties to another.
47 | P a g e
 Indeed, even on the assumption that the
power conferred on the President could be validly
exercised by the Secretary, we still cannot accept
that the act of the latter, as an extension or
"projection" of the personality of the President, made
irreversible the petitioner's title to the position in
question. The petitioner's conclusion that Minister
Gonzales' act was in effect the act of President Aquino
is based only on half the doctrine he vigorously
invokes.
Justice Laurel stated that doctrine clearly in the
landmark case of Villena v. Secretary of the Interior,
where he described the relationship of the President
of the Philippines and the members of the Cabinet as
follows: “... all executive and administrative
organizations are adjuncts of the Executive
Department, the heads of the various executive
departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief
Executive is required by the Constitution or the law to
act in person or the exigencies of the situation
demand that he act personally, the multifarious
executive and administrative functions of the Chief
Executive are performed by and through the
executive departments, and the acts of the
secretaries of such departments, performed and
promulgated in the regular course of business, are,
unless disapproved or reprobated by the Chief
Executive, presumptively the acts of the Chief
Executive. “
The doctrine presumes the acts of the
Department Head to be the acts of the President of
the Philippines when "performed and promulgated in
the regular course of business," which was true of the
designation made by Minister Gonzales in favor of the
petitioner. But it also adds that such acts shall be
considered valid only if not 'disapproved or
reprobated by the Chief Executive," as also
happened in the case at bar.
The argument that the designation made by
Minister Gonzales was approved by President Aquino
through her approval of the composition of the Board
of Directors of the PTA is not persuasive. It must be
remembered that Binamira was included therein as
Vice-Chairman only because of his designation as PTA
General Manager by Minister Gonzales. Such
designation being merely provisional, it could be
recalled at will, as in fact it was recalled by the
President herself, through the memorandum she
addressed to Secretary Garrucho.
With these rulings, the petitioner's claim of
security of tenure must perforce fall to the ground.
His designation being an unlawful encroachment on a
presidential prerogative, he did not acquire valid title
thereunder to the position in question. Even if it be
assumed that it could be and was authorized, the
designation signified merely a temporary or acting
appointment that could be legally withdrawn at
pleasure, as in fact it was (albeit for a different
reason). In either case, the petitioner's claim of
security of tenure must be rejected. We must rule
therefore that the petitioner never acquired valid title
to the disputed position and so has no right to be
reinstated as General Manager of the Philippine
Tourism Authority.
APPOINTMENT
I. Kinds of appointment in the Career
Service
1. Permanent - This appointment is issued to an
individual who possesses or meets the
requirements for the position to which he is
appointed including the requisite eligibility.
GENERAL RULE: No person who is non-eligible can be
appointed to a position to the career service.
EXCEPTION: Even if a person who is not eligible may
still be appointed if there is no eligible who is
available. But, it should be only in a temporary
capacity (precisely because he lacks the eligibility
required for the position). Thus he may be replaced
anytime at the pleasure of the appointing authority
and there is no violation of security of Tenure.
2. Temporary – An appointee who does not possess
the minimum requirements for the position;
may be replaced anytime, without violating his
security of tenure
Achacoso vs. Macaraig
195 SCRA 235
Achacoso was appointed as administrator of POEA
(Philippine Overseas Employment Authority).
Nonetheless, he was replaced and there was an issue
as to the validity of his being replaced as violation of
his security of tenure having a position in the career
service. His contention is not correct. A person who
is appointed to a permanent position does not
automatically get a permanent appointment
UNLESS he is qualified for the position. Here,
although Achacoso had a position which belongs to
the Civil Service, he did not participate in any of
the career executive service program nor did he
take and qualify in the career executive service
exam. So he could not validly claim that he is being
appointed for permanent position as administrator
although the position entailed a permanent
appointment.
Felix vs. Buenaseda
240 SCRA 139
Let us say you have a position in a government
hospital as a resident physician. Now what is the
nature of a resident physician’s position? SC ruled
that a resident physician’s position cannot be a
permanent appointment because by its nature, it
means that this guy is a new doctor undergoing
training. Clearly, he occupied the position only in
a temporary capacity.
48 | P a g e
 Province of Camarines Sur vs. CA SUMMARY
246 SCRA 283 APPOINTMENT DESIGNATION
- Selection by the - Merely connotes
Facts: You have here the Assistant Provincial Warden proper authority an imposition of
Cito Datu. There were some prisoners who escaped of an individual ADDITIONAL
so he was charged. Subsequently, he was issued a who is to duties, usually by
temporary appointment. Apparently, he took the CS exercise the law, upon a person
exam and passed. Now he claims that the fact that he powers and ALREADY in the
passed the CS exam means that he has already a functions of a public service by
conversion of his temporary appointment to a given office virtue of an earlier
permanent one. appointment
- DOES NOT entail
Held: A permanent appointment is not simply a
payment of
continuation of the temporary appointment because
additional benefits
there is a need for the issuance by the appointing
or grant upon the
power of such an appointment. This is consistent
person so
with the sound discretion of the appointing authority
designated the
to issue the same. So even if a person passes the
right to claim the
examination and is already in the service, this
salary attached to
will not confer automatic right to security of
the position.
tenure. There is still the exercise of judgment by the
- Connotes - Connotes
appointing power as to who to appoint and who is the
permanency temporariness
best person for the position. These are the issues that
must be determined by the head of office.

t vs. de Guzman

Petitioner Gloria was a passer of CS exam. Although POWER TO APPOINT

she was already in the service and despite the fact
that she passed the exam, the administrators of the
Philippine Air Force College of Aeronautics did not
renew her appointment. The same principle is
applicable here as that in the Province of Camarines
Sur case that the matter of appointment is an act
of discretion. Take note that the matter of
eligibility is only one of the factors to be
considered by the agency head . There are
other factors like experience, trainings and even the
age or even physical attributes or even how you
relate to co-employees, may be considered by the
head of agency.
Palmera vs. CSC
235 SCRA 87
The assistant regional director of DPWH faced several
charges for misconduct, etc. He was preventively
suspended and compelled to accept contractual
appointment notwithstanding the fact that he
has been in the service for more than 30 years
already and that his appointment as assistant
regional director was of a permanent nature. Now,
was there here a valid transformation of appointment
from permanent to temporary by his act of accepting
contractual appointment? Take note he was literally
forced to accept the contractual appointment in view
of the numerous charges filed against him. Is this
voluntary? NO. It was involuntary. It could not be
said that he abandoned his permanent appointment
and that he just let go of his security of tenure. So
clearly in this case there was a violation of his
guaranteed security of tenure.
I. The Power to Appoint involves the
exercise of discretion.
Nature: The power to appoint is discretionary on
the party of the head of office, not the CSC.
Q: What is the Role of the Civil Service
Commission?
A: The role of the CSC is to attest or to accept or not to
accept, an appointment. If the appointee here
possesses the minimum requirements, the CSC has
no other choice but to approve the same. This is
true even if there are others who are better qualified to
the position. It is not within the power of the commission
not to attest, he must attest. The only ground for the
CSC not to attest the appointment is the non-
compliance of the CSC laws, rules and regulations
or that the appointee does not possess the
minimum requirements for that position to which he is
to be appointed. This is only the time when the CSC can
disapprove the appointment. In case of disapproval, the
CSC has no power to appoint individuals who are
qualified. This is still a function of the Head of Office.
The reckoning point in determining the qualifications
of an appointee is the date of issuance of the
appointment and not the date of approval by the CSC
or the date of resolution of the protest against it. (CSC
vs. Dela Cruz , 437SCRA404)
Orbos vs.CSC
189 SCRA 459
Facts: Then DOTC Secretary Orbos issued
appointments to Agon and Magnayon as Head

49 | P a g e
Telecommunications Engineers. These were
questioned by Madarang on the ground that he is
the next-in-rank. A protest was filed first before the
DOTC Reorganization Appeals Board, which did not
agree with Madarang. The matter was elevated to the
CSC, which disapproved the appointments of
Magnayon and Agon and ordered the appointment of
Madarang. The Office of the Solicitor General filed a
manifestation and sided with DOTC. CSC contended
that the OSG could not side with the DOTC because
the CSC is also a government office entitled to the
OSG’s representation.
Held: SC ruled that the commission has no power
to order the DOTC secretary to issue an
appointment to Madarang. Relevant also is the
issue on the exercise of the Solicitor General of his
power. The OSG is the legal counsel of the executive
branch of the government. Under PD 478, the OSG
should represent the government in any litigation
involving it. Under the law, in instances where the
legal counsel of government should represent the
different offices, if the position taken by one office is
contrary to the position of another office, it is the
obligation of the OSG to tell the court the best
position/side that would serve the best interest of the
government. In this case, the DOTC’s position. But in
any case, if there is a situation where the government
agencies come in conflict, and one should find merit
in its own cause, it should be represented by its own
legal counsel. That is why there are lawyers in
various offices in the government.
Tomali vs. CSC
238 SCRA 527
Facts: You have here Tomali being appointed by the
executive director of OMA (Office of the Muslim
Affairs). But unfortunately, thru the katangahan of
the administrative officer of that office, her
appointment was not transmitted and was not
forwarded to the CSC. Thereafter, a new executive
director was appointed and this director issued
another appointment to the same position. Tomali
questions the latter appointment.
Issue: WON the appointment that has not been
acted upon or approved by the CSC stands? NO.
Held: Where the law requires approval by the CSC,
this applies and holds true for career positions in the
service. The non-submission of the appointment
to the CSC is a grave flaw. The non-action of the
commission will not confer title to the
appointee. In other words, the appointee cannot
yet claim vested right to the public office in the
absence of the approval of the commission, no
security of tenure. So it follows, that since the
appointment never became a completed act, the
executive director of the OMA as the appointing
power has the discretion to issue an appointment to
any other qualified individual.
Q: What is the reckoning point in determining the
qualification of the appointee?
A: The date of issuance of the appointment and not
the date of its approval by the CSC. In other
words, let us say a head of office issued an
appointment which was submitted to CSC for
approval. So the reckoning point as to the
qualification of the appointee is not at the time of the
approval of such appointment by the commission
but rather at the time the appointment is given
by the appointing power to the appointee. On
the same vein, the revoking point of appointing
is on the day of the issuance of the
appointment and not on the day of the approval of
the same by the Commission.
Umosa vs. CSC
234 SCRA 619
Facts: Umosa, the person next-in-rank, was
appointed by the regional director of DPWH to the
vacant position of Supervising Civil Engineer. This
was questioned by Carunan who placed to be the best
qualified. He filed the protest before the secretary of
DPWH, who revoked the appointment issued by
the regional director to Umosa and ordered and
issued the appointment in favor of Carunan.
Issue: WON there was basis for the secretary to set
aside the appointment of Omosa? YES.
Held: The appointing power in the agency is certainly
the head office. The head of office in DPWH is not the
regional director but the secretary of the public
works. This appointing authority can be delegated to
a subordinate officer. But in the absence thereof,
the issuance of such appointment made by the
regional director is not really appointment but
designation. And you know the distinctions between
appointment and designation. The nature of
designation is temporary. Thus, there can be no
vested right acquired by the person so
designated. In this case, it is within the authority of
the secretary of public works to set aside the
appointment issued to Omosa even if Omosa claims
to be the next-in-rank. The principle of next-in-
rank only gives preference to Omosa. He should
be given utmost consideration in being appointed to
his position. But it does not bind the appointing
officer. So in the exercise of his sound discretion,
the secretary of public works had the right to validly
revoke the appointment of Omosa and to issue the
appointment of Carunan who showed to be in fact
better qualified.
Quirog has the right to ask for reconsideration of, or to
appeal the adverse ruling CSCROVII invalidating her
appointment as Provincial Agriculture Department Head
on the basis of prohibition against issuance of midnight
appointments per CSC Resolution dated June 4, 2001. In
contrast, by reason of the expiration of his term as
governor, Relampagos who had issued the permanent
appointment to Quirog on May 23, 2001 had lost the
50 | P a g e
legal personality to contest the disapproval of the
appointment. (Quirog vs. Gov. Aumentado , for obtaining a rating of only 60%. In her direct
570SCRA582)
The appointing authority, in the absence of any
prohibition, can validly issue appointments until his term
expires, as long as the appointee meets qualification
standards for the position. (De Rama vs. CA , 353 SCRA
94)
What is the NEXT-IN-RANK-RULE and its significance?
Patagoc vs. CSC
May 14, 1990
Facts: Patagoc was appointed city engineer in the
City of Zamboanga by then Mayor Agong. But another
employee, Despalo, in the same department who
claims to be the next-in-rank protested Patagoc’s
appointment. The protest was filed before the CSC
and the commission revoked the appointment of
Patagoc and ordered the appointment of the next-in-
rank individual.
Issue: WON the action taken here by the
commission proper? NO.
Held: The NEXT-IN-RANK RULE is applied in the
private sector. It does not confer automatic
investiture of position. It simply means that he
should be given a preference in the matter of
appointment. But nonetheless, the appointing power
is still clothed with utmost discretion. The
appointment is a matter of administrative and
political judgment which cannot be questioned so
long as the choice made by the head possesses
the minimum qualification for the position. So
here clearly the action of the commission was
improper. CSC has no authority to issue the
appointment or order appointment to some other
individual. It usurped the authority of the appointing
authority, the Mayor.
CSC cannot revoke the appointment of the appointing
authority except upon finding that the appointee did not
meet the minimum standards.
Maniebo v. CA
(627 SCRA 571)
FACTS:
The Mayor of the Municipality of  Puerto Galera, Oriental
Mindoro issued a promotional permanent appointment to
the petitioner as Cashier III in the Office of the Municipal
Treasurer because she appeared to possess the
qualifications for the position, including the Career
Service (Professional) Eligibility appearing in line 18 of
her Personal Data Sheet showing her to have passed
with a rating of 74.01% the Career Service
(Professional) examination.
When the report of her rating was verified against the
Masterlist of Eligibles, however, it was discovered that
the petitioner had actually failed in the examination
testimony, the petitioner denied knowledge of the
falsified nature of her Career Service (Professional)
eligibility rating. She asserted that the rating had come
from the CSC through the mails. She insisted that she
did not on any occasion approach any personnel of the
CSC, or anybody else connected with the CSC in order to
procure the passing grade of 74.01%.
ISSUE: WON a new appointment is needed
HELD: YES. Section 2. The Civil Service
Commission shall promulgate the rules and
regulations to implement this act consistent with
the merit and fitness principle within ninety (90)
days after its effectivity.        
         
These legal provisions show that not every
temporary or provisional employee is automatically
deemed to be a permanent employee after
rendering at least seven years of service in the
Government.  The CSC still needs to evaluate
whether the employee is qualified to avail himself or
herself of the privilege granted by the statute.
Moreover, that an appointee obtains a civil service
eligibility later on does not ipso facto convert his
temporary appointment into a permanent one. A
new appointment is still required, because a
permanent appointment is not a continuation of the
temporary appointment; the two are distinct acts of
the appointing authority. [33] As held in Maturan v.
Maglana,[34]  a permanent appointment implies the
holding of  a civil service eligibility on the part of the
appointee, unless the position involved requires no such
eligibility. Where the appointee does not possess a
civil service eligibility, the appointment is
considered temporary. The subsequent acquisition of
the required eligibility will not make the temporary
appointment regular or permanent; a new appointment is
needed.
NOTE: Even under the terms of RA 6850 (An Act
to Grant Civil Service Eligibility under Certain Conditions
to Government Employees Appointed Under Provisional
or Temporary Status Who Have Rendered a Total of
Seven Years of Efficient Service; Approved Feb. 8,1990),
not every temporary or provisional employee is
automatically deemed a permanent employee after
rendering at least 7 years. The CSC still needs to
evaluate whether the employee is qualified to avail of the
privilege granted by the statute. Moreover, that an
appointee obtains a civil service eligibility later on does
not ipso facto convert his temporary appointment into
permanent. A new appointment is still required. Even an
appointment initially approved by the CSC may be
subsequently recalled when found to be invalid.
          
NEPOTISM RULE
The appointment to a position of a person
coming within the prohibited degree. (If you are
working in the local government, the prohibition is
51 | P a g e
up to the fourth civil degree, but if you are in
other offices, not in LGU, the prohibition is up to
the 3rd degree). Not only one who is appointed by the
appointing officer but also one who is recommended.
So if your recommending authority is within the said
degrees, then that would still fall within the ambit of the
nepotism rule. Nepotism is both an administrative
offense, as well as a criminal offense.
Case: One mayor appointed his wife because of her
claimed expertise and experience. His contention was
that nepotism extends and applies only to original
appointments and not to promotional appointments. Is
this right? No. Nepotism applies to BOTH original and
promotional appointments.
- For Local Government Units and Non-LGU’s:
prohibition up to 4th degree affinity or
consanguinity
1. Sec 59, EO 292: prohibition within 3 rd degree of
consanguinity or affinity
2. Sec. 67, EO 292: penalty of fine of not more than 6
years imprisonment or both
3. Sec. 79, RA 7160: prohibition within 4 th degree of
consanguinity or affinity
Debulgado v. CSC
(237 SCRA 184)
Facts: This involves the matter of an appointment
given by the mayor to his wife as chief of the general
services whose function is the giving of and the
procuring of supplies and equipment for the agency.
This position is very powerful because this is where
biddings for office supplies are conducted. The matter
was brought before the court on the ground that the
appointment issued by the mayor in favor of his wife
is a prohibition of the nepotism rule. The CSC
disallowed the appointment without hearing the case.
Held: The court found the wife to be qualified for the
position, however, there is a violation of the nepotism
rule. Nepotism is the appointment issued by the
appointing or recommending authority in favor of a
relative within the 3rd degree by affinity or
consanguinity (under the CSL). The definition
however in the LGC extends not only to the 3 rd
but to 4th degree of consanguinity or affinity.
The mayor argued that the nepotism rule applies only
to original appointments but not to promotional
appointments because the wife had already been in
the service and she was qualified for promotion in the
said position. In this case, the nepotism rule likewise
applies to promotional appointments. There is no
need for a hearing because this action of the
commission does not arise from an administrative
case but rather, what the commission did was simply
to disapprove the appointment because it was a
violation of CSL rules and regulations, particularly
the nepotism rule. So there was no violation of due
process.
EXCEPTIONS TO THE RULE:
1. Appointment of Teachers
2. Appointment of Confidential Staff
NOTE: Purpose of the Rule v. Nepotism: take out the
discretion from the appointing or recommending
authority
Laurel V v. CSC
(203 SCRA 195)
FACTS:
Petitioner, the duly elected Governeor of the
Province of Batangas, appointed his brother, Benjamin
Laurel, as Senior Executive Assistant in the
Office of the Governor, a non-career service position
which belongs to the personal and confidential
staff of an elective official. Upon the vacancy of the
position of Provincial Administrator of Batangas,
petitioner designated his brother as Acting Provincial
Administrator. Then, he issued Benjamin Laurel a
promotional appointment as Civil Security Officer which
is a position of which the CSC classifies as “primarily
confidential” pursuant to PD 868.
HELD: Yes. The court ruled that petitioner could not
legally and validly appoint his brother Benjamin Laurel to
said position because of the prohibition on nepotism
under Section 49 of P.D. No. 807. They are related
within the third degree of consanguinity and the
case does not fall within any of the exemptions
provided therein. The exemption in the said section
covering confidential positions cannot be considered
since the said position is not primarily confidential
for it belongs to the career service.
Petitioner’s contention that the designation of his brother
is not covered by the prohibition cannot be accepted for
by legal contemplation, the prohibitive mantle on
nepotism would include designation, because what
cannot be done directly cannot be done indirectly.
His specious and tenuous distinction between
appointment and designation is nothing more than either
a ploy ingeniously conceived to circumvent the rigid rule
on nepotism or a last-ditch maneuver to cushion the
impact of its violation. Section 49 of P.D. No. 807 does
not suggest that designation should be differentiated
from appointment. Reading the section with Section 25
of said decree, career service positions may be filled up
only by appointment, either permanent or temporary;
hence a designation of a person to fill it up because it is
vacant, is necessarily included in the term appointment,
for it precisely accomplishes 
the same purpose.
Camarines Prov. V. CA
(246 SCRA 283)
52 | P a g e

Passage of CS exam does not transform temporary
appointment to permanent
The fact that an employee, with a temporary
appointment, subsequently passed the civil service
exam does not transform his appointment from
temporary to permanent retroactive to the date of
the release of the examination results. What would
have been required to transform his status from
temporary to permanent would have been a new
appointment, since a permanent appointment is
not a continuation of a temporary appointment but
a new one.
Gloria v. Rosario Cerillo
(249 SCRA 133)
Respondent’s success in the CS exam upon end of her
temporary appointment as Bd. Sec. did not legally oblige
PSCA to reappoint her. There are other considerations
like confidence and trust.
HELD: The success of petitioner in the civil service
examinations, upon the termination of her temporary
appointment, did not establish a legal obligation on
the part of the administrators of the Philippine
State College of Aeronautics to reappoint her.
Acquisition of such eligibility is not the sole factor for
reappointment. Other relevant considerations include
performance, degree of education, work experience,
training, seniority and the confidence of the appointing
power. In other words, the choice of an appointee from
among those who possessed the required qualifications
is a political and administrative decision calling for
considerations of wisdom, convenience, utility and the
interests of the service which can be best made by the
head of the office concerned.
Abella v. CSC
(442 SCRA 507)
Appointing authority and appointee are real parties to
challenge CSC disapproval.
HELD: Both the appointing authority and the appointee
are equally real parties in interest who have the requisite
legal standing to bring an action challenging the CSC
disapproval of an appointment. The CSC’s disapproval of
an appointment is a challenge to the exercise of the
appointing authority’s discretion. The appointing
authority must have the right to contest the
disapproval. The appointee is also injured by the
CSC disapproval because he is prevented from
assuming the office in a permanent capacity and he
would necessarily benefit if a favorable judgment is
obtained as an approved appointment would confer on
him all the rights and privileges of a permanent
appointee
Quirog v. Aumentado
(570 SCRA 582)
No violation of CSC resolution prohibiting midnight
appointments where the filling up resulted from
deliberate action and careful consideration of
qualifications
HELD: Petitioner Quirog had the right to ask for
reconsideration of, or to appeal the adverse ruling of
CSCRO Vll invalidating her appointment as Provincial
Agriculture Department Head on the basis of the
prohibition against the issuance of midnight
appointments per CSC Resolution dated June 4, 2001. In
contrast, by reason of the expiration of his term as
governor, Relampagos who had issued the permanent
appointment to Quirog on May 23, 2001 had lost the
legal personality to contest the disapproval of the
appointment. Quirog’s appointment was not violative of
the CSC Resolution prohibiting midnight appointments.
Prohibition on midnight appointment does not
apply to local chief executives.
The constitutional prohibition on so-called
midnight appointments, specifically those made within 2
months immediately prior to the next presidential
elections, applies only to the President or Acting
President. It does not mean however that the
prohibition may not be applied to those made by
chief executives of LGUs since it is designed to
discourage losing candidates from issuing appointments
for partisan purposes thereby depriving the incoming
administration of making the appointments in line with
its new policies. Also, there was no violation of the CSC
Resolution because it took effect only after the
questioned appointment was extended and after she
took office on June 1. Further, the fact that she was only
permanently appointed to the position of Department
Head-OPA after a year of being the Acting Provincial
Agriculturist more than shows that the filling up of the
position resulted from deliberate action and a careful
consideration of the need for the appointment and her
qualifications. An appointee already discharging the
duties concomitant with the position for a year
prior to her permanent appointment cannot be
considered a midnight appointee.
De Rama v. CA
(353 SCRA 94)
Prohibition on “midnight appointments” under Art. VII,
Sec. 15 of Constitution and not to local chief executives.
Shortly before the end of his term on June 30,
1995, Mayor Abeja of Pagbilao, Quezon, who lost the
preceding election for the same position, appointed 14
employees. The newly elected mayor wrote a letter to
the Civil Service Commission seeking to recall the
appointments of the 14 as these were “midnight
appointments.” He claims that they were violative of
Art. VII, Sec. 15 of the 1987 Constitution prohibiting the
President or the Acting President from making
appointments 2 months immediately before the next
presidential election and up to the end of his term.
ISSUE: Is the prohibition applicable to local chief
executives?
53 | P a g e

Held: No. The prohibition applies only to
presidential appointments. In truth and in fact, there
is no law that prohibits local elective officials from
making appointments during the last days of his or
her tenure. The appointing authority, in the absence of
any prohibition, can validly issue appointments until his reconstituting the social development office.
term expires, as long as the appointee meets the
qualification standards for the position.
ART. VII, Sec. 15 (1987 Constitution)
xxx
“Two months immediately before the next presidential elections and up to the end of his term, such
the 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.”
Nazareno v. Dumaguete City
As a general rule, appointments made by defeated
local candidates after the elections are prohibited to
avoid animosities between outgoing and incoming
officials, to allow the incoming administration a free hand
in implementing its policies, and to ensure that
appointments and promotions are not used as
tools for political patronage or as a reward for
services rendered to the outgoing local officials.
Exception:
Appointments after election(by the losing
candidate):when allowed
However, appointments made after elections by
losing candidates may be allowed under the following
requisites:
a. the appointment has gone through the regular
screening by the Personnel Selection Board
(PSB) before the prohibited period on the issuance of
appointment as shown by the PSB report or
minutes of its meeting;
b. the appointee is qualified;
c. there is a need to fill up the vacancy
immediately in order not to prejudice public service
and/or endanger public safety; and
d. the appointment is not one of those mass
appointments issued after the election.
Q: What is a TRANSFER?
A: It is the movement from one department to
another, from one office to another, which is of
equivalent rank, level or salary, without break
in the service. Clearly, this would require the prior
consent of the employee. In fact, there should be
an issuance of a new assignment or a prior
appointment, because you are being transferred
from one department to another in violation of the
security of tenure.
Tuason vs. Cassion
435 SCRA 295
Authority of mayor to devolution
Mayor Plaza of Butuan issued an order
By
reason of such action, several DSWD employees who
were devolved to the LGU, were reassigned. They
staged a
protest. SC
upheld the
authority of
the mayor
in effecting
reassignments. They can effect a devolution under
the LGC pursuant to the autonomy given to LGUs.
The matter of transfer of office which is mere physical
transfer of office from one place to another is
not the transfer contemplated under the law so as to
constitute a violation of the security of tenure.
Moreover, in issuing designations, and again take
note the concept of designation which is temporary in
nature, there was no violation of security of tenure.
Chato vs. Martinez
344 SCRA 18
Facts: You have here Martinez, an employee of the
BIR occupying the position of Chief Revenue District
Officer of District 34 of the Assessment Division in the
BIR field office. By virtue of an order from then BIR
Commissioner Chato, Martinez was reassigned to
the Collections Program of the national office.
The latter complained that the reassignment violated
her security of tenure because her new assignment
was totally alien to her, her field of expertise being in
assessment rather than in collection.
Held: SC ruled that there was no violation of her
security of tenure because the BIR commissioner
in fact has the power to appoint or reassign
employees and officers of the BIR when
exigencies of the agency require. Public interest
requires that she be reassigned. The only caveat
here, or in any reassignment, is that there should be
no diminution in terms of status, rank or salary.
In this case, there was no such reduction. Therefore,
there was no violation of security of tenure. Another
reason here is that, to allow the claim of Martinez
would be to subordinate the interest of the national
government to the whims and preferences of the
government employees. This should not be the
case.
Q: Suppose a clerk in the city government is being
transferred from the records division to some field
office. Valid or invalid? Let us say this guy complains
54 | P a g e
 of violation of tenure. So how will we determine if
there indeed is a violation?
A: You have to look into the nature of his appointment
extended to him. If the appointment given to him
indicated a specific station, then clearly that
employee may not be transferred or assigned
without his consent. Without consent, there is
violation of security of tenure. On the other hand, if
the appointment was without a specific
station, then you can be reassigned without your
consent provided that the transfer or reassignment
does not involve a substantial change in his
status, salary, rank or position. Because if there
is change, i.e. that would result to demotion,
then this would constitute a constructive
dismissal, violating the security of tenure.
Note: The fact that one candidate is better qualified
than the other is not a basis to issue the appointment to
the better qualified individual because what is simply
required is the possession by the appointee of the
minimum requirement for that position.
NOTES:
Where the appointment does not indicate a
specific station, an employee may be transferred
or reassigned provided the transfer affects no
substantial change in title, rank or salary. And the
rule that outlaws unconsented transfers as anathema to
security of tenure applies only to an officer who is
appointed - not merely assigned - to a particular
station (Sta. Maria vs. Lopez, 31 SCRA 637; De Guzman
Jr. vs. Comelec, 336 SCRA 188). The clue to such
transfers may be found in the nature of the appointment.
Where the appointment does not indicate a specific
station, an employee may be transferred or reassigned
provided the transfer affects no substantial change in
title, rank and salary (supra). A person appointed as
Principal in the Division of City Schools, Quezon City,
NCR, and stationed as Principal in the Carlos Albert High
School in Quezon City, could lawfully be reassigned or
transferred to any station or school in Quezon City,
without demotion in rank or diminution of salary, as the
exigencies of public service require even without her
consent (DECS vs. CA, 183 SCRA 555).
A reassignment in good faith and in the
interest of the government service is permissible
and valid even without the employee's prior
assignment (Bentain vs. CA, 209 SCRA 644). A
reassignment that is indefinite and results in a reduction
in rank, status and salary, is in effect, a constructive
removal from the service (supra).
Reassignment:
1. Good faith
2. Done in the interest of government service
Permissible
What is not permissible:
1. Indefinite reassignment
2. Results in reduction of rank, status and salary
--constructive removal from service
Where the reassignment of respondent
Bienvenido Icasiano from School Division Superintendent
of Quezon City to Vocational School Superintendent of
the Marikina Institute of Science and Technology,
embodied in a Memorandum of DECS Secretary Ricardo
Gloria as approved by the President of the Philippines,
appears to be indefinite, such reassignment violates
respondent’s security of tenure. The lack of
temporariness of the assignment can be inferred from
the Memo to the effect that the reassignment will “best
fit his qualifications and experience” being “an
expert in vocational and technical education.”
Nothing therein shows that the reassignment is
temporary or would only last until a permanent
replacement is found as no period is fixed (Gloria vs.
CA & Icasiano, 338 SCRA 10).
Appointments to the staff of the Civil Service
Commission are not appointments to a specified public
office but rather appointments to particular positions or
ranks. Thus, reassignment of petitioners, who were
appointed to positions of Directors of offices within the
Commission, to the Commission's regional offices,
without their consent, did not violate their
constitutional right to security of tenure. Section 17
(Book V, Title 1, Chapter 3) of the 1987 Revised
Administrative Code had expressly authorized the
Commission to carry out "changes in the
organization" as the need arises (Fernandez vs. Sto.
Tomas, 242 SCRA 193).
Commission authorized to carry out changes in the
commission as the need arises.
Although the reassignment is presumed regular
and made in the interest of public service unless proven
otherwise or if it constitutes constructive dismissal (CSC
MC No. 40, s. 1998), there is bad faith attendant to
herein case evidenced by the fact that the reassignment
was issued days after the reassigned officials filed a
graft case against petitioner LWUA Administrator.
Also, his reassignment orders were illegal because by
law, the authority to reassign officers of the LWUA
lies with the Board; his authority is merely to
recommend a reassignment to the Board (Reyes, Jr.
vs. Belisario, 596 SCRA 35).
Exception to the presumption of regularity: official’s act
is not within the duties specified by law(ultra vires)
The presumption of regularity, as relied upon by
the Ombudsman in dismissing the oppression charge,
does not apply when an official’s acts are not within
the duties specified by law, particularly when his
acts pertain to another entity or public official. The
authority to reassign officers lies with the LWUA Board
and not with the petitioner administrator (supra).
Look into the nature of his appointment.
If with specific station- NOT transferred
WITHOUT consent
55 | P a g e
 If without specific station- CAN be transferred
without consent provided that there is NO
DIMINUTION of status, rank and salary
If with DEMOTION- constructive dismissal
Sta. Maria v. Lopez
(31 SCAR 637)
Facts: Petitioner, a professor of English and
Comparative Literature (formerly Dean of the UP
College in Baguio), was elected Dean of the
College of Education by the Board of Regents, on
nomination of the UP President. His appointment as
such Dean was for a five year term, "effective May
16, 1967 until May 17, 1972, unless sooner
terminated, with all the rights and privileges as well
as the duties and obligations attached to the position
in accordance with the rules and regulations of the
University and the Constitution and laws of the
Republic of the Philippines.
As far back as February 11, 1969, the
graduate and undergraduate students of the UP
College of Education presented to President Salvador
P. Lopez a number of demands having a bearing on
the general academic program and the physical plant
and services, with a cluster of special demands.
According to them, Dean Sta. Maria did not act on
some of their demands, i.e. absence of definite
standards and procedures on academic work,
including teaching load, administrative and committee
assignments, faculty evaluation, and favoritism and
discrimination.
Thereafter, the students boycotted their
classes and demanded for the forced resignation of
Sta. Maria. Armed with the vote of confidence of the
education faculty, President Lopez issued the transfer
order, Administrative Order 77, which transferred
Sta. Maria from the College of Education to the Office
of the President as Special Assistant 8 with the rank of
Dean, without reduction in salary, in the interest of
the service. Said transfer involved only the
administrative position and in no way affected Sta.
Maria’s status as professor of the University.
Simultaneously, President Lopez appointed ad interim
Professor Nemesio R. Ceralde as "acting Dean of the
College of Education, without additional
compensation.
Issue: WON the transfer was valid? NO.
Held: First. Petitioner's contract of employment has
a fixed term of five years. It is not an
appointment in an acting capacity nor is
petitioner's designation that of an officer-in-
charge as it is known in administrative practice.
Second. Nothing in the rules and regulations of
the university or its charter would indicate that a
college dean appointed with a term can be separated
without cause. On the contrary, reason there is to
believe that the university policy points quite to the
contrary. An instance is the resolution of the Board of
Regents fixing the term of office of the UP President.
It was there stated that "uncertainty of tenure and
frequency of change in the incumbent of the position
are not for the best interests of the University."
Third. Again, there is nothing either in the UP charter
or code empowering the UP President or the Board of
Regents to insert such a clause “ unless sooner
terminated” as would authorize dismissal at
will.
Fourth. As this Court, in Lacson vs. Roque, 92 Phil.
456, 463, ruled, "strict construction of law relating to
suspension and removal, is the universal rule."
Petitioner, with a definite term of employment,
may not thus be removed except for cause. The
fixity of the term of office gives rise to the inference
that he may be removed from office only for
misbehavior as to which he shall be entitled to notice
and hearing. As was well pointed out in Lacson vs.
Roque, "[a]n inferential authority to remove at
pleasure cannot be deduced, since the existence of
a defined term, ipso facto negatives such an
inference and implies a contrary presumption,
i.e., that the incumbent shall hold office to the end of
his term subject to removal for cause."
Dean of UP College: competitive or unclassified civil
service position
A dean of a UP college holds a non-
competitive or unclassified civil service position.
As such, and upon the provisions of his contract of
employment, he is protected by constitutional and
statutory provisions on security of term. He
cannot be removed during the term except for
cause and after prior hearing and investigation,
which requisites are also embodied in the university
charter and in the university code."
Hearing: only in cases of removal, dismissal or
suspension
But is there really need for a formal prior
hearing? No need. The Civil Service Law requires
prior hearing only in cases of removal, dismissal
or suspension. Sta. Maria was not suspended,
dismissed or removed. He was merely transferred
to another position without reduction in salary
or rank in the interest of public service. A
TRANSFER is a "movement from one position
to another which is of equivalent rank, level or
salary, without break in service."
Promotion 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 salary."
A transfer that results in promotion or demotion,
advancement or reduction or a transfer that aims to
"lure the employee away from his permanent
position", cannot be done without the
employee's consent. For that would constitute
removal from office. Indeed, no permanent unless
the officer or employee is transfer can take place
unless the officer of the employee is first
56 | P a g e
removed from the position held, and then
appointed to another position. When an officer is
reduced in rank or grade and suffers a big cut in pay,
he is demoted; and when he is demoted, he is
removed from office.
Demotion is not just reduction of salary!!!
But a DEMOTION means something more than a
reduction in salary: there may be a demotion in the
type of position though the salary may remain the
same. A transfer that aims by indirect method
to terminate services or to force resignation
also is removal.
Concededly, transfers there are those which
do not amount to removal. Some of such transfers
can be effected without the need for charges being
preferred, without trial or hearing, and even without
the consent of the employee. The clue to such
transfers may be found in the "nature of the
appointment." Where the appointment does not
indicate a specific station, an employee may be
transferred or reassigned provided the transfer
affects no substantial change in title, rank and
salary. Thus, one who is appointed "principal in the
Bureau of Public Schools" and is designated to head a
pilot school may be transferred to the post of
principal of another school.
That the university is vested with corporate
powers exercised by the board of regents and the
President is a proposition which is not open to
question. The board, upon recommendation of
the President, is clothed with authority to hire
and fire after investigation and hearing. The
President, on the other hand, may fill vacancies
temporarily, transfer faculty members from one
department to another, and make arrangements to
meet emergencies occurring between board meetings
so that the work of the university may not suffer.
To be stressed at this point, however, is that
the appointment of Sta. Maria is that of "Dean,
College of Education, University of the Philippines."
He is not merely a dean "in the university". His
appointment is to a specific position; and, more
importantly, to a specific station. A line of
distinction must be drawn between the office of dean
and that of professor, say, of English and
Comparative Literature. A professor in the latter
capacity may be assigned to handle classes from one
college to another or to any other unit in the
university where English is offered. He may even be
transferred from graduate school to undergraduate
classes. He cannot complain if such was done without
his consent. He has no fixed station. As for him, it
can always be argued that the interests of the
service are paramount. But a college dean holding
an appointment with a fixed term stands on a
different plane. He cannot, without his consent, be
transferred before the end of his term. He cannot be
asked to give up his post. Nor may he be appointed
as dean of another college. Much less can he be
transferred to another position even if it be dignified
with a dean's rank.
We now come to the problem of whether or
not petitioner’s transfer was permanent. Facts
there are which would show that far from being a
temporary measure, petitioner's transfer was in
fact a removal. Respondent university president
himself admitted that the transfer order was an ad
interim appointment. That the transfer was a removal
has been confirmed by the UP President's
reference to Sta. Maria's deanship of the College
of Education as his "former position". This plainly
indicates that Sta. Maria ceased to be dean of the
college. Thus, The validity of Dean Sta. Maria's
designation or appointment as Special Assistant to
the President rests upon two acts: (a) The transfer
order of July 23, 1969, which operates as an ad
interim appointment under Art. 44(e) of the Revised
U.P. Code; and (b) The confirmation on such
appointment by the Board of Regents in its special
meeting on July 25, 1969.
Moreover, there is the fact that Nemesio
Ceralde was appointed "ad interim" acting dean of the
College of Education. And, Ceralde's appointment was
confirmed by the Board of Regents. Again, there is
respondent's averment that petitioner's new position
as special assistant to the President could be a
stepping-stone to a higher position, that of Vice
Presidency of the university. Were his appointment
but temporary, there would be no occasion to say
that he could be elevated to another position of a
higher category.
So in the case of Sta. Maria, clearly, there is
here a substantial change in terms of rank and even in
position. Take note that his appointment indicated a
specific office or station as dean of college of education
and in the reassignment, to the office of the president.
He was deprived of his authority as dean of the
college of education. Clearly, there is here a
violation of his security of tenure.
DECS v. CA
(183 SCRA 555)
Reassignment of Gloria Navarro as Principal in Division
of City Schools, Quezon City
There are a lot of division schools!
You have here Gloria Navarro appointed as
principal in the city school division of Quezon
City, NCR. She was assigned in Carlos Albert High
School, Quezon City for 5 years. Subsequently,
there was an order reassigning her from the Carlos
Albert High School to the Manuel Roxas High School,
Quezon City. Is there here a violation of the security
of tenure? Take note that here, the appointment
indicated that she was appointed to the position of
principal in the division city school of Quezon City.
The division of city school covers the various
schools in Quezon City and thus she may be
reassigned from one school to another in
57 | P a g e
Quezon City but not outside. Here, there was no
violation of security of tenure.
Gloria v. CA & Icasiano
(338 SCRA 10)
INDEFINITE REASSIGNMENT
Reassignment that is indefinite violates security of
tenure and is in effect constructive dismissal.
You have here Icasiano whose appointment
was as schools division superintendent of
Quezon City. On the basis of a memorandum
prepared by Secretary Gloria of DECS (now DepEd)
and approved by the President of the Philippines,
Icasiano was reassigned to the vocational school of
Marikina Institute of Science and Technology (MIST)
as its new schools division superintendent. And so
there was this issue on the validity of the
reassignment. Now, the nature of the reassignment
here was temporary but the order of reassignment
indicated permanency. So if the memorandum clearly
indicates lack of temporariness, this would be
violative of the security of tenure. Is it possible, let us
say, for an employee even when appointed to a
specific station, to be reassigned? The GENERAL
RULE is NO. The EXCEPTION if he agrees . If
he consents to such reassignment, there is no
violation of the security of tenure. But again, the
nature of the reassignment or transfer must be
temporary. It cannot be permanent. So here in the
case of Icasiano, on the basis of his supposed
“expertise and training,” he was transferred to MIST,
which transfer did not indicate a time
within which he could serve in such
capacity. Clearly, there was lack of temporariness
negating good faith, thus there is violation of
Icasiano’s security of tenure.
NO definite time—until when was the appointment??
Fernandez v. Sto. Tomas
(242 SCRA 193)
Facts: Fernandez was then the Director of the Office
Personnel and Audit of the CSC. He was transferred
to Region V. Another guy, Director Delima, was
reassigned to Region III. They complained violation of
due process, that there was a constructive illegal
dismissal as a result of their being transferred; and
that this was a demotion.
Held: Their claims are incorrect. Their appointments
to the commission are not appointments to
specific offices. They are appointments of ranks.
Take note that EO 292 gives authority to CSC to
effect changes when the need arises. So there
can be a valid transfer without violating the security
of tenure. Now, what about their security of tenure to
their respective positions? Take note that there are
three levels of officers in the career service: (clerical
position, technical position, career executive). The
third level pertains to the higher levels in the Civil
Service. You have 6 grades here in the Career
Executive Service. The lowest in the rank is 6 and
highest is 1. Unlike in the first and second levels
where security of tenure is acquired with respect to
the position occupied, this is not so in the case of the
third level because appointments issued to individuals
in the third level does not have security of tenure as
to the position. The security of tenure is with
respect to the rank.
Q: What is a PROMOTION?
A: 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 salary.
Q: What is a DEMOTION?
A: Under Section 11, Rule VII of the Omnibus Rules
Implementing Book V of EO 292, it is the movement
from one position to another, usually involving the
issuance of an appointment, with a diminution in
duties, responsibilities, status or rank. A diminution
in any one of those categories is sufficient to
constitute a demotion, hence, tantamount to a
virtual dismissal. Take note that a demotion clearly
violates security of tenure. There may be in fact
constructive dismissal from the service by reason of
demotion, which may be in the guise of a
reassignment.
Example: When a person is reassigned from one
unit to another in the same agency but there is a
diminution in terms of his responsibilities or duties
because the new assignment is not given
anymore the power to supervise employees.
Clearly this is a demotion, a violation of the CS rule.
Padolina vs. Fernandez
342 SCRA 488
Private respondent Ofelia Fernandez occupied the
position of Finance and Management Division Chief of
the PAG-ASA-DOST. She was reassigned to the PAG-
ASA Bicutan Office with the same position. However,
in her previous office, she supervised over 41
employees. In her new place of assignment, she
did not anymore exercise such power of
supervision over the subordinate employees.
The Court held that there is a demotion, a violation of
her security of tenure.
Q: What is a REASSIGNMENT? --
A: This pertains to the movement of an employee from
one unit to another in the same department or
agency, which does not involve a reduction in
duties, responsibilities, status or rank. This
does not require the consent of the employee
concerned, nor a prior appointment. As a rule,
this is valid. There is no violation of the security of
58 | P a g e
 tenure. This can be done in the interest of public
service and so long as it is done in good faith.
Example: If a person is reassigned from one unit to
another in the same agency or in the same
government, say the City of Davao, and the person
is reassigned from the records to the administrative
division, but still in the same office.
But the rule is different where the appointment
issued to the officer has a specific station (Sta. Maria
case). If the appointment is to some specific station,
you can only be reassigned with your consent. If you
do not consent to the reassignment, you cannot be
compelled to be reassigned. But if appointment does
not indicate a specific station, one cannot complain
of violation of security of tenure so long as it the
same was done in good faith. Also, when the
reassignment involves a diminution in rank, salary,
duties, this amounts to a demotion, hence, requiring
the consent of the officer or employee.
Q: What is a TRANSFER?
A: It is the movement from one department to another,
from one office to another, which is of equivalent
rank, level or salary, without break in the service.
Clearly, this would require the prior consent of the
employee. In fact, there should be an issuance of a
new assignment or a prior appointment, because you
are being transferred from one department to
another in violation of the security of tenure.
Tuason vs. Cassion
435 SCRA 295
Mayor Plaza of Butuan issued an order
reconstituting the social development office. By
reason of such action, several DSWD employees who
were devolved to the LGU, were reassigned. They
staged a protest. SC upheld the authority of the
mayor in effecting such reassignments. They can
effect a devolution under the LGC pursuant to the
autonomy given to LGUs. The matter of transfer of
office which is mere physical transfer of office from
one place to another is not the transfer contemplated
under the law so as to constitute a violation of the
security of tenure. Moreover, in issuing designations,
and again take note the concept of designation which
is temporary in nature, there was no violation of
security of tenure.
Chato vs. Martinez
344 SCRA 18
Facts: You have here Martinez, an employee of the
BIR occupying the position of Chief Revenue District
Officer of District 34 of the Assessment Division in the
BIR field office. By virtue of an order from then BIR
Commissioner Chato, Martinez was reassigned to the
Collections Program of the national office. The latter
complained that the reassignment violated her
security of tenure because her new assignment was
totally alien to her, her field of expertise being in
assessment rather than in collection.
Held: SC ruled that there was no violation of her
security of tenure because the BIR commissioner in
fact has the power to appoint or reassign employees
and officers of the BIR when exigencies of the agency
require. Public interest requires that she be
reassigned. The only caveat here, or in any
reassignment, is that there should be no diminution in
terms of status, rank or salary. In this case, there
was no such reduction. Therefore, there was no
violation of security of tenure. Another reason here is
that, to allow the claim of Martinez would be to
subordinate the interest of the national government
to the whims and preferences of the government
employees. This should not be the case.
Q: Suppose a clerk in the city government is being
transferred from the records division to some field
office. Valid or invalid? Let us say this guy complains
of violation of tenure. So how will we determine if
there indeed is a violation?
A: You have to look into the nature of his appointment
extended to him. If the appointment given to him
indicated a specific station, then clearly that
employee may not be transferred or assigned
without his consent. Without consent, there is
violation of security of tenure. On the other hand, if
the appointment was without a specific station, then
you can be reassigned without your consent provided
that the transfer or reassignment does not involve a
substantial change in his status, salary, rank or
position. Because if there is change, i.e. that would
result to demotion, then this would constitute a
constructive dismissal, violating the security of
tenure.
Note: The fact that one candidate is better qualified
than the other is not a basis to issue the appointment to
the better qualified individual because what is simply
required is the possession by the appointee of the
minimum requirement for that position.
Reyes, Jr. v. Belisario
(596 SCRA 35)
FACTS:
Deputy Administrators Simplicio Belisario, Jr. and
Emmanuel B. Malicdem6(respondents), along with Daniel
Landingin and Rodolfo S. De Jesus, all officers of the
Local Water Utilities Administration (LWUA), filed before
the Office of the Ombudsman a criminal
complaint against LWUA Administrator Prudencio M.
Reyes, Jr. (petitioner) for violation of Section 3(e) of
Republic Act No. 3019, or the Anti-Graft and Corrupt
Practices Act. only 13 days after the filing of the graft
charge, the petitioner issued Office Order No. 69
reassigning respondents together with De Jesus from the
offices they then held to the Office of the Administrator.
Supposedly, the reassigned officers were to act as a core
group of a LWUA Task Force and their specific
assignments were to be given by petitioner; Officers-in-
Charge (OICs) were designated for the offices they
vacated.
59 | P a g e
Atty. Espinas, LWUA corporate legal counsel, sought the
opinion of the Civil Service Commission regarding the
regularity of the reassignments of respondents and of De
Jesus.
The CSC responded on April 3, 2000 through a
legal opinion where it categorically ruled that the
reassignments were not in order, were tainted with bad
faith, and constituted constructive dismissal.
NOTES:
- The issuance came after the case (charges
against Reyes before the Ombudsman)
- Under LWUA, admin has no power to reassign,
but the BOD. Admin simply has the power to
recommend, but ultimately it is the BOD.
- Issuance is characterized by bad faith as it was a
retaliation of the graft and corruption charges
ISSUE: WON the reassignments are proper
HELD: NO.
As a general rule, "official acts" enjoy the
presumption of regularity, and the presumption may be
overthrown only by evidence to the contrary. When an
act is official, a presumption of regularity exists because
of the assumption that the law tells the official what his
duties are and that he discharged these duties
accordingly. But not all acts of public officers are "official
acts," i.e., acts specified by law as an official duty or as a
function attached to a public position, and the
presumption does not apply when an official’s acts are
not within the duties specified by law, particularly when
his acts properly pertain or belong to another entity,
agency, or public official.
In the present case, the CSC had spoken by way
of an en banc resolution, no less, that the petitioner
LWUA Administrator’s reassignment orders were illegal
because, by law, the authority to reassign officers and
employees of the LWUA lies with the LWUA Board; the
LWUA Administrator’s authority is merely to recommend
a reassignment to the Board. For reason of its own, the
Office of the Ombudsman disregarded this clear
statement of the legal allocation of authority on the
matter of reassignments. This omission cannot but have
fatal consequences for the Ombudsman’s decision,
anchored as it is on the presumption that the petitioner
regularly performed his duty. For, shorn of any basis in
law, the petitioner could not have acted with official
authority and no presumption of regularity could have
been applied in his behalf. Without a valid presumption
of regularity, the major linchpin in the Ombudsman’s
decision is totally removed and the decision is left with
nothing to support itself.
We note in this regard that the Office of the
Ombudsman, other than through its "non-finality"
argument, completely failed to explain why the
reassignment orders were valid and regular and not
oppressive as the respondents alleged. Effectively, it
failed to rebut the CSC’s declaration that a constructive
dismissal took place. This omission is critical because the
constructive dismissal conclusion relates back to the
filing of graft charges against the petitioner as motive;
explains why the respondents were transferred to ad hoc
positions with no clear duties; and relates forward to the
manner the respondents were ejected from their
respective offices.
CAREER EXECUTIVE SERVICE (CES)
Security of tenure in the Career Executive
Service (CES) is acquired with respect to rank and not
to position. The guarantee of security of tenure to
members of the CES does not extend to the particular
positions to which they may be appointed – a concept
which is applicable only to first and second-level
employees in the civil service – but to the rank to which
they are appointed by the President. As Josefina Bacal
does not have the rank appropriate for the position of
Chief Public Attorney, her appointment to that position
cannot be considered permanent, but merely temporary,
and she cannot claim security of tenure in respect of that
position. She did not acquire security of tenure by the
mere fact that she was appointed to the higher position
of Chief Public Attorney since she was not subsequently
appointed to the rank of CESO 1 based on her
performance in that position as required by the rules of
the CES Board. Respondent as a CESO can be reassigned
from one CES position to another and from one
department, bureau or office to another. Within the CES,
personnel can be shifted from one office or position to
another without violation of their rights to security of
tenure because their status and salaries are based on
their ranks and not on their jobs. Respondent, who
holds a CES Rank III, was correctly and properly
appointed by the appointing authority to the position of
Regional Director, a position which has a corresponding
CES Rank Level III, and this cannot be considered a
demotion nor violative of security of tenure. This was her
position before her appointment on Feb. 5, 1998 to the
position of Chief Public Attorney of the PAO, which
requires a CES Rank Level 1 for appointment thereto.
She may have been considered for promotion to Rank 1
to make her appointment as Chief Public Attorney
permanent. The fact, however, is that this did not
materialize as petitioner Carina Demaisip was appointed
in her place (Cuevas vs. Bacal, 347 SCRA 339).
On the fact that petitioner is a CES eligible, the
law (Integrated Reorganization Plan) allows in
exceptional cases the appointment of non-CES eligibles
provided that the appointee subsequently passes the
CES Examinations. On the other hand, as Bacal herself
does not have the requisite qualification for the position
of Chief Public Attorney, she cannot raise the lack of
qualification of petitioner Demaisip. In a quo warranto
proceeding, the person suing must show that he has a
clear right to the office allegedly held unlawfully by
another. Absent that right, the lack of qualification or
eligibility of the supposed usurper is immaterial (supra).
Under the Rules promulgated by the CES Board, what
entitles an examinee to a conferment of a CES eligibility
is his passing the CES examination. Upon conferment of
a CES eligibility, an incumbent of a CES position may
qualify for appointment to a CES rank. After such
appointment, the appointee is entitled to security of
tenure. Petitioner, who was appointed Assistant
Department Manager of the PCSO, does not possess the
required CES eligibility. Hence, he has not security of
tenure. His appointment did not attain permanency,
thus, it can be withdrawn from him anytime without
violation of the right to security of tenure (Caringal vs.
PCSO, 472 SCRA 577).
60 | P a g e
 The Court affirmed the validity of petitioner
Amores’ separation from service without cause as
Deputy Director for Hospital Support Services at the
Lung Center of the Philippines. Said position belongs to
the CES appointments to which by law require that the
appointees possess the corresponding CES eligibility.
Although the law permits on many occasions the
appointment of non-CES eligibles to CES positions in the
government in the absence of appropriate eligibles and
when there is necessity in the interest of public service
to fill vacancies in the government, however, in all such
cases, the appointment is at best merely temporary as it
is said to be conditioned on the subsequent acquisition of
the required CES eligibility (Amores vs. CSC, 29 April
2009).
The security of tenure of employees in the CES
(except first and second-level employees in the civil
service), pertains only to rank and not to the office or to
the position to which they may be appointed. Thus, a
CESO may be transferred or reassigned from one positon
to another without losing his rank which follows him
wherever he is transferred or reassigned. In fact, a CESO
suffers no diminution of salary even if assigned to a CES
position with lower salary grade, as he is compensated
according to his CES rank and not on the basis of the
position or office he occupies (General vs. Roco, 350
SCRA 528). While there is a distinction between position
and rank, such that a CESO may be transferred or
reassigned from one position to another without losing
his rank, there can be no distinction between resigning
from a position and resigning from a rank. The rank of a
CESO is deactivated upon resignation from the
government service, which includes resignation of a
CESO from his position (Collantes vs. CA, CSC and DND,
06 March 2007).
A major feature of the Integrated
Reorganization Plan which was adopted and declared
part of the law of the land by PD No.1 on Sept. 24, 1972
was the creation of the CES. This group of career
executives shall be carefully selected based on high
qualifications and competence… and shall act as catalysts
for administrative efficiency and agents of administrative
innovation. Their status and salary will be based on their
rank and not on the job that they occupy at any given
time. The rank classification in the CES will allow for
mobility or flexibility of assignments such that
government could utilize their services or special talents
wherever they are most needed. Thus, mobility and
flexibility in the assignment of personnel to cope with the
exigencies of the service is the distinguishing feature of
the CES (Cuevas vs. Bacal).
In order for a position to be covered by the CES,
two elements must concur. First, the position must either
be (1) a position enumerated under Bk V, Title I(A),
Chapter 2 of the Administrative Code of 1987, i.e.
Undersecretary, Asst. Secretary, Bureau Director, Asst.
Bureau Director, Regional Director, Assistant Regional
Director, Chief of Department Service, or (2) a position
of equal rank as those enumerated, and identified by the
CES Board to be such position of equal rank. Second, the
holder of the position must be a presidential appointee.
Failing in any of these requirements, a position cannot
be considered as one covered by the third level or CES.
The holder of the position of Asst. Department Manager
ll is appointed by the PCSO General Manager, and not by
the President of the Philippines, accordingly, said
position is not covered by the third level or the CES, and
does not require Career Service Executive (CSE)
eligibility. Therefore, the appointments of Sarsonas and
Ortega as Asst. Dep’t. Manager ll do not require third
level eligibility pursuant to the Civil Service Law, rules
and regulations (CSC vs. CA, 635 SCRA 749). The
position of HIGC Vice President is not covered by the
CES as the position is not enumerated by law as falling
under the third level; respondent Cruz has not
established that the position is one of those identified by
the CESB as being of equivalent rank to those listed by
law; and the holder thereof is not appointed by the
President (Home Insurance Guarantee Corp. vs. CSC,
220 SCRA 148). A person occupying the position of Graft
Investigation Officer lll is not appointed by the President
but by the Ombudsman as provided in Article lX of the
Constitution. To classify said position as belonging to the
CES and require an appointee thereto to acquire CES or
CSE eligibility before acquiring security of tenure would
be absurd as it would result either in (1) vesting the
appointing power for said position in the President, in
violation of the Constitution; or (2) including in the CES
a position not occupied by a presidential appointee,
contrary to the Administrative Code (Ombudsman vs.
CSC, 451 SCRA 570).
The position of Vice President of HIGC does not
belong to the 3rd level of the career service. Respondent
Cruz has not satisfactorily shown that his former position
as Vice President in the HIGC belongs to the third level in
the career service as prescribed by law, nor has he
established that it is one of those identified by the CESB
as of equivalent rank to those listed by law. Neither is it
claimed tha he was appointed by the President (Home
Insurance Guarantee Corporation vs. CSC, 220 SCRA
148). Under the Constitution, the Ombudsman is the
appointing authority for all officials and employees of the
Office of the Ombudsman, except the Deputy
Ombudsmen. Director ll positions in the Central
Administrative Service and the Finance Management
Service of the Office of the Ombudsman are appointed
by the Ombudsman and not by the President. Hence,
they are not covered by the CES. The CES covers
presidential appointees only. To classify these positions
as covered by the CES and require appointees thereto to
acquire CES or CSE eligibility before acquiring security of
tenure will lead to unconstitutional and unlawful
consequences. It will result either in (1) vesting the
appointing power for said position in the President, in
violation of the Constitution or (2) including in the CES a
position not held by a presidential appointee, contrary to
the Administrative Code (Ombudsman vs. CSC, 528
SCRA 535).
The position of Director Manager ll at the PEZA
is not among the enumerated positions in the Career
Executive Service, much less, a position that requires
presidential appointment. For said reason, Agyao only
needs the approval of the PEZA Director-General to
validate his appointment or re-appointment. As he need
not possess a CESO or CSEE eligibility, the CSC has no
valid and legal basis in invalidating his appointment or
re-appointment as Department Manager ll. The CA
decision affirming the invalidation by the CSC of
61 | P a g e
petitioner Agyao as Department Manager ll of Philippine
Economic Zone Authority was thus reversed and set
aside by the SC (Agyao vs. CSC, 18 January 2011).
Positions excluded from the coverage of the CES per
CESB Resolution No. 799 (May 19, 2009):
a. Managerial and executive positions which have fixed
term of office as provided for in the charter of the
agency or as specified by law;
b. Managerial and executive positions in the non-
career service which include the following:
i. Elective officials and their personal or
confidential staff;
ii. Secretaries and other officials of cabinet rank
who hold their positions at the pleasure of the
President and their personal or confidential staff;
iii. Chairman and members of commission and
boards with fixed terms of office and their
personal or confidential staff;
iv. contractual personnel; and
v. emergency and seasonal personnel.
c. Managerial and executive positions in the national
government belonging to the closed career systems
which are administered by special bodies such as the
Foreign Service, PNP, State Colleges and Universities
unless otherwise provided in their respective charters,
the Scientific Career Service and the like;
d. The position of Head Executive Assistant.
Caringal v. PCSO
(472 SCRA 577)
Facts: Atty. Jose Caringal was issued an
appointment by the chair of the PCSO headed by the
late Justice Muñoz-Palma as Assistant Legal Adviser
of the PCSO Legal Department. It appears that
Caringal lacked the required career service eligibility.
Thereafter, when justice Palma was replaced as the
chair, his successor Gulpeo issued an order
reassigning petitioner to the active and investment
department. Petitioner protested the reassignment
order on the ground that it is a constructive dismissal.
Subsequently, he was dismissed by PCSO. Caringal
filed an action for illegal dismissal before the Civil
Service.
ISSUE: WON the dismissal was proper
Held: The dismissal was proper. The position of
Assistant Legal Officer previously occupied by
petitioner belongs to the third level. The first and
second level’s (clerical and technical) security is with
regard to the position while the third level’s security
of tenure is with regard to the rank. Is there a
possibility that even a non-eligible may be appointed
to such position in the third level? The rule here is: A
permanent appointment can be issued only to a
person who possesses the requirements for the
position including the required eligibility. As an
exception, in order to prevent paralyzation of the
government operation, there is an urgent necessity to
fill the position that even a non-eligible gets
appointed but only in a temporary capacity. The law
provides that such appointments should not exceed
12 months. But even before the 12-month period, if
there be an eligible available, the non-eligible may be
replaced by the eligible, without violation of security
of tenure, since he merely holds office in a temporary
capacity.
SC also laid down the practice test in the
matter of securing this CES rank. The fact that one
individual is better qualified to the position than the
other is not a basis to issue the appointment to the
better individual because what is required is that the
appointee possesses the minimum requirement to be
appointed to the position, i.e. passing the CES
examination. If the person already is a CES eligible,
he may then be entitled to qualification for
appointment. So he gets to qualify appointment to
CES rank upon the recommendation of CES board.
The matter of issuing this CES rank will be done by
the Office of the President. It approves the ranking of
the CES eligible on the basis of the recommendation
of the CES board and the recommendation of the CES
board shall be premised on the evaluation of the
performance in the CES. It is only when there is
already this ranking given to the CES eligible that he
obtains security of tenure.
Cuevas v. Bacal
(347 SCRA 339)
FACTS:
Bacal was a regional director in the PAO office in
Cagayan. During the time of President Ramos she got
appointed from regional director to the top position
Chief Public Attorney under the DOJ, which has a
CESO rank I. But in her case, she only held the CESO
Rank III. And so when Estrada assumed office as
President, he appointed another person, Carina
Dimaisip. Bacal complained that Cuevas was not even
CESO while she is. In effect, she, a CESO, was
replaced by non-CESO.
Is it possible? As an exception, yes. The
concept of this CES and how its works, the feature of
this CES are MOBILITY and FLEXIBILITY on the part
of the government in assigning or reassigning
competents in the career office on the basis of their
performance. And they can be re-assigned or
transferred without violating their security of tenure
because the security of tenure is with respect to their
rank and not with respect to their position. The
objective here is to enable the government to make
use of the talents pertaining to the CESO.
Now what about the issue on the non-
qualification of the person who replaced her? One
who questions the title to the office in a Quo
Warranto, must show that in fact she is lawfully
entitled to the position. In the case of Bacal, she
could not question the validity of Dimaisip’s
appointment because she herself is not qualified to
the position. She merely held the CESO Rank Level
III, while the position has the Rank Level I.
Moreover, Dimaisip’s appointment was only in a
temporary capacity.
62 | P a g e
 Amores v. CSC
(29 Apr 2009)
FACTS:
Ptr. Amores was the Deputy Director for Hospital
Support Services at the Lung Center of the Philippines
(LCP). When Dr. Zaldival, the Executive Director of the
LCP, retired from service, petitioner was designated as
OIC by DOH Sec. Romualdez, Jr.
ʘ Resp. Dr. Melendres was appointed by Pres. Estrada
as Executive Director of the LCP.
ʘ Controversy arose in the LCP. Melendres’ appointment
and leadership were questioned. Melendres filed charges
of dishonesty and double compensation against ptr. Ptr.
Was found guilty of having committed dishonesty by
engaging in private practice of his profession during
office hours.
ʘ ptr. Then received a letter informing him of his
separation from service as Deputy Director. CSC pointed
out that ptr’s separation from service was due to his luck
of a CES eligibility which is required for the position of
Deputy Director, and as such he enjoyed no security in
his tenure.
Issue: WON ptr, as Deputy Director, enjoys security of
tenure
Held: NO, he does not! The position of Deputy Director
for Hospital Support Services at the LCP belongs to the
CES appointments to which by law require that the
appointees possess the corresponding CES eligibility.
However, there was no showing that ptr. while holding
the said position, he was able to acquire the required
eligibility.
Because petitioner lacked the proper CES
eligibility, and therefore had not held the subject office in
a permanent capacity, there could not have been any
violation of ptr’s supposed right to tenure.
* Appointment of non CES eligibles to CES positions in
the government is merely temporary.
General v. LTO RD Roco
(350 SCRA 528)
FACTS:
ʘ Respondent Roco was appointed by then Pres. Ramos
in 1996 as Regional Director of LTO, a position
equivalent to CES rank level V. He was reappointed by
Pres. Estrada to the same position in 1999. At that time,
Resp. Roco was not a CES eligible. It was only in August
1999, during his incumbency, that he was conferred CES
eligibility.
ʘ On Sept. 1999, ptr. General, who is not a CES eligible,
was appointed by Pres. Estrada to the same position
occupied by respondent. Ptr. General was directed to
assume said office immediately and for resp. Roco to
report to the office of Sec. for further instructions.
ʘ Aggrived, res Roco filed befire the CA petition for quo
warrant, arguing that CES eligibility is all that an
employee needs to acquire security of tenure in the
service and that appointment to CES rank is not
necessary for the acquisition of such security of tenure.
Issue: WON appointment to a CES is necessary for the
acquisition of security of tenure in the service
Held: YES. Two requisites us concur in order that an
employee in CES may attain security of tenure:
1. CES eligibility
2. Appointment to the appropriate CES rank.
The rules and regulations promulgated by
the CES Board provides that: upon
conferment of a CES eligibility and
compliance with other requirements by the
Board, an incumbent of a CES position may
qualify for appointment to a CES rank.
Appointment to CES rank is made by the
President upon recommendation of the
Board. This process completes the official’s
membership in the CES and confers upon
him security of tenure.
* IN THE CASE, Roco, though CES eligible, does not
possess the appropriate CES rank - CES rank Level V for
the position of Regional Director of LTO. Falling short of
one of the qualifications, respondent cannot interpose
security of tenure.
While there is a distinction between position and rank,
such that a CESO may be transferred or reassigned from
one position to another without losing his rank, there can
be no distinction between resigning from a position and
resigning from a rank. The rank of a CESO is deactivated
upon resignation from the government service, which
includes resignation of a CESO from his position
(Collantes vs. CA , CSC , and DND , 06 March 2007)
De Leon v.Montesa
(371 SCRA 413)
Justification of transfer/ reassignment of CESO to other
positions: mobility and flexibility. The Integrated
Reorganization Plan (PD1) allows the appointment of
Non-CES eligibles, like Montesa as Ministry Legal
Counsel, provided they subsequently acquire the
eligibility.
FACTS:
Private respondent Atty. Jacob F. Montesa, who is
not a Career Executive Service Officer (CESO) or a
member of the Career Executive Service, was appointed
as “Ministry Legal Counsel - CESO IV in the Ministry of
Local Government” (now DILG) by then Minister Aquilino
Pimentel, Jr.  Private respondent’s appointment was
approved as permanent by the CSC. Then President
Corazon C. Aquino promulgated Executive Order No.
262, reorganizing the Department.Then Secretary Luis T.
Santos designated Nicanor M. Patricio as Chief, Legal
63 | P a g e
Service in place of private respondent who, in turn, was
directed to report to the office of the Secretary to
perform special assignments. Thereafter, Montesa file a
quo warranto proceedings against Santos and Patricio.
Meanwhile, Republic Act No. 6758 reclassified
Department Legal Counsel and ranked with “Assistant
Bureau Directors” under the generic position title of
“Director III”.
Hence, respondent was reinstated to the position:
“Department Legal Counsel and/or Director III.”
Respondent was relieved but reassigned as Director III
of Region XI. However, he failed to report to work.
Instead, he filed a 90-day sick leave and submitted a
memorandum signifying his intention to re-assume his
position.
ISSUE: Can a person who lacks the necessary
qualifications for a public position be appointed to it in a
permanent capacity?
HELD:
NO. It must be stressed that the position of Ministry
Legal Counsel -  CESO IV is embraced in the Career
Executive Service. Private respondent’s appointment did
not attain permanency.  Not having taken the necessary
Career Executive Service examination to obtain the
requisite eligibility, he did not at the time of his
appointment and up to the present, possess the needed
eligibility for a position in the Career Executive
Service.  Consequently, his appointment as Ministry
Legal Counsel - CESO IV/ Department Legal Counsel
and/or Director III, was merely temporary.  Such being
the case, he could be transferred or reassigned without
violating the constitutionally guaranteed right to security
of tenure.
Private respondent capitalizes on his lack of CES
eligibility by adamantly contending that the mobility and
flexibility concepts in the assignment of personnels under
the Career Executive Service[24] do not apply to him
because he is not a Career Executive Service
Officer.  Obviously, the contention is without merit.  As
correctly pointed out by the Solicitor General, non-
eligibles holding permanent appointments to CES
positions were never meant to remain immobile in their
status.  Otherwise, their lack of eligibility would be a
premium vesting them with permanency in the CES
positions, a privilege even their eligible counterparts do
not enjoy.
Notes:
Six CES Grades
1. Under Secretary -- Career Service—with security of
tenure
--Non-career Service—no security of
tenure; temporary
2. Assistant Secretary
3. Executive Directors, Regional and Provincial Directors
4. Assistant Executive Director
5.
6. Division Chief
- CES Rank is given by the President as
recommended by the evaluation of performance
in CES.
- When there is already a CES Rank, security of
tenure attaches in Third Level.
Collantes v. CA
(517 SCRA 561)
There is a distinction between position and rank. A CESO
may be transferred or reassigned from one position to
another without losing his rank. Rank of a CESO is
deactivated upon resignation from the gov’t
service, which includes the resignation of a CESO
from his position. Petitioner’s claim that his relief as
Undersecretary for Civil Relations of DND violated his
security of tenure as CESO is untenable because, by his
own deliberate deed, he resigned. Any express promise
of another position is void.
The mere fact that the President, by himself or
through another, requested for Collantes’ resignation
does not give the President the obligation to appoint him
to another position. There can be no implied promises of
another position just because the resignation was made
out of courtesy. Also, an express promise of another
position would be void because there can be no
derogation of the discretion of the appointing
power and because its object is outside the
commerce of man
On Promise
1. Power to appoint—discretion of appointing power
2. Against public policy—outside the commerce of
man
PRESIDENTIAL APPOINTMENTS
Kinds of Presidential Appointments
a) An ad interim appointment is one made during
the time when the appointing or confirming body is not
in session and there is an existing clear and
present urgency caused by an impending
obstruction or paralysis of the functions assigned
to the office if no immediate appointment is made
(Marohombsar vs. Alonto, 194 SCRA 268).
Under Article Vll, Sec. 16 of the Constitution, an ad
interim appointment is immediately effective and is
subject only to disapproval by the Commission on
Appointments or as a result of the next
adjournment of Congress (1991 BQ). Appointments
that are for the President solely to make, i.e.,
without the participation of the Commission on
Appointments, cannot be ad interim appointments
(Bautista vs. Salonga, 172 SCRA 160).
The appointment by the President of Mary
Concepcion to the position of Chair of the Commission on
64 | P a g e
Human Rights which under the Constitution is to be
made, in the first place, without the participation of the
Commission on Appointments was then and there a
complete and finished act (supra). Ad interim
appointments must be distinguished from
appointments in an acting capacity. Both of them are
effective upon acceptance. But ad interim
appointments of are extended only during a recess
Congress, whereas acting appointments may be
extended any time there is vacancy. More, ad interim
appointments are submitted to the Commission on
Appointments for confirmation or rejection; acting
appointments are not submitted to the Commission.
Acting appointments are a way of temporarily filling
important offices but, if abused, they can also be a way
of circumventing the need for confirmation by the
Commission. Thus, to avoid abuses, acting
appointments cannot exceed one year as expressly
provided in Sec. 17(3), Ch. 5, Book lll of EO 292
(Pimentel vs. Ermita, 472 SCRA 589).
Here, the appointment by Pres. GMA to respondents
Abad, Cruz Jr., Defensor, Durano, Gonzalez, Romulo,
Villa and Yap as acting secretaries of their respective
departments while Congress is in session is
constitutional. Her act impairs no power of Congress
since the Commission of Appointments is independent of
Congress and it powers do not come from Congress
but from the Constitution. Its exercise of powers is
executive and not legislative. The office of a
department secretary may become vacant while
Congress is in session. Since he is the alter ego of
the President, the acting appointee must
necessarily have the President’s confidence. The
President may even appoint in an acting capacity a
person not yet in the government service as long as
the President deems that person competent. There is no
abuse in the present case as Pres. GMA issued ad interim
appointments to respondents immediately upon the
recess of Congress, way before the lapse of one year.
(supra).
Q: May the person who is appointed or designated by
the President while Congress is in session already
assume office without awaiting the action of the
Commission on Appointments?
A: Yes. This should be done in order to prevent
paralysis in the government. But this is merely in an
ACTING CAPACITY, which is temporary in
nature.
AD INTERIM APPOINTMENTS IN AN
APPOINTMENTS ACTING CAPACITY
Both are effective upon acceptance
Extended only during Extended anytime there
recess of Congress is vacancy
Submitted to the Only a way of
Commission on temporarily filling
Appointments for important offices but if
confirmation or abused, they can also be
rejection a way of circumventing
the need for
confirmation by the
Commission.
Pimentel v. Ermita
(472 SCRA 589)
Facts: You have here Senator Pimentel questioning
the appointment or designation issued by President
GMA to several individuals (Abad, Cruz, Jr., Defensor,
Durano, Gonzales, Romulo, Villa and Yap, etc.) as
acting secretaries of their respective
departments while Congress is in session.
Pimentel argued that they should not be allowed to
assume office in the absence of the concurrence by
the Commission on Appointments as required by the
Constitution.
Held: SC ruled that this is a valid issuance by the
president because they were simply issued in an
acting capacity. GMA’s act impairs no power of
Congress since the Commission on Appointments is
independent of Congress whose powers come from
the Constitution. Its exercise of powers is executive
and not legislative. The office of a Department
Secretary may become vacant while Congress is in
session. Congress, through a law, cannot impose on
the President the obligation to appoint automatically
the undersecretary as her temporary alter ego. An
alter ego, whether temporary or permanent,
holds a position of great trust and confidence.
Even one who has not yet been in the government
service may be designated or appointed by the
President in an acting capacity, say as department
head. There may be a possibility of abuse here, right?
The rule is, to prevent such abuse, the acting
appointment cannot exceed one year. There is
no abuse in the present case as President GMA issued
ad interim appointments to respondents immediately
upon the recess of Congress, way before the lapse of
one (1) year.
Matibag v. Benipayo
(380 SCRA 49)
FACTS:
Pres. Arroyo appointed, ad interim, Benipayo as
COMELEC chairman, and Borra and yuason as
COMELEC Commissioners. The ad interim
appointments were submitted to the Commission on
Appointments for confirmation, however, CA did not act
on said appointments. Pres. Arroyo renewed the ad
interim appointments of Benipayo, Borra and Tuason to
the same positions.
ʘ Benipayo, as COMELEC chairman, issued a
Memorandum designating Cinco, Director IV of the EID,
as Officer in Charge of EID and re-assigning petitioner,
who is a Director III of EID, to the law Dept.
65 | P a g e
ʘ Ptr filed this petition questioning the appointment of
Benipayo, Borra and Tuason, claiming that their
appointments violate the constitutional provision of the
independence of the COMELEC, as well on the
prohibitions on temporary appointments and
reappointments of its Chairman and Members.
ʘ Ptr posits the view that as interim appointment is
temporary in character since it can be withdrawn by the
President at her pleasure or disapprove or by-passed by
the Commission on Appointments.
2. officers of the armed forces of the Philippines
from the rank of colonel or naval captain
3. other officers whose appointments are vested in
the president by the Constitution.”
The first sentence speaks of specific positions in the
higher echelons of the government that would
require the concurrence of the Commission on
Appointments. All other appointments not falling under
the enumeration need not pass through said
Commission.

Issue: WON the ad interim appointments of Benipayo, COMMISSION ON APPOINTMENTS – An office created
Borra and Tuason issued by the president amounts to a by the Constitution; independent from Congress
temporary appointment. although some members may be members of Congress
at the same time.
Held: NO. An ad interim appointment is a
permanent appointment because it takes effect
immediately and can no longer be withdrawn by the “… officers whose appointments are vested in the
President once appointee has qualified into office. The president in the constitution”
fact that it is subject to confirmation by the CA
does not alter the permanent character. The Q: Who are the officers whose appointments require the
constitution makes an ad interim appointment concurrence of the Commission on Appointments?
permanent in character by making it effective until 1. Those officials
disapproved by the CA or until the next adjournment of mentioned under the 1st sentence of Article 7,
Congress. Section 16;(Department heads)
2. Chairs and the
ʘ AD INTERIM APPOINTMENT – Permanent and commissioners of the independent
irrevocable except as provided by law: Constitutional Commissions (COA, CSC,
COMELEC);
1. Disapproved of ad interim appointment 3. The appointments
by the CA of the members of the Judicial and Bar
2. Adjournment of Congress without the Council (Article XI, Section 9) EXCEPT the ex-
CA acting on the appointment. officio members, i.e. Secretary of DOJ;
4. Article 18, Section 7
ʘ TEMPORARY APPOINTMENT – Can be withdrawn or of the Constitution, the appointment to the
revoked at the pleasure of the appointing power; position of sectoral representatives in
appointee does not enjoy security of tenure; prohibited congress.
by constitution in the 3 independent Consitution 5. Members of the
Commissions including COMELEC regional consultative commission –
Article 10, Section 18
* Benipayo, et. al. were not appointed or designated in a 6. All other offices of
temporary or acting capacity the government whose appointments are not
otherwise provided for by law or when the law is
silent as to who the appointing officer is.
Bautista v. Salonga
(172 SCRA 160)
REGULAR APPOINTMENTS
The matter of the appointment of the chair
and the commissioners of the Commission on a. Regular Appointment
Human Rights need not be subject to the
concurrence of Commission on Appointments. In Under Article VII, Section 16(1) of the Constitution,
fact, such appointment issued by the President to it is one issued when Congress is in session. This
CHR Chairman Mary Conception-Bautista is already a does not take effect immediately (unlike ad interim
complete action. It is already an effective valid that is brought about by present urgency). There is
appointment. It is an appointment solely for the a process. Strictly speaking, there is yet no
president to take without the participation of appointment to speak of unless it is acted upon by
Commission on Appointments. the Commission on Appointments.(unlike in ad
interim that takes effect immediately)
Article VII, Section 16 of the 1987 Constitution –
“The president shall nominate and with the consent of Three stages:
the Commission on Appointments, appoint 1. Nomination by the President;
2. Submission to the Commission on Appointments
1. the heads and officers of the executive for action and concurrence;
department

66 | P a g e
 3. On the basis of this concurrence, issuance of the
appointment by the President.
There are 4 groups of officers whom the President shall
appoint:
First, the heads of the executive departments,
ambassadors, other public ministers and consuls, officers
of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are
vested in him in the Constitution. (This group is
appointed with the consent of the Commission on
Appointments. The "other officers" referred to are the
regular members of the Judicial and Bar Council, the
Chairman and members of the CSC, COA and COMELEC,
and the members of the Regional Consultative
Commission). The appointment of Sectoral
Representative, under Sec. 7, Art. XVlll of the
Constitution, is with the consent of the Commission on
Appointments (Quintos Deles vs. Commission on
Appointments, 177 SCRA 259).
Second, all other officers of the Government whose
appointments are not otherwise provided for by
law.
Third, those whom the President may be authorized by
law to appoint.
Fourth, officers lower in rank whose appointments the
Congress may by law vest in the President alone.
(Sarmiento vs. Mison, 156 SCRA 549)
The President appoints the first group of officers
with the consent of the Commission on Appointments.
The President appoints the second and third groups of
officers without the consent of the Commission. The
President appoints the third group of officers if the
law is silent on who is the appointing power, or if
the law authorizing the head of a department, agency,
commission, or board to appoint is declared
unconstitutional.
Anent the second group of officers, where there
are offices which have to be filled but the law does not
provide the process for filling them, the
Constitution recognizes the power of the President
to fill the office by appointment. There is no
incompatibility between the President’s power of
supervision over local governments and autonomous
regions, and the power granted to the President, within
the specific confines of RA 10153, to appoint OICs (Kida
vs. Senate; Mapupuno vs. Brilliantes; Lagman vs. Ochoa,
02/28/12)
Congress cannot by law expand the
confirmation powers of the Commission on
Appointments and require appointment of other
government officials not expressly mentioned in
the first sentence of Sec. 16, Art. Vll (Tarrosa vs.
Singson, 232 SCRA 555; Calderon vs. Carale, 208 SCRA
254).
All other appointments by the President, such as the
appointments of a bureau head (Sarmiento vs.
Mison), Central Bank Governor (Tarrosa vs. Singson),
Chairman and members of the Commission on Human
Rights (Baustista vs. Salonga), and Chairman and
members of the NLRC (Calderon vs. Carale, 208 SCRA
254), are to be made without the participation of
the Commission on Appointments.
In Manalo vs. Sistoza (312 SCRA 239), the Court ruled
as unconstitutional Sections 26 and 31 of RA 6975 (as
amended by RA 8551) [which created the Department of
Interior and Local Government] providing that senior
officers of the Philippine National Police from Senior
Superintendent, Chief Superintendent, Deputy Director
General to Director General or Chief of PNP shall be
appointed by the President subject to confirmation by
the Commission on Appointments. These police officers
are not among the public officials whose appointments
are required to be confirmed by the first sentence of
Article Vll, Section 16 (2002 BQ).
Congress, through a law, cannot impose on the
President the obligation to appoint automatically
the undersecretary as her temporary alter ego. An
alter ego, whether temporary or permanent, holds a
position of great trust and confidence (Pimentel vs.
Ermita, 472 SCRA 589).
Quintos Deles v. Commission on Appointment
(177 SCRA 259)
Ptr Quintos – Deles and three (3) others were appointed
sectoral representatives by Pres. Aquino pursuant
to art. VII, Sec. 16, par. 2 and Art. XVIII, sec. 7 of the
constitution.
ʘ Said appointees were not able to take their oaths and
discharge their duties due to the opposition of some
congressmen – members of the CA who insisted that the
sectoral representative appointments must first be
confirmed by CA
ʘ Ptr. contended that her appointment as sectoral
representative for women does not require confirmation
by the CA to qualify her to take her seat in the house of
representative
Issue: WON the appointment of a sectoral
representative by the pres. needs the CA confirmation
Held: YES, [SECTORAL REPRESENTATIVES] it needs
confirmation. Appointments to offices mentioned in the
first sentence of Sec. 16, Art. VII of the constitution
require confirmation by the CA. These are:
• Heads of the executive departments
• Ambassadors
• Other public ministers and consuls
• Offices of the AFP from the rank of Colonel
or Naval Captain
• Other offices whose appointments are
vested in the Pres. In the constitution
Since the seats reserved for sectoral
representatives may be filled by appointment by the
President by express provision of Sec. 7, Art. XVIII of
the constitution it is clear that sectoral representatives to
the house of representative are among the “other
67 | P a g e
officers whose appointments are vested in the
President in this constitution” referred to in the first
sentence of Sec. 16, Art. VII.
Nevertheless, these are appointments vested in
the President in the constitution which, by express
mandate of the constitution, require no confirmation
such as appointment of members of the SC and
judges of lower courts, and the Ombudsman and
his deputies. No such exemption from confirmation had
been extended to appointments of sectoral
representatives in the constitution.
The President, in a letter had expressly
submitted ptr’s appointment for confirmation by the CA
considering that congress had adjourned without
respondent CA having acted on ptr’s appointment, said
appointment/nomination had become moot and
academic pursuant to Sec. 23 of the Rules of CA and
unless resubmitted shall not again be considered by the
CA
Sarmiento v. Mison
(156 SCRA 549)
FACTS:
Ptrs, who are taxpayers, lawyers, members of the IBP
and professors of constitution law, seek to enjoin:
1) Respondent Mison from performing
functions of the Office of the
Commissioner of the Bureau of
Customs and
2) Respondent Carague, as Secretary of
Department of Budget, from effecting
disbursements in payments of Mison’s
salaries and employments, on the
ground that Mison’s appointment is
unconstitutional.
ʘ Ptrs contended that the appointment is void by reason
of its not having been confirmed by CA
Issue: WON the appointment of Mison as Commissioner
of the Bureau of Customs needs CA confirmation.
Held: NO, it did not. The position of the Commissioner
of the Bureau of Customs (a bureau head) is not one of
those within the first group of appointments where
the consent of the CA is required.
While the 1935 constitution includes “heads of
bureaus” among those offices whose appointments need
the consent of the CA, the 1987 constitution, on the
other hand, deliberately included the position of “heads
of bureaus” from appointments that need the
confirmation of the CA.
Also, in Sec. 16, Art. VII of the 1987
constitution, these are offices whose appointments
require no confirmation by the CA even if such offices
may be higher in rank, compared to some offices whose
appointments have to be confirmed by the CA under the
first sentence of same provision. Thus appointment of
the Central Bank Governor requires no
confirmation by the CA even if he is higher in rank
than a colonel of the AFP or a consul in the Consular
Service.
Tarrosa v. Singson
(232 SCRA 555)
FACTS:
Ptrs, who are taxpayers, lawyers, members of the IBP
and professors of constitution law, seek to enjoin:
1. Respondent Mison from performing functions of
the Office of the Commissioner of the Bureau of
Customs and
3) Respondent Carague, as Secretary of
Department of Budget, from effecting disbursements in
payments of Mison’s salaries and employments, on the
ground that Mison’s appointment is unconstitutional.
ʘ Ptrs contended that the appointment is void by reason
of its not having been confirmed by CA
Issue: WON the appointment of Mison as Commissioner
of the Bureau of Customs needs CA confirmation.
Held: NO, it did not. The position of the
Commissioner of the Bureau of Customs (a bureau
head) is not one of those within the first group of
appointments where the consent of the CA is required.
While the 1935 constitution includes “heads of
bureaus” among those offices whose appointments need
the consent of the CA, the 1987 constitution, on the
other hand, deliberately included the position of “heads
of bureaus” from appointments that need the
confirmation of the CA.
Also, in Sec. 16, Art. VII of the 1987
constitution, these are offices whose appointments
require no confirmation by the CA even if such offices
may be higher in rank, compared to some offices whose
appointments have to be confirmed by the CA under the
first sentence of same provision. Thus appointment of
the Central Bank Governor requires no confirmation by
the CA even if he is higher in rank than a colonel of the
AFP or a consul in the Consular Service.
Calderon v. Carale
(208 SCRA 254)
Appointments to the positions of labor arbiter and
commissioner in the NLRC do not need the
concurrence of the Commission on Appointment,
not being one of those enumerated under Art VII,
Section 16 of the Constitution
Manalo v. Sistoza
(312 SCRA 239)
The Court ruled as unconstitutional
Sections 26 and 31 of RA 6975, as amended by RA
8551, which created the DILG providing that senior
68 | P a g e
officers of the PNP from Senior Superintendent, Chief
Superintendent, Deputy Director General to Director
General or Chief of PNP shall be appointed by the
President subject to confirmation by the
Commission on Appointments. These police
officers are not among the public officials whose
appointments are required to be confirmed by the
first sentence of Article VII, Section 16.
De Castro v. JBC
(17 Mar 2010)
Chief Justice Puno retired from the Supreme
Court on May 10, 2010 upon reaching the compulsory
retirement age of 70. Section 4 (1), Article VIII (Judicial
Department) of the Constitution provides that any
vacancy in the Supreme Court shall be filled within
90 days from the occurrence thereof. However, Sec.
15, Article VII (Executive Department) of the
Constitution prohibits the President from making
appointments two (2) months before the next
presidential election and up to the end of her term,
except appointments to executive positions when
continued vacancies therein will prejudice public
service or endanger public safety. Does the
prohibition apply to appointment in the Supreme Court?
Held: No. The framers did not intend to extend
the prohibition in Section 15, Article VII to the
appointment of Members of the Supreme Court.
Had they intended to, they could have easily and
surely written the prohibition made explicit in Section
15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article
VIII itself, probably in Section 4 (1), Article VIII. That
such specification was not done only reveals that the
prohibition against the President or Acting President
making appointments within two months before the next
presidential elections and up to the end of the
President’s or Acting President’s term does not refer to
the Members of the Supreme Court. The express intent
of the framers is to enshrine in the Constitution, a
command [to the President] to fill up any vacancy
therein within 90 days from its occurrence. The
President’s failure to do so will be a clear disobedience to
the Constitution.
In Re: Villanueva
(298 SCRA 408)
FACTS:
Villanueva was appointed on 30 March 1998 by
the President as presiding judge of the Regional
Trial Court, Bago City. He took his oath on May 14,
1998. However, May 8, 1998 was presidential elections
and Sec. 15 of Art. VII of the Constitution prohibits the
President from making appointments 2 months before
the next presidential elections and up to the end of his
term. Also, Sec. 9 of Art. VIII states that vacancies in
lower courts shall be filled by the President within 90
days from the submission of the list of at least 3
nominees by the Judicial and Bar Council, while Sec. 4 of
the same Article provides that the President shall fill in
vacancies in the Supreme Court within 90 days from
their occurrence. Is Villanueva’s appointment valid?
Held: It is null and void. Two months immediately
before the next presidential elections and up to the end
of his term, the President is not required or allowed to
make appointments. Under Sec. 4 and Sec. 9 of Art.
VIII, the President is required to fill vacancies in the
judiciary within the time frames provided unless it is
prohibited by Sec. 15, Art. VII. The prohibition on
appointments comes into effect only every six years.
The prevention of vote-buying through appointments and
similar evils outweigh the need of avoiding delays in
filling up vacancies or the disposition of cases.
Temporary vacancies follow the period of the ban, while
prohibited appointments are long lasting in their effects.
Rufino v. Endriga
(496 SCRA 16)
Then Pres. Marcos issued an EO creating CCP
governed by seven (7) members of the Board of trustees
to preserve and promote Philippine culture. During Pres.
Ramos term, the CCP Board included the Endriga group.
Then, during Pres. Estrada’s term, he appointed 7 new
trustees for term of 4 years to replace the Endriga
group.
ʘ Endriga-group petition for quo warranto → Sec. 6 (b)
of PD 15: unconscious in the CCP Board shall be filled by
election by a vote of a majority of the trustees and in
case only 1 trustee survives, vacancies shall be filled by
the surviving trusteein consultation with the ranking
officers of the CCP. It is only when the CCP Board is
entirely vacant may president fill such vacancies.
When pres. Estrada appointed the Rufino group, only 1
seat was vacant.
ʘ Rufino Group → “Law could only delegate to the CCP
Board power to appoint officers(never in rank than the
trustees of the board). Law may not validly confer on the
CCP trustees, for the latter are officers of equal rank and
not of cover rank.
ʘ Sec. 6 (b) of PD 15 should be declared
unconstitutional being repugnant to Sec. 16, Art. VII of
the constitution allowing appointment of Officers lower in
rank than the appointing power.
Issue: WON President has the power to appoint
members of the CCP Board of Trustess
Held: YES. The “inferior or lower in rank officers”
referred to in Sec. 16, Art. VII are the subordinates of
the heads of departments agencies, commissions or
boards who are vested by law with the power to appoint
– this excludes a situation where appointing officer
appoints an officer equal in rank as him.
ʘ CCP is part of the executive branch, thus President
exercises control over the CCP.
ʘ Sec. 6 (b) and (c) of PD 15 is unconstitutional, violates
Sec. 16, Art. VII of 1987 constitution.
69 | P a g e

ʘ No law can cut off the Presidents control over the CCP
in the guise of insulating the CCP from Presidents
influence. By stating that the President shall have control
of all the executive offices, the 1987 constitution
empowers the President not only to influence but
even to control all offices in the executive branch.
NOTES:
Under Sec. 16, Art. VII of the Constitution, there
is a fourth group of lower-ranked officers whose
appointments Congress may by law vest in the
heads of departments, agencies, commissions, or
boards. The clear intent is that these inferior or
lower in rank officers are the subordinates of the
heads of departments, agencies, commissions, or
boards who are vested by law with the power to appoint
– this excludes a situation where the appointing officer
appoints an officer equal in rank as him. The law may
not also authorize officers other than the heads of the
agency, commission, or their fellow trustees for the
effect is the same, which is to fill vacancies in the CCP
Board. A statute cannot circumvent the constitutional
limitations on the power to appoint by filling vacancies in
a public office through election by the co-workers in that
office (ibid).
Since the President exercises control over “all the
executive departments, bureaus, and offices,” the
President necessarily exercises control over the
CCP which is an office of the Executive Branch. Sec.
3 of PD 15 stating that the CCP “shall enjoy autonomy of
policy and operation” may give the CCP Board a free
hand in initiating and formulating policies and
undertaking activities, but ultimately these policies
and activities are all subject to the President’s
power and control.
Thus, the Chairman of the Cultural Center of the
Philippines (CCP) board is the head of the CCP who may
be vested by law, under Sec. 16, Art. VII of the
Constitution, with the power to appoint lower-ranked
officers of the CCP (Rufino vs.Endriga, 496 SCRA 16).
Dapat sa HEAD(chairman); dili sa board!!!!
Insofar as it authorizes the trustees of the CCP
Board to elect their co-trustees, Section 6(b) and
(c) of PD 15 is unconstitutional because it violates
Sec. 16, Art. VII of the Constitution.
MODES OF TERMINATING OFFICIAL RELATIONS
1. Abandonment of an office
2. Abolition of office
3. Acceptance of another office incompatible with
the first
4. Conviction of a crime
5. Death
6. Expiration of term or tenure
7. Failure to assume elective office within six (6)
months from proclamation
8. Filing of Certificate of Candidacy
9. Impeachment
10. Prescription of the right to office
11. Reaching the age limit
12. Recall
13. Removal
14. Resignation
1. ABOLITION OF OFFICE
Abolition of Office neither means removal or
separation from office and is not covered by the
protection of the security of tenure in the
Constitution. This principle however carries with it a
caveat. The abolition must be done in good faith
(Gingson vs. Murcia, 08 February 1988), not for
political or personal reasons, or in order to
circumvent the constitutional security of tenure of
civil service employees (Canonizado vs. Aguirre, 323
SCRA 312). Abolition which merely changes the
nomenclature(name) of positions is invalid and
does not result in the removal of the incumbent
(Dario vs. Mison, 176 SCRA 84). The renaming and
restructuring of the PGH and its component units
cannot give rise to a valid and bona fide abolition
of the position of PGH Director; this is because
where the abolished office and the offices created in its
place have similar functions, the abolition lacks
good faith (Guerrero vs. Arizabal, 186 SCRA 108).
A recognized cause for termination of employment of a
government employee is the abolition by law of his
office as a result of reorganization carried out by
reasons of economy or to remove redundancy of
functions, or clear and explicit constitutional mandate
for such termination of employment (Reyes vs. Drilon).
The removal of petitioners pursuant to RA 6715 – which
declared vacant the positions of the Commissioners,
Executive Labor Arbiters and Labor Arbiters of the NLRC
and provided for the removal of the incumbents upon the
appointment and qualification of their successors – was
unconstitutional; RA 6715 did not expressly or impliedly
abolish the offices of petitioners, there being no
irreconcilable inconsistency in the nature, duties
and functions of the petitioners’ offices under the
old law and the new law (Mayor vs. Macaraeg, 194
SCRA 672). The change in the NLRC’s nature -- that is,
the NLRC prior to the passage of the amendatory law
was considered an integral part of the DOLE, while the
new law (RA 6715) changed that by declaring the NLRC
attached to the DOLE for program coordination only –
was not sufficient to justify a conclusion that the
new law abolished the offices of the labor
commissioners (supra).
Requisites:
1. Made in good faith
2. With clear intent to do away with the office
3. Must not be implemented in a manner contrary
to law
Valid abolition:
70 | P a g e
 1. By reason of economy
2. By reason of redundancy of functions where
there are already two or more positions performing
the same duties or that there is an overlapping
functions
3. It is within the legal competence of the city
council to create, consolidate and reorganize
city offices and positions wholly supported by local
funds unless there is no showing that legitimate
structural changes have been made
Invalid abolition:
1. For personal or political reasons
2. Constitutional offices with special immunity
as regards salary and nature, cannot be abolished
by Congress
3. No law shall be passed reorganizing the judiciary
when it undermines the security of tenure of its
members (Article VIII, Section 2 of the
Constitution)
4.
Dario v. Mison
(176 SCRA 84)
Reorganization is valid when done in good faith. A
reorganization in good faith if it is for purpose of
economy or make bureaucracy more efficient. If so,
there is no dismissal since the position itself
ceases to exist. But if the abolition is for political
reason or to defeat security of tenure, or there is mere
change of nomenclature of positions, the abolition is
void. Here, no actual reorganization took place, i.e.
reduction of personnel, consolidation of offices or
abolition for the purpose of economy, or redundancy of
functions, but a simple revamp of personnel.
You have here the Deputy Customs
Commissioner Dario who was separated from service
on the basis of the regimentation effected by the
President thru the Bureau of Customs Commissioner.
Here, there were about 394 employees who were
separated. However, in place of these 394 positions
abolished, about 532 new employees were
appointed. Abolition which merely changes the
nomenclature of positions is invalid and does not
result in the removal of the incumbent. So clearly,
this would negate a bona fide regimentation or a valid
abolition. Clearly, those officers who were separated
by reason of this regimentation effected in the
Bureau of Customs were illegally dismissed from
the service in violation of their security of tenure.
Gingson v. Murcia
(08 Feb 1988)
Facts: You have here the respondent municipality of
Murcia, Negros Occidental. There was a supposed
regimentation/reorganization effected by that
municipality and in the process, petitioner Angel
Gingson, municipal dentist, was separated from
the service. The reason in abolishing the position of
municipal dentist was allegedly due to the lack of
municipal funds. But what happened here was that
in fact, there were new positions created and the
municipal budget increased and not decreased.
Issue: WON the abolition, based on the Municipalities
state of finances, is valid.
Held: NO. It is true that abolition of office neither
means removal nor separation from office and is not
covered by the protection of security. However, such
abolition must be done in good faith. In this case, good
faith is absent.
The court is convinced that the municipality was
financially capable of continued support to petitioner in
office. At that time, it had no excuse to effect the
questioned dismissal. It was also found out that the
municipality had, in the same period, approved
salary increases to some 31 employees and
extended appointments to 6 employees.
Certainly, this negates whatever claim of good
faith. So clearly, this violated the security of tenure of
this officer. Indeed, there was illegal dismissal. Petitioner
ought to be reinstated and if his position is no longer
available, then there must be payment of back salaries
during the period that he was deprived of the position.
But in no case shall the recovery of backwages
exceed more than 5 years.
Guerrero v. Arizabal
(186 SCRA 109)
Facts:
 Pursuant to Proclamation No. 3 by Pres.
Aquino, EO 128 was enacted.
 Sec. 35 d of the EO provides for the
abolition of Science Promotion Institute,
a regular line agency of DOST.
 Ptr. Guerrero, Director of SPI, assailed his
termination and seeks reinstatement. He file
the petition on the ground of violation of his
security of tenure.
Issue:
WON the abolition is valid
Held:
NO, it is void. The abolition was void because the
abolished office and the offices created in its place
have similar functions.
There was reorganization, renaming and
reshuffling effected in the Philippine General
Hospital (PGH) and its component units by DOST
Secretary Arizabal. So many positions were
affected, including the position of the PGH
Director Guerrero. In fact the office of the Science
Institute was abolished by reason of this
regimentation. However, in lieu of the abolished
71 | P a g e
 offices, there were new ones created
performing the same functions, duties and
responsibilities. Abolition should not be done for
political or personal reasons or in order to
circumvent he constitutional security of tenure of
civil service employees. So this again would
negate a bona fide regimentation.
Mayor v. Macaraeg
(194 SCRA 672)
Facts: Petitioners in this case assailed the
constitutionality of RA 6715 in so far as it declared
vacant the positions of the Commissioners,
Executive Labor Arbiters and Labor Arbiters of the
NLRC. The said law provided for the removal of the
incumbents upon the appointment and qualification of
their successors.
They claimed violation of their security of tenure. The
substantial distinction between the new law and the old
law is that under the old law, the NLRC is an integral
part of the DOLE; while under RA 6715, the NLRC is now
administratively attached, but not anymore an integral
part of the DOLE. So the question here is whether such
distinction is substantial enough, is there irreconcilable
inconsistency under the new law and under the old law?
Issue: WON the reorganization is valid
Held: NO. the removal of positions was unconstitutional
since RA 6715 did not expressly or impliedly abolish
the offices of the petitioners, there being no
irreconcilable inconsistency in the nature, duties,
functions of the petitioners offices under the old law
and the new law.
There was no such irreconcilable
inconsistency under the old law and the new law. In
other words, there was no valid reason for the
abolition of their offices. In fact the new offices
performed the same duties and responsibilities.
The questioned provision of RA 6715 is
unconstitutional. To have a badge of good faith, the
law itself must provide in clear express terms, the
intention of the law to effect a bona fide
regimentation. It cannot be implied from the law. So
the intention to abolish must be clear and it is also be
for a valid reason, let say, by reason of economy.
That under RA 6715, the NLRC is now simply
administratively attached and not anymore integral
part of DOLE is not a sufficient justification for the
abolition of the positions occupied by petitioners.
Clearly there is here a violation of their security of
tenure.
Canonizado v. Aguirre
(323 SCRA 313)
The main issue is the constitutionality of RA
8551 (Phil National Reform and Reorganization Act of
1998) by virtue of which petitioners Canonizado et al,
who were all members of the NAPOLCOM were
separated from office. Petitioners claim that such law
violates their constitutional right to security of tenure.
Public respondents assert that the RA reorganized the
NAPOLCOM resulting in the abolition of petitioners’
offices. Public respondents insist that Sec. 8 of RA 8551
which provides that the terms of the current
Commissioners (herein petitioners) are deemed expired
discloses the legislative intent to impliedly abolish the
NAPOLCOM created under RA 6975 pursuant to a bona
fide reorganization. They cite the various changes
introduced by the new law, namely: while NAPOLCOM
was collegial body within the DILG under RA 6975, it is
made an agency attached to the DOLE for program
coordination only; expansion of the membership of
the NAPOLCOM from four to five Commissioners by
adding the PNP Chief as ex-officio member; three of the
regular Commissioners shall come from the civilian
sector while the fourth from the law enforcement sector.
The Court however finds that the revisions do not
constitute such essential changes in the nature of
the NAPOLCOM as to result in an implied abolition
of such office. Its organizational structure, as well as
its powers and duties, remains essentially the
same and that, except for the addition of the PNP
Chief, the composition of the NAPOLCOM is also
identical under the two laws. There has been no
revision in its line of control, authority and
responsibility, neither has there been a reduction
in its membership, nor a consolidation of abolition
of the offices constituting the same. Also, under both
laws, the Secretary of the Department shall act as ex-
officio Chairman of the Commission and the Vice-
Chairman shall be one of the Commissioners designated
by the President. It is apparent that RA 8551 effected a
reorganization of the PNP, not of the NAPOLCOM.
Ruling: Section 8 of RA 8551 is unconstitutional for
being in violation of the petitioners’ right to
security of tenure. The removal from office of the
incumbent petitioners (petitioners herein)[NAPOLCOM
MEMBERS] as a result of the application of such
unconstitutional provision and the appointment of new
Commissioners in their stead is void. Petitioners are
entitled to reinstatement and to the payment of full
backwages reckoned from the date they were removed
from office.
Ruling on petitioners’ MR: The inevitable consequence of
the Court’s declaration that Section 8 of RA 8551 is
unconstitutional is that all acts done pursuant to such
provision shall be null and void, including the
removal of petitioners and Adiong from their
positions in the NAPOLCOM and the appointment of
new commissioners in their stead. There can be no
valid appointment to a non-vacant position.
Accordingly, Adiong’s appointment on 11 March 1998 for
a term of two years, pursuant to Section 8 thereof, is
void. However, he should be permitted to enjoy the
remainder of his term under RA 6975. Thus, all the
Commissioners appointed under RA 8551 (Adiong,
Cairme, Magahum and Factoran) should be
removed from office, in order to give way to the
reinstatement petitioners, including Adiong, although
72 | P a g e
under his original appointment under RA 6975.
(Canonizado vs. Aguirre, 351 SCRA 660)
2. INCOMPATIBILITY OF OFFICE
ACCEPTANCE OF ANOTHER OFFICE INCOMPATIBLE
WITH THE FIRST - The concept of INCOMPATIBILITY
OF PUBLIC OFFICES. When do you say that two
offices are incompatible? Not merely the physical
impossibility of the same public officer in holding two or
more offices, that it is impossible for an officer to
perform the duties at the place and same time. But more
importantly, that which proceeds from the nature and
relations of the two positions to each other as to
give rise to contrariety and antagonism should one
person attempt to faithfully and impartially discharge the
duties of one toward the incumbent of the other
(Canonizado v Aguirre).
GENERAL RULE: Acceptance of an incompatible
office ipso facto vacates the first office and the
officer’s title is thereby terminated without any act
or proceeding.
Example: A Provincial Attorney or City Legal Officer and
at the same time holding the position of a Provincial or
City Prosecutor. Certainly, these are antagonistic offices.
For one, the City Attorney is an officer of the LGU while
the prosecutor is under the DOJ in the National
Government as he acts in behalf of the people. But a
more telling illustration here is, let us say, the positions
of accountant and auditor. These positions cannot be
occupied by the same officer.
Q: What principle applies here?
A: The principle of check and balance.
EXCEPTION: Where the public officer is authorized by
law to accept the other office, such as an ex-officio
function, ex. Secretary of Justice who is, by express
provision of the Constitution, a member of the Judicial
and Bar Council; or where the second position belongs to
a separate or different sovereignty , such as in an
honorary office.
Below, the presidential family???
Under Article VII, Section 13 of the Constitution, “The
President, Vice-President, Cabinet Members and their
deputies and assistants, etc. may hold any other office
or employment only when specifically authorized by
the Constitution itself.” The provision speaks of the
INCOMPATIBLE OFFICE. So these officials may hold
any other position or employment in the government or
in any of its instrumentalities including GOCCs, during
his term without forfeiting his seat. In other words,
he may be allowed to assume office. There is no
prohibition if he accepts the second position so long as
he relinquishes his seat as such official. Also, “The
President, Vice-President and members of the official
family under the Office of the President can only
occupy this other public office if allowed by the
constitution.”
There are 3 instances, where the Constitution allows
them:
1) Article 8, Section 8, the DOJ Secretary as an
ex-officio member of the Judicial Bar
Council.
2) Article 7, Section 3, the Vice-President who is
appointed as a member of the Cabinet;
3) Article 12, Section 9, the President is also the
Head of Economic and Planning Agency.
However, even in those cases permitted by the
Constitution, under Article IX-B, Section 8, the official is
still “prohibited to occupy an office, which has been
created, or emoluments thereof increased during
as such Congressman or Senator.” He is not entitled
to receive additional double compensation. Why? He is
already paid for his principal position, let us say, as
Cabinet Secretary. So the prohibition against holding
dual or multiple offices cannot be interpreted as applying
to posts occupied by Cabinet Secretaries in an ex-officio
capacity without additional compensation as provided by
law and as required by the primary functions of this
office. This pertains to a FORBIDDEN OFFICE.
Q: Let us say, a senator has a 3-year term, and the
Senator during his second year in office resigns.
Is he qualified to accept the office as Commissioner
which has been created in his 3 rd year of such term?
Take note, when the office of the Commissioner was
created, he was no longer a Senator or
Representative, so does it mean that he is qualified,
does it mean there is no prohibition for him to accept
such position?
A: No. The disqualification applies for the entire
duration of the 3-year term. Even if at time of the
creation of office he was no longer a Senator or
Republic, nor was the salary of that office increased,
the prohibition still applies. The Congressman or
Senator is also prohibited from appearing
personally as counsel in any Court of Justice or
as a counsel in an Electoral Tribunal or before any
Quasi-Judicial or Administrative body. Neither is he
allowed to have direct or indirect financial interest in
any transaction or contract with a government office,
or any franchise or special privileges being granted
by the government. He is not likewise, allowed to
intervene in any matter pending before the
government office in order for the purpose of
obtaining some pecuniary gain or benefits, or
where he may be required to act in his official in his
official capacity as such member of the House of
Representatives.
Q: What about local elective officials?
GENERAL RULE: Under Article IX-B, Section 7: A
local elective officer “is not eligible for any
appointment or designation in any capacity or
position to any public office during his tenure of office.”
73 | P a g e
Example: A city mayor, with a term of 3 years was
appointed during his second year, as Presidential
Adviser, is this valid? Certainly NOT. But it is valid
appointment if, although still within the 3-year term, he
accepts the position as Presidential adviser when
he was no longer the local chief executive at the
time of such appointment, i.e. he resigns during his 3 rd
year.
Canonizado case, supra
Commissioner Canonizado accepted the
second position, the position of Inspector General of
the Internal Affairs (IAs). Was there antagonism
between the positions of Commissioner and
Inspector General? Take note that there is
incompatibility of offices between the positions of
Commissioner of NAPOLCOM and the position of
Internal Affairs Services General. Why? Because the
law itself provides that no member of the
NAPOLCOM commission should be sitting as a
member of a committee tasked to oversee the
promotion or appointment of the members of
the PNP. The law likewise mandates that the
NAPOLCOM exercises administrative supervision over
PNP. So there is incompatibility but this does not
apply to Commissioner Canonizado because at no
point in time did he occupy these two positions
simultaneously. When he accepted the position of
Inspector General, he already reliquinshed his
position as Chief of the NAPOLCOM.
Q: In the bar, a similar situation was asked where a
provincial governor was appointed by the
President as the concurrent adviser of the
Presidential Assistant for political affairs in
the Office of the President with additional
compensation. Is this a valid appointment? We
have our own Digong who was appointed by the
President as the Presidential Adviser for Anti-
terrorism. Is this valid?
A: Clearly under Article IX-B, Section 7, no elective
official shall be eligible for any appointment in any
capacity, to any public office, even if such position as
Presidential Adviser, does not pay any from public funds.
Of course, Digong may assume, but no formal
appointment has been extended, it was mere
verbal directive of the President. Nonetheless, there
is this clear provision in the Constitution not allowing any
elective official from holding any other position unless it
is in an ex-officio capacity. The latter would be a
different matter because it would mean merely on
account of or required by his principal position as Chief
of the LGU.
Public Interest Center Inc. vs. Elma , 494SCRA54
Facts:
 Respondent Elma was appointed and took his
oath of office as Chairman of the PCGG.
 During his tenure as PCGG Chairman, he was
appointed Chief Presidential Legal Counsel
(CPLC)
Petitioners:
 Alleged that Elma’s concurrent appointments
as PCGG Chairman and CPLC contravenes
Sec. 13, Art. VII and Sec. 7, par. 2, Art. IX –
B of the constitution.
 Maintained that Respondent Elma was
holding incompatible offices.
Respondents:
 Allege that the strict provision against
holding multiple positions provided under
Sec. 13, Art. VII applies only to heads of
executive departments, their
undersecretaries and assistant secretaries; it
does cover other public officials given the
rank of Secretary, undersecretary and
Assistant Secretary.
 Sec. 7, par. 2, Art. IX-B should be applied in
their case; would allow a public officer to
hold multiple positions if:
1.) The law allows the concurrent
appointment of said official.
2.) Primary functions of either positions
allows such concurrent
appointments.
Issue: WON PCGG Chairman can concurrently hold the
position of CPLC
Held:
Supreme court declares Elma’s concurrent
appointments as PCGG and CPLC as unconstitutional.
 Art. IX-B of the constitution permits an
appointive official to hold more than one
office as long as there is no
incompatibility of the functions in such
offices.
 In this case, an incompatibility exist between
positions of the PCGG Chairman and CPLC.
 CPLC duties include giving independent
and impartial legal advice on the actions
of the heads of various executive
departments.
 PCGG is an agency of the executive
department.
 Thus, the actions of the PCGG Chairman
are subject to the review of the CPLC.
(checks and balance)
 Sec. 13, Art. VII of the constitution is not
applicable to the PCGG Chairman nor to the
CPLC, as neither of them is a secretary,
undersecretary nor an assistant secretary
even if the former may have the same rank
as the latter positions.
74 | P a g e
 Liban vs. Gordon
(593 SCRA 68)
Facts:
 While Respondent Gordon was a member of
the Senate, he was elected Chairman of the
PNRC
Petitioners:
 Claim that in accepting and holding the
position of Chairman of PNRC, Gordon has
automatically forfeited his seat in the Senate
as provided in Sec. 13, Art. VI of the
constitution.
Respondent:
 Contends that PNRC is not a GOCC and that
the prohibition under Sec. 13, Art. VI of the
constitution does not apply in the case since
volunteer service to the PNRC is neither an
office nor employment.
Issue:
WON the office of the PNRC Chairman is a
government office or an office in a GOCC for purposes of
the prohibition in Sec. 13, Art. VI of the constitution.
Held: NO INCOMPATIBLE OFFICE??
The PNRC Chairman is not an official or
employee of the government. The President does
not appoint the Chairman of the PNRC. Neither does
the head of any department, agency, commission or
board appoint the PNRC chairman. Thus, the PNRC
Chairman is not an official or employee of the executive
branch since his appointment does not fall under Sec.
16, Art. VII of the constitution.
The PNRC is not a GOCC but privately –
owned. The vast majority of the PNRC members are
private individuals, including students.
Q: What about the appointive public officer?
GENERAL RULE: The appointive officer, meaning, those
covered by CS Law, rules and regulations, are not
allowed to accept any other position. “No appointive
official shall hold any other office or employment
in any government instrumentality or GOCC.”
EXCEPTION: “Unless otherwise provided by law or
by the primary function of his position or office.”
So if there is such law giving authority to this appointive
officer to hold another government position, there is no
violation of the constitutional provision.
LORENZADA vs. FAJARDO
462 SCRA 1
Facts: Fajardo at that time was already issued an
appointment, as legal officer of the Manila
Settlement Urban Office. So you have here a
government lawyer as a legal officer of the MSU
Office. He likewise accepted employment as member
of the PLEB (People’s Law Enforcement
Employment Board). RA 7965, as amended by RA
8551, created in every city and province this PLEB
which shall have the power to take cognizance
on citizens complaint. The authority in the creation
of the PLEB is by the action of the Sanggunian. He
also accepted cases and appeared in court as a
private counsel. More
than that, he is a member of Lupon or Pangkat of his
Barangay, Brgy. Novaliches proper. So the issue is his
holding of multiple positions.
Held: SC ruled that clearly his acceptance as
member of the PLEB violated Article IX-B, Section 7
because there is no provision of law authorizing
him to accept said employment. Moreso, his
acceptance of private cases where he appeared
in court without proper authority, again is a
violation. The Court imposed a penalty of 6 months
suspension. The Court ruled that to fall within the
prohibition of the statute on the private practice of
law, a lawyer customarily and habitually holds himself
out to the public as engaged in the private practice of
law and at the same time accepting payment for
some services as a legal counsel. So Fajardo is
engaged in the private practice of law.
Now, in so far as his being a member of the Lupon, it
is allowed. Take note of the exception where there is
no violation by provision of law. Under Section
406 of the LGC, a government employee is
permitted to sit as a member of the Lupon or
Pangkat. The other issue raised here is the validity
of his acceptance of honorarium as a member of the
Lupon. Is he allowed?
The GENERAL RULE under Article IX-B, Section 8 of
the Constitution is that, no elective or appointive
officer shall receive additional, double or
indirect compensation unless otherwise
provided by law. Under the LGC, not only is he
allowed to accept membership in the Lupon, but he
is also allowed, at the same time, to receive
additional compensation for such services either
in the form of honorarium or per diem. But again, the
general rule as applied to all officers whether
appointive or elective.
TORRES vs DRILON
273 SCRA 568
This pertains to a provision in RA 7227, known as the
Bases Conversion and Development Act. This refers
to the SBMA. During that time, the Mayor of
Olangapo then was now Senator Richard Gordon.
Section 13 of RA 7227 provided that the incumbent
city mayor of Olangapo shall be the CEO and
Chair of the SBMA. This issue was raised before the
75 | P a g e
court. Gordon argued that under the LGC, Section 94,
he is permitted to occupy this position in an ex-
officio capacity. The court ruled that this
provision is unconstitutional because it violates
Article IX-B Section 7. SC also ruled that Gordon’s
argument is incorrect because nowhere in RA
7227 was it provided that he could occupy such
position in an ex-officio capacity.
CIVIL LIBERTIES UNION vs. EXECUTIVE
SECRETARY
February 22, 1991
President Aquino issued an executive order to a
court dated July 25, 1987 of which Section 3
authorized members of her Cabinet to hold
multiple positions. So at that time, Cabinet
Secretaries earned so much more than their basic
salary. In fact, this practice likewise prevailed during
the time of Marcos. That is why we have
amendments in the constitution because of the
alleged abuses of the Marcoses in appointing those
close to them to offices or positions in government
corporations and these GOCCs became the milking
cows of these associates.
This practice can still be seen up to now, it is still
being practiced. But take note that in reality, there is
no violation of the Constitution if the position
occupied by the Cabinet Secretary is by reason of his
principal position, meaning, because of the intimate
connection between the principal position and the
second office. This is not anymore within the purview
of Article VII, Section 13. Let us say, the Secretary of
Justice. We know that the DOJ has so many offices
and bureaus under it such as the PAO, Bureau of
Parole and etc. These agencies or bureaus have their
own governing board.
CIVIL LIBERTIES UNION V. EXECUTIVE
SECRETARY
Facts:
Petitioner challenged EO no. 284 on the grounds
that it adds exceptions to Sec. 13, Art. VII of the 1987
constitution. Petitioners maintain that EO, in effect,
allows members of the cabinet, their undersecretaries
and asst. secretaries to hold other government offices or
positions in addition to their primary positions and thus
runs counter to Sec. 13, Art. VII.
Issue:
3.) WON EO 284 is unconstitutional
4.) WON respondents are entitled
emoluments for actual services rendered
Held:
1.) YES
2.) Yes. During their tenure in the
questioned positions, respondents may
be considered de facto officers and as
such entitled to emoluments for actual
services rendered. In cases where there is
no de jure, officer, a de facto officer who,
in good faith has had possession of the
office and has discharged their duties
pertaining thereto, is legally entitled to the
emoluments of the office and may in
appropriated action recover the salary, fees
and other compensations attached to the
office
Q: If the DOJ Secretary sits in the Board of these
bureaus, is there a violation of Article VII, Section
13?
A: NO, because he has to. He is required by the
primary functions of his office as the DOJ
Secretary. In order to have effective supervision
and control, he should be made a member of the
governing board of the bureaus under DOJ. This
is similar to the MARINA, the Marine Authority, which
also has a Board of Marines, again as required
by the primary function of the position. The
DOTC Secretary also must be made a member of the
MARINA. The Secretary of Finance also sits in
the Monetary Board in an ex-officio capacity
and can receive additional compensation in the
form of honorarium or per diem. This is not the
prohibition contemplated under Article VII, Section
13. There is in fact a connection between these two
offices as required by law without additional
compensation. And by virtue of the primary functions
of his office, he must be a member of such
commission or board.
Q: How about if Press Secretary being appointed or
designated by the President as a member of the
PAGCOR Board. Is there a connection here, between
the duty of Press Secretary and member of the Board
of PAGCOR?
A: There is no connection whatsoever. In other
words, this would fall within the prohibition under
Article VII, Section 13.
NATIONAL AMNESTY COMMISSION (NAC) vs
COA
Issue: WON the representatives as ex-
officio members of NAC Board, may be allowed
to receive compensation in the performance of
their duties? Who are appointed as ex-officio
members?
Held: Secretaries, deputies or assistants, the
lowest rank being the Assistant Secretary, and
those officers above this position are within the
to coverage of Article 7, Section 13. So, an official
occupying the position below the rank of an
Assistant Secretary is no longer covered. What
provision is he covered? Under Article IX-B Section
7.
But let us say, the ex-officio member of this Board
who holds the rank of at least Assistant Secretary
designates another to be his representative in this
Board and that representative now demands, that
76 | P a g e
 he should be paid for services performed by him in
such capacity. Is this contention correct? No. If
his superior as ex-officio member is not
allowed under the Constitution to receive
such emolument, with more reason should
the agent be not allowed to receive the same.
Why? Certainly, the agent or one who is simply
designated, not even appointed, by have better
rights than principal.
Note: The same ruling is reiterated by the Court in the
cases of dela Cruz vs. COA, 371 SCRA 157 and Betonio v
COA, 425 SCRA 437. These cases involved the
designates or alternates of the ex-officio officers,
members of the National Housing Authority, who
demanded that they should be authorized to
receive extra compensation being the alternate of the
ex-officio members. SC ruled that they cannot have
better rights than their principal.
So we have mentioned the prohibitions:
1. Under Article VII, Section 13 as applicable to
Senators and Congressmen;
2. As applied to the local elective and appointive
official under Article IX-B, Section 7; and
3. As applied to the regular members of the Civil
Service under Article IX-B, Section 8.
DEATH – Death of an incumbent necessarily renders an
office vacant, a public office being personal to him.
EXPIRATION OF TERM - This means that the public
officer holds a fixed term of office. Let us say, the
commissioners serve for a fixed term of 7 years.
TERM v TENURE
1. TERM means the time during which the
officer may claim to hold office as of right,
and fixes the interval after which the several
incumbents shall succeed one another; while
TENURE represents the term during which
the incumbent actually holds the office.
2. The TERM of office is not affected by the
hold-over; while the TENURE may be
shorter than the term for reasons within or
beyond the power of the incumbent (Aparri v CA,
127 SCRA 240).
3. The TERM of office is provided by law, ex.
CHR Chairman - 7 years, without reappointment,
as provided by EO 163; while the TENURE in
office of said cannot be made dependent on
the pleasure of the President, to give the
office the needed independence. Hence, EO 163-
A providing that the tenure of said
Chairman and the members of the CHR shall
be at the pleasure of the President is
unconstitutional (Bautista v Salonga, 172
SCRA 164).
HOLD-OVER DOCTRINE – When applied to a public
officer, this implies that the office has a fixed term and
the incumbent is holding onto the succeeding term.
Absent an express or implied constitutional or statutory
provision to the contrary, an officer is entitled to stay
in office until his successor is appointed or chosen
and has qualified (Lecaroz v Sandiganbayan, 305
SCRA 396).
For the effective operation of the rotational scheme of
the Constitutional Commissions, the first Commissioner
should start on a common date and any vacancy before
the expiration of the term should be filled only for the
unexpired balance of the term (Republic v Imperial, 96
Phil 770). The terms of the first Chairmen and
Commissioners of the Cosntitutional Commission under
the 1987 Constitution must start on a common date,
that is, February 2, 1987, the date of the
adoption of the 1987 Constitution, irrespective of the
variations in the dates of appointments and qualifications
of the appointees. Hence, the 7-year term of office of
CSC Commissioner Gaminde, who was appointed on
June 11, 1993, expired on February 2, 1999, since the
term of her predecessor ended on February 2, 1992. In
the same manner, the term of her successor must be
deemed to start on February 2, 1999 and will expire
on February 2, 2006, notwithstanding that
Gaminde served as de facto officer until February
2, 2000 (Gaminde v COA, December 13, 2000).
Q: May a Department Secretary hold over?
A: No, because he holds a position of confidence.
In other words, at any time, he may be replaced
or he may be removed. No application of the hold
over principle.
Q: So when do you apply this principle?
A: Unless there is a constitutional or statutory
provision to the contrary, a public officer may
hold onto the office until his succession is
chosen and qualified. But if the hold over of the
public officer is without the authority of law, then he
may be held criminally liable under Article 237
which carries a penalty of prision correcional in its
minimum period. And that is for prolonging the
performance of duties.
FAILURE TO ASSUME OFFICE – Under BP 881, Section
11, “The office of any official elected who fails or
refuses to take his oath of office within six (6)
months from his proclamation shall be
considered vacant, unless said failure is for cause
or causes beyond his control.”
FILING OF CERTIFICATE OF CANDIDACY – Under BP
881, Section 66, “Any person holding a public appointive
office or position, including active members of the AFP,
the officers and employees in GOCCs, shall be
considered ipso facto resigned from office upon his filing
of the Certificate of Candidacy.”
Amended naman ata ni???
77 | P a g e

a. Resignation
RESIGNATION – The act of giving up or the act of an
officer by which he declines his office and
renounces the further right to use it.
CLUE: Declines & renounces
This implies an expression of the incumbent in some
form, express or implied, of the intention to
surrender, renounce and relinquish the office and
its acceptance by competent and lawful authority. This
should not be used either as an escape or as an
easy way out to evade administrative liability by
an official facing administrative sanction. The
mere expedient of resigning from the service will not
extricate such official from the consequences of his acts
(Igoy v Soriano, 367 SCRA 70).
Requisites:
1. Intention to relinquish or surrender the
position;
2. Relinquishment must be made voluntarily; and
3. Acceptance by the competent authority of
such resignation.
It follows that if the authorized officer to act on the
resignation has not acted on the same and the
public officer already separated himself from his
office (there is now abandonment of his
office), said officer becomes criminally liable
under Article 238 of RPC which provides for a
penalty of arresto mayor. So you cannot simply
submit a resignation and consider the same as
already valid. You must wait for the
approval/acceptance of such
resignation, otherwise you will be held criminally
liable for abandonment of office. On the other hand, if
the resignation has been accepted, it can
no longer be revoked unless the withdrawal is
with the consent of the accepting authority.
Section 82 of the LGC provides for the various
authorities who have the power to act on a resignation:
“A letter by the governor, vice-governor and the
members of Sangguniang Panlalawigan (Provincial
Board) or of the members of Sangguniang Panlungsod of
highly-urbanized cities, and the Barangay elective
officials should be given to the Office of the
President. For members of the Sangguniang Bayan,
the resignation must be submitted to the
Sangguniang Bayan.”
A COURTESY RESIGNATION cannot be properly
interpreted as resignation in the legal sense for it is not
necessarily a reflection of a public official’s
intention to surrender his position. Rather, it
manifests his submission to the will of the political
authority and the appointing power (Ortiz v COMELEC).
Commissioner Ortiz vs. COMELEC
28 June 1988”courtesy resignation”
Facts: President Aquino issued an order requiring all
the accountable high-ranking officials including the
members of the Constitutional Commissions and SC
justices to submit their resignation letters. The memo
was worded as "...considering that we now have a
revolutionary government, you are required to
submit your resignation letters..." By virtue of
such directive, COMELEC Commissioner Ortiz
submitted his letter. Ortiz claimed retirement
benefits but was denied because he did not complete
his full term of office.
Held: There was no abolition of office. Neither was
there a resignation. The submission of the
resignation letter was simply in deference to the
will of the political authority (the directive). Was
the directive valid? Yes, because at the time, the
government was revolutionary. There is no such thing
as security of tenure in a revolutionary government.
Anything goes and you must follow. How then would
you treat this separation of Ortiz? What mode is
applicable? SC applied equitable justice to enable
Ortiz to collect retirement benefits, i.e. the
separation was on the basis of expiration of term due
to loss of confidence, thus, he was allowed payment
of benefits.
Q: What happens if subsequent to the filing of
administrative cases, there is a resignation by the
respondent public officer. Would this mean that there
is a dismissal or condonation of the administrative
case? Take note that in RA 3019 (Anti-Graft and
Corrupt Practices Act), Section 12: “No public
officer or employee shall be allowed to resign
or retire from public service pending
determination of the case, whether
administrative or criminal.” But of course, the
reality is that public officers are still able to resign or
retire despite pendency of cases. So would this mean
that the case against this public officer who was able
to resign/retire during the pendency of the case
would be terminated/dismissed?
A: NO. Jurisdiction is acquired from the time of the
filing of the complaint. So once a complaint is filed
against a public officer, jurisdiction is conferred
to the authority. Any incident subsequent to
the filing of the case, such as a resignation or
retirement, does not have the effect of the
dismissal of the case. You know, the objective of
such complaint is precisely to promote the integrity
of the public service. Thus, there should be the
corresponding penalty if evidence so exists that the
public officer is guilty. Moreover, Section 12 of RA
3019 can apply only in those cases that do not have
any legal defect or issue.
Estrada vs. Desierto
March 2, 2001
Issue: WON Estrada resigned from service or as
claimed by him, was there merely a temporary
78 | P a g e
disability or incapacity on his part to govern? Was
there abandonment? Executive Secretary Angara’s
diary provided a glimpse of Estrada’s state of mind.
This was a case of resignation because the words he
uttered: "ayoko na, masyado nang masakit. Pagod na
ako sa red tape, bureaucracy, intriga. I just want to
clear my name, then I will go," are words of
resignation.
Held: SC applied the TOTALITY RULE: the totality
of prior, contemporaneous and posterior facts
and circumstantial evidence bearing a material
relevance on the issue. In this case, as the words
Estrada used. Even if Estrada can prove that he did
not resign, still, he cannot successfully claim that he
is a President on leave on the ground that he is
merely unable to govern temporarily. That claim
has been laid to rest by Congress as both
houses have recognized respondent Arroyo as
the President. Implicitly clear in that recognition is
the premise that the inability of Estrada is no longer
temporary but permanent. The decision that
respondent is the de jure President made by a
co-equal branch of government cannot be
reviewed by the SC. The question of inability to
discharge the powers and duties of the presidency is
political in nature and addressed solely to Congress
by constitutional fiat.(issue is political-SC
cannot interfere) Petitioner’s claim that the
pendency of cases filed against him before the
Ombudsman bars him from resigning under Section
12 of RA 3019 is untenable. Said provision cannot
be invoked by petitioner for it contemplates of causes
whose investigation or prosecution do not suffer from
any insuperable legal obstacle like the immunity
from suit of a sitting President.
Read—PICHAY v Ochoa—power to discipline—lodged
with the appointing power(See powerpoint)
If the allows another competent tribunal; first to take
cognizance—excludes the others.
Read Gonzales vs OP—tourist bus—authority of
ombudsman to discipline all elective/appointive official.
Gonzales vs OP
Restrictions to removal
1. Must be for any of the grounds under the law
2. Observance of due process
Francisco vs HR
Whether the offenses in the impeachment complaint
constitute valid impeachable offenses is a non –judiciable
but purely a political question (beyond judicial
scrutiny); must be decided by congress
SB OF SAN ANDRES V. CA
 Private respondent Antonio was elected
Brgy. Captain
 He was later elected as President of the
Association of Brgy. Councils
 Then he was appointed by the President as
Member of the Sangguniang Bayan (SB)
 In lieu of the reorganization of the Provincial
Council, petitioner was designated as
temporary member of the Sangguniang
Panlalawigan.
 Because of his designation, PR resigned as
member of the SB
 He tendered his resignation to the
mayor who did not forward the same to
the SB, where the resignation should have
tendered.
 The appointment of PR as Sectoral
Representative was declared void
because he did not possess the
necessary qualification
 PR now wants to resume his position in
the SB.
 The SB issued a resolution denying his
request.
Issue: WON there was a complete and effective
resignation, if none, WON there was an abandon of
office.
Held:

Except P, VP,SC member and ombudsman-removed only
through impeachment.
Sec 21 RA 6770; but SC applied Sec 8 of RA 6770—
authority of President (express authority)-actually
concurrent jurisdiction.
Only grounds: under Art XI sec 2 & observance of
procedural due process
There was no valid resignation as it was not
accepted by the proper authority. The letter was
addressed to the mayor. It should have been
submitted to the President or his alter ego, the
DILG Secretary.(Sec 82 of LGC)
Although the resignation was invalid, PR has
effectively relinquished his membership in the SB
due to his voluntary abandonment of said post.

But the ruling was modified: Motion for Reconsideration- Abandonment is the voluntary
Sec 8 RA 6770-unconsitutional—ONLY OMBUDSMAN relinquishment of an office by the holder and the
has authority to discipline the deputy intention of terminating his possession and control
ombudsman(so wala na authority ang President—to thereof.
protect the independence of the Omubsman)
Abandonment of office is a species of
But sustained the authority of president to resignation.
discipline the special Prosecutor(principal lawyer of
Govt involving high ranking officials)—Sulit vs OP Intention of PR to abandon his position is manifested by:

79 | P a g e
 1. His failure to perform his function as
member of the SB
2. Failure to collect the corresponding
remuneration for the position
3. Failure to object to the appointment of
Aquino as his replacement in the SB
4. Prolonged failure to initiate any act to
reassume his post in the SB after Supreme
Court nullified his designation to the SP
* resignation – a formal relinquishment
*abandonment – voluntary relinquishment through
non-user
*non-user – neglect to use a privilege or a right
GONZALES V. ESCALONA
(566 SCRA 4)
In criminal case 2150, the RTC awarded
damages to complainant Gonzales for the death of her
son in a vehicular accident. Serafico, the employer of the
accused agreed to pay the damages awarded to the
victim.
The instant case is a complaint for conduct
prejudicial to the best interest of the service and grave
misconduct in connection with the enforcement of the
writ of the execution in criminal case 2150. Respondents
are Escalona, now resigned, used to be the Branch Clerk
of Court and Superada, now deceased, who was Sheriff
in the offices of clerk.
Petitioner Gonzales alleged that even before the
writ of execution was issued by the RTC, respondent
Superada demanded money from her, allegedly for
expenses in serving the writ. The complainant further
alleged that without consent, both respondent accepted
from Serafica, post dated checks in payment of the
damages awarded to the victims.
Issue: WON respondents are guilty of the charge
against them.
WON the death of respondent Superada
extinguishes his administrative liability.
When does jurisdiction vest on the admin/disciplining
authority—at the time of the institution of complaint—
and any subsequent happening will not affect the
administrative proceeding(once jurisdiction is vested—it
is not lost)
Held: The court finds the evidence on record sufficient
to establish culpability of the respondents.
Sec. 1 of Art. XI of the constitution declares that
a public office is a public trust. It enjoins public offices
and employees to serve with the highest degree of
responsibility, integrity, loyalty and efficiency and at all
times, remain accountable to the people.
The examination of the records of the case tells
that there was connivance between respondents on the
manner of collecting and disbursing the amounts
awarded to the accident victims so that the respondents
could personally benefit from the proceeds of the courts
awards. Escalona’s resignation does not free him
from liability. It is in fact an indication of guilt.
(flight is an indication of guilt)
Meanwhile, the death of the respondent in an
administrative case does not preclude a finding of
administrative liability. The administrative case is not
automatically terminated upon the respondents
death. The reason is one of law and public interest; a
public office is a public trust that needs to be
protected and safeguarded at all cost and even
beyond the death of the public officer who has tarnished
its integrity.
Administrative proceedings is by its only nature,
not strictly personal so that the proceedings can
proceed beyond the employee’s death, subject to
the exceptional considerations.
Consideration in dismissing the administrative
case due to death:
1. Observance of respondents right to due
process
2. Presence of exceptional circumstances,
equitable and humanitarian reasons
3. Kind of penalty imposed; fine is enforceable
---Read--Ombudsman vs Andutan—
Sec 20(5) RA 6770
Pertaining to the administrative case  to acquire
jurisdiction—must be connected with the agency at
the time of the institution of actio
He must be connected with the agency at the time
of institution of action.(so at the time of the filing
of the complaint/information) Otherwise—disciplining
authority cannot have jurisdiction over his
person(because he is already a private person)
In this case—prior to institution of the admin case,
he was no longer a public officer. So the state
never acquired jurisdiction over his person.
But ombudsman may continue with the
criminal case.Only the
administrative case is terminated due to the
fact that he was no longer a public officer at the time of
institution of administrative case.
Read Batangas University v Bonifacio
 Alleged to be illegally dismissed from service
 Dismissal of CSC—reversed sa CA and
affirmed by SC
 Meaning the illegally dismissed officer is
entitled to reinstatement and other monetary
benefits from dismissal to time reinstatement
80 | P a g e
 (subsequent cases—only for a period of 5
years)
Read Adiong vs CA
 Removal must be with legal basis
 Directive requiring employees to make
courtesy call and show their appointment
papers
 Guzxa failed to comply—dismissed in service
 Cause must be provided under the law(NOT
BASED on directive)
 PD 87 Sec 40(before summary dismissal on
2 grounds—repealed by RA 6654 in May
1998)
Grounds for summary dismissal
1. Notoriously undesirable
2.recidivist
Against due process
PAGANO V. NAZARRO
(533 SCRA 622)
 Petitioner was employed as Cashier IV of
the office of the Provincial Treasurer
 An administrative charge was filed against
her in connection with a cash shortage
she incurred
 After she filed/submitted her explanation on
the administrative charge, she filed her
certificate of candidacy for councilor
 Petitioner argues that a government
employee who has been separated from
service, whether by voluntary resignation or
by operation of law, can no longer be
administratively charged.
 Sec. 66 of the OEC: any person holding a
public appointive office or position shall be
considered resigned ipso facto from his office
upon filing of the COC.
Issue: WON a government employee who has been
separated from CS by operation of law/Sec. 66 of OEC –
may still be administratively charged under CS laws,
rules and regulations.
Held: YES. Resignation of a government employee
charged with an offense punishable by dismissal from
the service does not render moot the administrative
case against him. Resignation of a public servant is not
a way to evade administrative liability. The hasty filing of
petitioners COC after the Provincial Treasurer asked her
to explain irregularities in the exercise of her functions
appears to be a ploy to escape administrative
liability.
Public service requires utmost integrity and
discipline. Since a public office is a public trust, a public
servant must exhibit at all times the highest sense of
honesty and integrity.
Petitioners bad faith was manifested when she
filed her COC fully knowing that administrative
proceedings were being instituted against her.
Petitioner cannot be immune from administrative
charges.
b. If a person is dismissed, he should be informed
of the reason.
DARIO V. MISON
Facts:
 After the EDSA Revolution, President Aquino
issued Proclamation No. 3, reorganizing the
Philippine Government.
 With the advent of the reorganization
process, the President called upon “all
appointive public officials to submit
their courtesy resignations, beginning
with the members of the Supreme Court.
 Comm. Of Customs Mison issued a
memorandum prescribing the procedure in
personnel placement.
 Petitioners in this case as customs
employees who were terminated or
deemed separated from service.
Issue: WON the reorganization is valid.
Held: NO. Reorganizations have been regarded as valid
provided they pursued in good faith.
In the case, there is no showing that legitimate
structural changes have been made or reorganization
have been undertaken. Records show that commissioner
Mison separated about 394 customs personnel but
replaced them with 522. This betrays the clear intent
to “pack” the Bureau of Customs.
TRILLANES V. PIMENTEL
27 June 2008
Facts: In the aftermath of the “Oakwood Incident”,
Petitioner Trillanes IV was charged with coup d’ etat
before the RTC. Close to 4 years later, petitioner, who
has remained in detention, won a seat in the senate.
Before the commencement of his term in 2007 he file an
Omnibus motion requesting, among others, that he be
allowed to go to the senate to attend all official functions
of the senate. He alleged that there is a difference
between his case and that of Jalosjos. Jaloslos was
already convicted whereas he is a mere detention
prisoner. Jalosjos was charged of crimes involving
moral turpitude while petioner is indicted for coup
d’ etat which is a political offense. Petitioner also alleged
that his election provides legal justification to allow him
to serve his mandate, after the people elected him as
Senator. He hinged his contention on the doctrine of
admin law that “a public official cannot be
removed for admin misconduct committed during a
81 | P a g e
prior term, since his re-election to office operates
as a condonation of the officer’s misconduct.
Issue: WON the doctrine of consideration is applicable in
Trillanes case.
Held: There is no distinction between Trillanes case and
that of Jalosjos. The rule states that no person
charged with a capital offense or by RP or life
imprisonment, shall be admitted to bail even if the
evidence of guilt is strong, regardless of the state
of criminal action. This provision apply equally to rape
and coup d’ etat cases both being punishable by RP.
Within the class of offends covered by the stated range
of imposable penalties, there is no clear distinction as to
the political complexion of coup d’ etat or moral
turpitude involved in the crime charged. The justification
for confinement with its underlying rationale of public
self-defense applies equally to detention prisoners
(Trillanes) or convicte prisoner (Jalosjos) . the doctrine
of condonation also does not apply in Trillanes’ case. The
case against him is not administrative in nature. And
there is no “Prior Elim” to speak of. The doctrine of
condonation does not apply to criminal cases.
Election, or more precisely re-election to office,
does not obliterate a criminal charge.
DOCTRINE OF CONDONATION—APPLIES ONLY TO
ADMIN CASES
PEOPLE V. MACEDA
380Phil.1
Facts: PR Javellana has been arrested based on the
filing of criminal case against him. By such arrest, he
is deemed to be under the custody of law. The TD’s
order specifically provided for PR’s detention at the
residence of Atty. Del Rosario. However, PR was to be
allowed liberty to roam around but was to be held
as detention prisoner in said residence. This order of
the TC was not strictly complied with because PR was
not detained in the residence of Atty. Del Rosario.
He went about his normal activities as if he were a free
man, including engaging in the practice of law.
Issue: WON a person can still practice his profession
while deemed to be under the custody of law.
Held: Regarding his continued practice of law as a
detention prisoner, PR Javellana is not allowed to
practice his profession as a necessary consequence
of his status as a detention prisoner. As a matter of
law, when a person indicted for an offense is arrested,
he is deemed place under the custody of the law. He is
placed in an actual restraints of liberty in jail so
that he may be bound to answer for the
commission of the offense. Let it be stressed that all
prisoners whether under preventive detention or serving
final sentence cannot practice their profession nor
engage in any business or position to hold office, elective
or appointive, while in detention.
Romagos vs. Metro Cebu Water District ,
533SCRA50
Facts:
Romagos was employed in Metro Cebu Water
District (MCWD) as Clerk-Processor B. in 1999, MCWD
barred Romagos from entering the work premises unless
she undergoes psychiatric treatment and is
certified by her doctor to be mentally fit to work.
Thereafter, MCWD informed Romagos through a letter
that, effective January 1, 2000, she was being dropped
from the rolls for mental incapacity. Romagos filed with
the CSC Regional Office (CSCRO) a complaint,
questioning the procedure and factual basis of her
dismissal. The CSCRO dismissed the appeal. Romagos
appealed to the CSCbut the CSC affirmed the CSCRO
decisions. Romagos questioned the CSC Resolutions
before the CA but the CA denied her petition.
On appeal—she was declared competent to work
Issue:
WON respondent sufficiently proved that
petitioner’s mental condition has rendered her
incapacitated to work as to justify her being dropped
from the rolls.
Held:
It did not.
The certification presented by respondent hardly
prove tha petitioner’s behavior manifests a continuing
mental disorder and incapacity to work. In fact, the 1991
medical certification of Dr. Obra states that petitioner
“may go back to work provided that she will come
back for check-up as scheduled.
Another evidence of petitioner’s continuing
capacity to work despite her mental condition is her
performance ratings for 1996 and 1998. In both
evaluations, petitioner’s work performance was
rated “very satisfactory”
Also, the 1999 medical certification issued by Dr.
Obra declared petitioner “physically and mentally fit to
go bach to work.”
While there is no question that at the time she
was dropped from the rolls, petitioner was suffering from
a protracted mental disorder, the same did not render
her incapable of performing her work. There was
therefore an incomplete cause or justification to drop her
from the rolls.
Her separation from the service being invalid,
petitioner is entitled to reinstatement to her former
position with payment of backwages.
Mental incapacity due to immoral or vicious habit—
See Sec 46 EO 292—disciplinary in nature as
distinguished from sec 26 EO 292 also under sec
26 no disqualification
82 | P a g e

c. Impeachable officials
IMPEACHMENT - This is an important mode of
termination. In fact the recent issues involving this mode
is the matter of the authority of the Ombudsman
(OMB) to investigate supposed anomalies
committed by these so-called impeachable officers.
Under the Article XI, Section 2 of the Constitution, “The
President, Vice-President, members of the SC, members
of the Constitutional Commissions (CSC, COA, COMELEC)
and the Ombudsman may be removed from office on
impeachment for, and conviction of, culpable violation
of the Constitution, treason, bribery, graft and
corruption, other high crimes or betrayal of public trust.
All other public officers and employees may be removed
from office as provided by law, but not by
impeachment.”
Q: Are Commissioners of the Commission on Human
rights impeachable officers? Take note that the
CHR is also a constitutional creation.
A: No. In the case of the Bautista vs. Salonga, the SC
held that the terms of the commissioners are fixed at
a period of 7 years, and they cannot be replaced
sooner than 7 years, unless the ground is recognized
under the law. The Commissioners can only be
removed on grounds provided by law because only
those commissioners of the constitutional
commissions mentioned in Article XI, Section 2 are
the so-call impeachable officers.
A verified complaint for impeachment may be filed by:
1. Any member of the House of
Representatives[HOUSE, DILI SENATE]
2. By any citizen upon a resolution or endorsement
by any member of the House of Representatives
In RE: Raul Gonzales
160 SCRA 771
Facts: Raul Gonzales (before he became
Congressman of Iloilo and Secretary of
(in)Justice), was a Tanodbayan. In his capacity as
such, he an anonymous complaint from the
concerned employees of the SC complaining
against Associate Justice Marcelo Fernan. It was
alleged that Fernan was holding another position.
A disbarment case was filed. Feeling aggrieved,
the matter was elevated to the SC en banc.
Issue: WON an impeachable officer be the
subject of an investigation?
Held: SC ruled that whenever a public officer is
charged and is holding a public office which
requires as a condition thereto membership
in the Philippine Bar, no case may prosper
against him other than the mode of
impeachment. For example, a member of the
SC can only be removed from office by the
process of impeachment. He must first be
removed from office by impeachment, then after
that he may be held to answer for any charges
against him.
Q: What if an administrative case, specifically a
disbarment case is filed? May this prosper?
A: No, because it has the effect of ultimately
removing him from the service in a manner that
is not consistent with the rule prescribed under
the Constitution (Article XI, Section 2). It does
not mean that these officials cannot be
administratively charged. It only means that you
must follow the constitutional provision that
these officials can only be removed by
impeachment, then such action, whether criminal
or administrative case may prosper.
The same is true when let us say a criminal case is filed
with the DOJ. Of course the DOJ will determine if there is
probable cause for the filing of the information in court.
If a case is filed against any impeachable officer,
the DOJ ought to dismiss the complaint outright.
Q: I have mentioned earlier the matter on the authority
of the Ombudsman to conduct an investigation for
alleged anomalies committed by the Commissioners
of the COMELEC. Is this matter within the authority
of the OMB? This is a legal issue, right?
A: The law provides that the OMB can investigate
for the purpose, not of conducting the formal
investigation, but for the purpose of filing the
articles of impeachment before the House of
Representatives. So he merely has the role of a
fact finder for the purpose of determining
whether there is evidence to sustain these
articles of impeachment. (Role of the
ombudsman)
Q: Is cronysm a ground for impeachment? What is
cronysm? (2000 Bar)
A: Cronysm is in fact a legal ground for impeachment
of the President. This refers to violation of the oath of
office because it involves a betrayal of public
trust. Cronysim involves unduly favoring a crony to
the prejudice of public interest.
OMBUDSMAN V. MOJICA
Facts:
PR Mojica was the Deputy Ombudsman for the
Visayas. A complaint was filed against him for
committing the acts of extortion, sexual harassment
and oppression. Acting on the formal complaint against
PR, the Ombudsman directed his Fact-Finding and
Intelligence Bureau (FFIB) to conduct a verification and
fact-finding inestigation on the matter. The FFIB, in its
Report, found the evidence against PR to be strong.
The FFIB report was referred to a constituted Committee
of Peers which initially recommend that the
investigation be converted into one solely for
purposes of impeachment. However, this
recommendation was denied by the Ombudsman
following the established stand of the office of the
83 | P a g e
Ombudsman that the Deputy Ombudsmen and the
Special Prosecutor are not removable through
impeachment. So, upon evaluation, the committee
recommended the docketing of the complaint as
criminal and administrative cases. Aggrieved, PR filed a
petition for certiorari before the CA. the CA set aside
and declared null and void the criminal and
administrative cases against the PR ruling that he is an
impeachable official.
Issue:
WON the Deputy Ombudsman is an impeachable
officer.
Held:
NO. Under Art. XI, Sec. 2 of the 1987, the
impeachable officers are the President, Vice President,
the members of the Supreme court, the members of the
Constitutional Commissions, and the Ombudsman. The
list of impeachable officers enumerated in the
provision is exclusive. Only the Ombudsman and
not his deputies, is impeachable. Thus, SC held that
PR, then Deputy Ombudsman for the Visayas, may be
held criminally and/or administratively liable.
Additional note:
The legal maxim “stare decisis et non quieta
movere” (follow past precedents and do not disturb what
has beenj settled) states that where the same questions
relating to the same event have been put forward by
parties similarly situated as in a previous case litigated
and decided by a competent court, the rule stare decisis
is a bar to any attempt to relitigate the same issue.
The succeeding cases of In Re: Raul M. Gonzales
and Jarque v. Desierto do not tackle the impeachability
of a Deputy Ombudsman either. Thus, where the issue
involved was not raised nor presented to the court and
not passed upon by the court in the previous case, the
decision in the previous case is not stare decisis of the
question presented
MARCOLETA V. BORRA
Facts:
A complaint for disbarment was file by Atty.
Marcoleta against respondents Commissioners
Borra and Brawner of the COMELEC. The instant
petition arose from the dispute between the complainant
and Osabel who were contesting as to who has the
right to represent the ALAGAD Party List in
congress. The dispute was resolved by a COMELEC
resolution in favor of Osabel. Commissioner Borra wrote
the ponencia while commissioner concurred. The
complainant alleges among others that respondents
promulgated a highly questionable and irregular
resolution that was characterized by manifest
partiality, evident bad faith, and gross inexcusable
negligence. During the pendency of the case, respondent
Borra retired from the Comelec in 2008 while respondent
Brawner passed away of the same year.
Issue:
WON the disbarment complaint against
respondent may prosper.
Held:
No. it is a rule that an impeachable officer who
is a member of the Bar cannot be disbarred without
first being impeached. At the time the present
complaint was filed, respondents and three other
commissioners were all lawyers. As an impeachable
officer who is at the same time a member of the Bar,
respondent Borra must first be removed from office via
the constitutional route of impeachment before he may
be held to answer administratively for his supposed
errant resolutions and actions.
The complaint also inviked Sec. 58 of Art. VII of
the Omnibus Election Code which states that “The
chairman and members of the Commission shall be
subject to the canons of judicial ethics in the discharge
of their functions”. It bears emphasis that the New Code
of Judicial Conduct for the Philippine Judiciary applies
only to courts of law, of which the comelec is not,
hence, sanctions pertaining to violations thereof
are made exclusively applicable to the judges and
justices in the judiciary, not to quasi-judicial officers
like the Comelec chairman and members, who have their
own codes of conduct to steer them.
Cronyism is a legal ground for impeachment of the
President. It refers to betrayal of public trust and
includes cronyism w/c involves unduly favoring a crony
to prejudice the public interest.
Inre Justice Ruben Reyes
The rule prohibiting the institution of disbarment
proceedings vs and impeachable officer who is required
by the constitution to be a member of the bar as a
qualification in office applies only during his tenure &
does not create immunity from liability. Once he is
no longer in office because of removal , resignation or
retirement, Sc may proceed vs him & impose the
corresponding santions for misconduct committed
during his tenure pursuant to court’s power of
supervision over its members.
CUENCO V. FERNAN
Facts:
Complainant Atty. Cuenco, a former House of
Represntative member from the province of Cebu prayed
the disbarment of Mr. Justice Fernan, Chairman of the
Third Division of Supreme court. Cuenco, who had
represented a group of heirs in the Vito Borromeo
intestate estate proceedings, alleged among others that
Mr. Justice Fernan, appeared as councsel for the 3
instituted heirs in the Borromeo case and despite
having already accepted his appointment as an Associate
justice of the court, “continues to be counsel for the
instituted heirs. Also, petitioner alleged that respondent
exerted personal efforts to influence the decision or
the outcome for the Vito Borromeo proceedings.
Issue:
WON justice Fernan may be validly removed
through a disbarment proceeding.
Held:
84 | P a g e
 No. The SC found nothing in the record of the
Vito Borromeo estate proceedings to indicate that
Mr. Justice Fernan had appeared as counsel in such
proceedings or continues to be counsel for the instituted
heirs. Mr. Justice Fernan’s professional involvement
in the proceedings had ceased long before his
appointment to the Supreme court. The record of
this case suggests that the accusations against Mr.
Justice Fernan were instituted without any basis.
Moreover, the disbarment case cannot
prosper because under the consti, members of the
Supreme court may be removed from office only by
impeachment. To grant a complaint for disbarment of
the member of the Court during the member’s
incumbency, would in effect be a circumvention of
the constitutional mandate that Members of the
Court may be removed from office only by
impeachment for and conviction of certain offenses
listed in Art. XI (2) of the Constitution.
REACHING THE AGE LIMIT
1. Military Officer – 56 years old
2. Judiciary – 70 years old
3. Usual Civil Service eligible – 65 years old
RA 1616 or the Special Retirement Law – allows
optional retirement after an officer has rendered
a minimum number of years of government
service.
RECALL – The termination of official relationship of an
elective official for loss of confidence, prior to the
expiration of his term of office, through the will of
the electorate, who are the registered voters of a LGU
to which the local elective official subject to such recall
belongs. This is recognized under Section 68 of the LGC.
The elective official sought to be recalled shall not
be allowed to resign while the recall process is in
progress.
Under the Section 69 of the LGC, a petition for recall
may be instituted by at least 25% of the total
number of registered voters of the LGU concerned to
be filed before the COMELEC. In case the recall
election has been conducted, the local government
official who is the subject of the recall proceedings is
an automatic candidate.
Q: On what ground may this official be recalled? Should
there be a need to have evidence of wrong-doing?
Should there be a need that charges of graft and
corruption be instituted against the local elective
official?
A: No need because the sole ground is loss of
confidence. So this means that if the sole ground is
loss of confidence, there is here the formal
withdrawal by the electorate of their elective official.
So there is loss of confidence in the ability of the
local elective official in discharging his duties.
Limitations:
1. Any elective official may be subject of a recall
election only once during his term of office.
2. No recall shall take place within one (1) year
from the date of the official’s assumption to
office or one (1) immediately preceding a regular
election.
Evardone vs. COMELEC
206 s 434
The Court ruled that the loss of confidence as a
ground to remove a public official is a
political question. So what conclusion do we
reach here if it is a political question? Therefore
the court has no power to rule on the validity of
the recall of the local elective official. Since this is
a political question, this belongs to the political
realm where only the people are the sole judges.
Limitations
See Sec 73 RA 7160
Elective official sought to be recalled shall not be allowed
to resign while recall process is under progress.
Sec 74 RA 7160
Recall within 1 year from the date of the official’s
assumption of office or a year immediately preceding a
local election.(so during the second year of office lang)
REMOVAL – Article IX-B of the Constitution - “No public
officer or employee may be removed from office except
as provided for by law.” The power to remove is
implied in the power to appoint. Requisites under the
Civil Service Law and the Administrative Code: (1) For a
valid reason and just cause; and (2) After due
process.
BAWAL NA ANG SUMMARY DISMISSAL
Section 40 of PD 807, which authorized summary
dismissal has been repealed by RA 6654, approved
on May 20, 1988 and published in the Official Gazette on
May 30, 1988. This section was violative of due
process in so far as it deprived the civil servant of
the right to defend himself against the ex-parte
decision to dismiss him (Abalos v CSC, 196 SCRA 81;
Rosete v CA, 264 SCRA 149).(grounds before under the
repealed law are, recidivism & notoriously undesirable)
Q: What is the essence of this due process?
A: It is simply the right of a person to be heard before
being condemned.
I have mentioned to you the rule that an act or omission
may give rise to both criminal and administrative
liability. Now, the same act or omission may be:
ADMINISTRATIVE CASE MAY PROCEED INDEPENDENTLY
OF THE CRIMINAL(IF in relation to office)
1. In relation to a public office- The public officer
may be charged administratively with an act or
omission committed by him without need to await for a
conviction in criminal case. The administrative case
85 | P a g e
 may proceed independently despite non-
determination of the criminal case. Let us say
malversation. It gives rise to an administrative case of
misconduct.
a. Misconduct,
b. Dereliction or Neglect of duties,
c. Conduct prejudicial to the best interest of the
service,
d. Oppression
2. Not in relation to his duties - Let us say a
Congressman commits acts of lasciviousness. You
do not have to be a public officer to commit this crime.
If the offense has nothing to do with the official duties
of the public officer, before the officer may be charged
administratively, there must be a conviction in the
criminal case of a crime involving moral
turpitude. Let us say, A commits rape. Can he be
charged with misconduct? No, unless there is a
conviction by final judgment. This is a prior
requirement to the institution of the administrative
case. So the act must constitute a crime and there
must be a conviction in the criminal case before the
public officer may be charged administratively.
So, if the crime is not connected with the official
duties, the administrative case cannot be
proceeded independently of the final conviction in
the criminal case.
EXCEPTION
But this is not so if the ground is DISHONESTY. Take
note that there is no need for the act constituting
dishonesty to be related to the official functions
and duties for the institution of the administrative
case. Why? The rationale is that if a government officer
is dishonest, even if said defect of character is not
connected with his office, it affects his right to continue
in office (Remolona v CSC, 362 SCRA 304).
FALSIFYING A DOCUMENT IS DISHONESTY!!!
Example: A, a public officer, falsifies a document
(assuming it was not related to his duties). He forges the
signature of his siblings to get his inheritance. This has
nothing to do with his official duties but this is
dishonesty. Can he be administratively charged? Yes,
unlike misconduct. So here, if the evidence is sufficient,
A can already be removed even if the act or omission
was not related to his official duties.
Q: What principle applies if a public officer is charged
with two or more offenses? What is the rule in the
matter of the imposition of the penalties?
A: He shall be penalized with the penalty
corresponding to the most serious offense
charged. The others shall be considered as
aggravating circumstances. Of course we
know that in cases like dishonesty, misconduct, first
offense is already sufficient for dismissal. CONDUCT
PREJUDICIAL TO THE SERVICE warrants the
penalty of suspension, let us say, for 6 months and 1
day. If the public officer was also facing other
charges and was likewise found guilty, the penalty
will not only be for 6 months 1 day but may be
increased to 1 year.
Q: What is MISCONDUCT?
A: Misconduct pertains to the failure of a public
officer to perform his official duties as imposed
upon him by law and public policy and morals.
It must have a direct relation to and be
connected with the performance of official
duties (PAGCOR v Rilloraza, 359 SCRA 525, Maguad
v de Guzman, 307 SCRA 657). Serious
misconduct in office is such misconduct which
affects the performance of his duties as a
public officer and not only his character as a
private individual (NBI v Judge Villanueva, 370
SCRA 2; Manuel v Calimag, 307 SCRA 657; Llamas-
Tan v CA, 358 SCRA 121). Grave misconduct, as
distinguished from simple misconduct, the
elements of corruption, clear intent to violate the
law or flagrant disregard of established rule,
must be manifest (CSC v Belagan, 440 SCRA 578).
Q: What is the effect of dismissal?
A: It has the effect of the forfeiture of retirement
benefits. In the RPC, among the accessory penalties
is perpetual disqualification in the public office. So if
you are convicted of a grave offense, let us say
misconduct, or dishonesty, apart from your being
dismissed in your service, you are also disqualified
from being employed in the government plus
forfeiture of retirement benefits in favor of the State.
Q: What about the value of the earned leaves? Are
they forfeited too?
A: No, because they are already earned and thus,
public officer is entitled to them.
Q: What about a person who is dropped from the
rolls? What is the basis in dropping a public
officer from the rolls?
A: If he has been absent for more than 30 days
without filing for an official leave (AWOL for
short). Dropping from the rolls is not an
administrative penalty, thus there is no
forfeiture of the retirement benefits. Thus there
is still a possibility that he may be re-employed.
Remolona vs. CSC
Facts: Estelito Remolona is a postmaster while
his wife Nery is an elementary teacher. A letter
was sent to CSC inquiring the status of the civil
service eligibility of Mrs. Remolona. It was found
out that she did not possess the required
eligibility, not having been in the list of the
passing and failing examinees, and that her
examination number belonged to somebody
else. Mr. Remolona submitted in his answer that
he was the one who is responsible for the fake
certification of his wife with the help of a lawyer
he met on the bus. Thereafter, a case was filed
86 | P a g e
before the CSC and the commission dismissed the
spouses from the services.
Held: Dishonesty is considered a grave
offense punishable by dismissal for the first
offense under Section 23, Rule 14 of the Rules
Implementing Book 5 of EO 292. Dishonesty, in
order to warrant dismissal, need not be
committed in the course of the performance
of duty by the person charged. The rationale
for the rule is that if a government officer is
dishonest or is guilty of oppression or grave
misconduct, even if said defects of character are
not connected with his office, they affect his
right to continue in office. The Government
cannot tolerate in its service a dishonest official,
even if he performs his duties correctly and well,
because by reason of his government position, he
is given more and ample opportunity to commit
acts of dishonesty against his fellow men, even
against offices and entities of the government
other than the office where he is employed; and
by reason of his office, he enjoys and possesses a
certain influence and power which renders the
victims of his grave misconduct, oppression and
dishonesty less disposed and prepared to resist
and to counteract his evil acts and actuations.
The private life of an employee cannot be
segregated from his public life. Dishonesty
inevitably reflects on the fitness of the officer or
employee to continue in office and the discipline
and morale of the service.
CSC vs. Belagan
Facts: Belagan was the Superintendent of the
DECS in Baguio. Petitioner Magdalena was an
applicant for permit to operate a pre-school.
During the ocular inspection of the school
premises, respondent allegedly kissed Magdalena
on the cheek, and when she followed up her
application, the respondent replied that "magdate
muna tayo". Thereafter, Magdalena filed a
complaint for sexual indignities and harrassment
and grave misconduct. He was found guilty of
grave misconduct by the CSC and was dismissed.
Belagan contends that the court erred in
penalizing him for grave misconduct and not
merely for disgraceful or immoral conduct
which is punishable by suspension.
INTENTIONAL ANG PAGVIOLATE SA LAW
Held: Misconduct means intentional wrong-
doing or deliberate violation of a rule of law
or standard of behavior, especially by a
government official. To constitute an
administrative offense, misconduct should relate
to or be connected with the performance of
the official functions and duties of a public
officer. In grave misconduct, as distinguished
from simple misconduct, the elements of
corruption, clear intent to violate the law or
flagrant disregard of established rule, must
be manifest. Corruption as an element of grave
misconduct consists in the act of an official or
fiduciary person who unlawfully and wrongfully
uses his station or character to procure
some benefit for himself or for another person,
contrary to duty and the rights of others.
Respondent’s acts clearly constitutes grave
misconduct, punishable by dismissal.
Dagadag vs. Tongnawa and Gammod
Facts
 Tognawa was suspended by mayor
 Decision of mayor was elevated to CSC—
affirmed
 CSC-CA(administrative decsions)
 If CA reverse—the aggrieved party is no
longer Tognawa
 Aggrieved party either Mayor or CSC
ISSUE: Who is the real party in interest when the
decision is reversed?
WON the mayor is the disciplining authority
GR: MAYOR: all heads and appointing
authority is the real party in interest in case
of an adverse decision because that emanates
from his power to appoint
Power to appoint carries with it the power to
remove
Salaries—are taken from municipal what??
Mayor Dagadag dropped Tongnawa and Gammod
(Municipal Engineer and Municipal Planning and
Development Coordinator respectively) from the
rolls since their AWOL exceeded 30 days. CA
ruled that the absences of an officer or employee,
before he can be dropped from the roll, must be
for at least 30 days without approved leave.
The absences without authorized leave must
be continuous, which means uninterrupted
or unbroken totaling at least 30 days. It has to
be continuous.
ABSENCES MUST BE CONTINUOUS
Non-payment of debts---not a ground for
removal
Willful failure to pay—willful must be declared
by courts
Unless there is
1. Admission
2. Decision rendered by court in a collection suit
Upon dismissal—leave credits are not affected
because these are already earned
CSC circular No. 12—dropping of the officer from
rolls
Grounds:
87 | P a g e
 1. Absence without leave—30 days without leave
—not disciplinary and will not result to
the forfeiture of his benefits nor will he be
perpetually be disqualified so he may still be
re-employed
DAGADAG V. TONGNAWA AND GAMMOD
Facts:
Petitioner, former mayor of Tanudan, issued an
order dropping respondents who are the municipal
engineer and municipal planning and development
coordinator from the roll of employees by
reason of their unauthorized absences.
The CA ruled that there was no valid termination of
respondents’ services. The rule provides that the
absences without authorized leave must be continuous,
which means uninterrupted, or unbroken totaling at least
30 days. Although the unauthorized absences of
Tongnawa and Gammod were more than 30 days,
those were not continuous as required by
the law, but intermittent.
Issue:
WON petitioner has legal capacity to appeal from
the Decision of the Court of Appeals
Held:
NO, petitioner has lost his legal personality to
interpose the instant petition.
mayor of Tanudan
It is provided that the
has two (2) reasons why he may
interpose an appeal in the case. The first is
rooted in his power to appoint officials and employees of
his municipality. His power to appoint carries with it the
power to remove. Whenever his order imposing
administrative sanctions upon erring municipal personnel
is challenged, he should be allowed to defend his
action considering that his the appointing
authority.
The second reason is because the salaries of
the respondents, being municipal officials, are
drawn from the municipal funds.
However, in this case, petitioner, at the time he
filed with the court the instant petition assailing the CA
Decision, was no longer the mayor of tanudan.
Records show that upon petitioner’s cessation
from public office, his successor did not file any
manifestation to the effect that he is continuing
and maintaining this appeal.
Where the petitioner (a public officer) ceases
to be mayor, the appeal and/or action he
initiated may be continued and
maintained by his successor if there is
substantial need to do so. If the successor failed to
pursue the appeal and/or action, the same should be
dismissed.
Q: Which has the authority to take cognizance?
A: For appointive officials, the administrative
complaint against an employee should first be filed
before the same body. Hence,
1. Administrative body
2. CSC
3. OMB
The employee may then file a Motion for
Reconsideration before the same body and if
unfavorable to him, he can file an appeal with the
CSC. If CSC affirms the finding of the order and gives
judgment dismissing him from the service, the aggrieved
party may directly file an appeal with the CA.
Q: Let us say that an employee of the DAR is charged,
where shall the complaint be filed?
A: It may be filed with the DAR authorities; under the
Revised Administrative Code and/or the CS Law, the
same administrative complaint may be filed with the
CSC. Let us say it is in fact lodged before the CSC.
CSC has the option either to take cognizance of the
case, but generally, if the case involves merely a
low-ranking employee belonging to the first
and second levels, the CSC will refer the case to
the administrative authority of the employee, in
this case the DAR. But this is without prejudice to
the appellate authority of the CSC.
Q: Now, what about elective officials?
A: Applying the provisions of the LGC, EO 292 and the
CS Law, since the chief executive of the local
government unit has the discretion to appoint, he
also has the power to discipline. This concludes
that the power to discipline includes the power
Chief Executive
to remove. So clearly, the
of the LGU has authority over matters
relative to misfeasances committed by appointive
public officials of that LGU. These heads of the LGUs
have the competence to impose disciplinary actions
after the observance of due process.
Q: Let us say that the Chief of the LGU imposes the
penalty of dismissal from service. Under the law, the
aggrieved party has the right to appeal. Where
should the aggrieved party appeal his case?
A: The appeal may be taken first by an MFR to the
Chief Executive. If denied, the remedy is appeal
before the CSC. Is there any other higher body if
on appeal to the CSC, the commission affirms the
dismissal? The CA may take cognizance.
Chief executive-CSC-CA
Q: Here, if there is reversal of the Chief Executive's
decision as affirmed by the CSC but reversed by the
CA, who becomes the aggrieved party for the
purpose of appealing to the SC?
A: The aggrieved party now is the Chief executive.
He is now the proper party to appeal the case to the
SC or even in an MFR to the CA. So where the
decision itself of the CSC is reversed by the CA, then
the aggrieved party is the CSC.
88 | P a g e
Q: Let us say that during the pendency of the appeal,
the mayor who initiated the action in appealing the
decision to higher authorities is replaced in the
election, may the successor who was not even a
party, take the place of his predecessor? Should the
appeal be dismissed?
A: The fact that the mayor is no longer in the service
certainly is not a basis for the dismissal because the
successor-in-interest (the newly elected
mayor) takes the place of the previous mayor.
He represents the LGU. In fact, the aggrieved party
here is not the mayor in his personal capacity but
the local government. It is certainly within the
competence of the successor to maintain the
action initially initiated.
Note: When a government official or employee in the
classified civil service has been illegally suspended or
dismissed, and his reinstatement had 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 that accrue to him by
virtue of the office he held (Tanala v Legaspi, 13 SCRA
566; Rosete v CA, supra). An illegally terminated civil
service employee is entitled to back salaries limited
only to a maximum period of five (5) years and not
full back salaries from her illegal termination up to her
resinstatement (Dr. Marohombsar v CA, February 18,
2000).
CSC V. GENTALLAN
Facts: Gentallan was appointed as Local Civil Registrar
of Jasaan, Misamis Oriental. Her appointment was
approved as permanent. Asis, a Research Aide in the
office of LCR filed a protest. It was dismissed by the CSC
because the protestant was not a qualified next-in-rank.
The CSC reviewed the appointment of Gentallan. It held
that Gentallan was not qualified as she failed to fulfill the
required 3 year experience relevant to the position of
LCR. Gentallan was ordered to vacate her post as LCR
and was directed to assume her former position as Asst.
Registration Officer. The CA found Gentallan qualified
for the position and the decision became final and
executor. The mayor was advised to reinstate Gentallan
to the position of LCR and pay her back wages. However,
the mayor did not.
Issue: WON respondent is entitled to back salaries,
RATA and bonuses.
Held: YES. Respondent was qualified and eligible
for the position of LCR. There was nor factual nor
legal basis for her renewal from said position. The
order of CA to reinstate her had become final and
executory. Thus, it has to be upheld.
An illegally dismissed government employee who
is later ordered reinstated is entitled to back wages
and other monetary benefits from the time of her
illegal dismissal up to her reinstatement. An
employee who is reinstated after being illegally
dismissed is considered as not having left her office
and should be given the corresponding
compensation at the time of her reinstatement.
Adiong vs. CA
As the newly-elected mayor of Lanao, Adiong,
upon assuming office required that all municipal
employees should make a courtesy call and submit
their appointment papers. The Municipal Local Civil
Registrar Nuska failed to do so. She was terminated. Is
the dismissed valid? No! The dismissal is illegal, a
violation of security of tenure. There should be
reinstatement of the position and payment of
backwages, which should not exceed the period of 5
years – the maximum period. Such officer should not
be considered as any time to have left the public service.
He should be considered to have a continuous service.
NOTE: Under Section 40 of PD 807 (CS Law) on
summary dismissal – a person who is notoriously
undesirable, or one who is a recidivist, may be
removed without hearing. This has been
superseded/repealed by RA 6654 (May 30, 1988).
Summary dismissal is violative of due process.
AGUINALDO DOCTRINE (PRINCIPLE OF
CONDONATION) – An elective official who is charged
for an offense or misfeasance during a prior or previous
term could no longer be sanctioned during his
present term because the present term is not a
continuation of the previous term. The two terms are
separate and distinct from each other. The other reason
here is if this government official runs for reelection and
he won and the alleged offense committed was done
during his previous term, he cannot be sanctioned in the
succeeding term (if successfully elected) because there
is condonation.
This doctrine arose when Rodolfo Aguinaldo, a former
military officer, ran for the position of governor and was
elected. Thereafter, he was accused of staging a coup
attempt against President Aquino. He was preventively
suspended. Pending final determination of the case, he
ran again for governor and won.
Find CARPIO-MORALES vs CA—abandons
Aguinaldo D April 12, 2016—but applies
prospectively; Ombudman will no longer
apply the Aguinaldo doctrine regardless when
it was committed.
KAYE, read!!!
1. P vs jalosjos
2. Trillanes vs Pimenel
89 | P a g e
 3. P vs Maceda
4. Bondoc vs Pineda
5. CSC vs Belagan—stealing a kiss
6. Romagos vs Metro Cebu water
district
2 kinds of public office
1. Lucrative: basis is the law
2. Honorary office: no payment of
compensation
May a de jure recover salary paid to a de
facto officer?
Depends on GF & bad faith, if payment was
made prior to the adjudication: de facto is
entitled and no basis for de jure to recover
But after adjudication: de facto can no
longer be regarded as in GF
Notes: officer may not retain salary from fees
collected (no-compensation because this
belong to public treasure; he has obligation to
turn-over)
May salary be subjected to garnishment,
attachment: NO
1. Before salary is paid it is still a part of
public funds
2. Contrary to public policy
3. Immunity of suit, if this is allowed, this
shall be a suit against the government
 Any agreement affecting compensation
is against public policy
 Sec 8 Art 9B No E/A official to receive
additional/double compensation unless
there is a law allowing him to be paid
 Under RA 7160: allows payment of
honorarium to Barangay officials
 Pensions and gratuities are not
considered as additional, double or
indirect compensation(Sec 8(2) Art 9b
 Above is simply an act of liberality for
services rendered before
Q: What if the elective official did not anymore run for
re-election? Would the Aguinaldo Doctrine apply to
him as well?
A: Yes, precisely because he could not anymore
enforce the sanction for an act committed during
the term that has already expired.
Note: An act or omission may give rise to both
administrative and criminal liabilities. However, the
Aguinaldo Doctrine applies only to administrative cases
and does not apply to criminal cases. Thus, he may still
be charged criminally.
Example: For malversation, the corresponding
administrative liability is misconduct. Even if this
misconduct committed by him has already been
condoned by the people by re-electing him,
nonetheless the criminal case will still continue
against him.
People vs Jalosjos
But he
He was charged with the crime of rape.
still ran for the office of
congressman and got re-elected. In
this case, the Aguinaldo Doctrine is not
applicable. What is being condoned is the
administrative offense and not the criminal
liability. Why was he allowed to run in the first
place? Is it not a disqualification? No. At that
time he ran, the case was still pending
appeal. The conviction did not yet
attain finality. Under Section 40 of LGC, the
disqualification pertains to a conviction
of final judgment. So here, the court ruled
that the re-election of Jalosjos to the position
of congressman is not a reasonable
classification of criminal enforcement. The
duties and responsibilities of a Congressman are
not substantial distinctions so as to lift him from
the class of prisoners who should be released
from incarceration. This is not so because we are
talking here of a criminal liability, and not an
administrative case.
Gonzales v CSC
390 SCRA 126
Under CSC Circular No. 12, s. 1994, the action
dropping petitioner from the rolls is non-
disciplinary in nature and does not result in
the forfeiture of his benefits nor his
90 | P a g e
disqualification from re-employment in the
government. Likewise, it is without prejudice to his
re-appointment at the discretion of the appointing
authority subject to the Civil Service laws and rules.
Bondoc vs. Piñeda
Bondoc and Piñeda were both candidates for
Congressman in Pampanga and there was this
election protest and the matter was brought before
HRET. It so happened that Bondoc was a member of
NCP while Piñeda, of LDP. Piñeda’s party-mate
Camasura, however, did not vote in favor of Piñeda.
Canasura was removed from the party and as
member of HRET and he complained that his removal
was a violation of his security of tenure. Take note
that the concept of security of tenure likewise applies
to membership in the HRET. Disloyalty to a
party is not a valid ground for removal.
Members of the HRET have the bounded responsibility
to act with impartiality.
Rule in Administrative case
GR: Removal must be in relation to office;
except
1.
1. in case of final judgment in a criminal
case with accessory penalty of disqualification
to holding office
Exception: if there is violation of civil service rules
2. Crime involving moral turpitude
Dishonesty need not be related to his office
Serious grave misconduct: element of corruption—clear
intent to disregard the rule
Mayor Dagadag v Tongnawa
450 SCRA 446
Where a municipal mayor orders the suspension or
dismissal of a municipal employee on grounds he
believes to be proper, but his order is reversed or
nullified by the CSC or the Court of Appeals (such as
in this case), he has the right to contest such adverse
ruling. His right to appeal flows from the fact
that his power to appoint carries with it the
power to remove. The second reason is because
the salaries of the respondents, being municipal
officials, are drawn from municipal funds. The
mayor has real and substantial interest in the
outcome of the administrative cases against
respondents. Where the petitioner ceases to be
mayor, the appeal and/or action he initiated may be
continued and maintained by his successor if there is
substantial need to do so.
REYES V. COMELEC
Facts: Petitioner Reyes was the incumbent Mayor of
Bongabong, Oriental Mindoro. An administrative
complaint was filed against him with the Sangguniang
Panlalawigan based on the allegation that he collected
money from each market stall holder in the Public Market
without remitting the same to the Municipal Treasurer.
SP found petitioner guilty and he was removed from
office. The decision cannot be served upon him due to
his continued refusal. Subsequently in 19958 Reyes was
reelected for the same position. Because of the decision
in the administrative case against Reyes, the COMELEC
en Bank declared him disqualified as candidate and
consequently set aside his proclamation as Municipal
Mayor. Invoking the ruling in Aguinaldo v. Santos,
petitioner argue that his reelection is a ban to his
disqualification.
Issue: WON the doctrine of condonation is applicable in
this case.
Held: The failure of the SP to deliver a copy of its
decision was due to the refusal of petitioner and his
counsel to receive the decision. When the elections
were held on 1995, the decision of the SP had already
become final and executory.
The reelection of petitioner does not render
the administrative charges against him moot and
academic. Although petitioner brought an action to
question the decision in the administrative case, the TRO
issued in the action he brought lapsed with the result
that decision was served on petitioner and thereafter
became final. He was validly removed from office and
thus pursuant to Sec. 40 (b) of the LGC, he is
disqualified from running for reelection. At the time the
Aguinaldo cases was decided, there was no provision
similar to Sec. 40 (b) which disqualifies any person
from running for any elective position on the
ground that he has been removed as a result of an
administrative case. The LGG of 1991 (RA 7160)
could not be given retroactive effect.
Sept 21, 2016
See Sec 60 of Local Government Code
Cases:
1. Ombudsman vs Punong
SB has no power to remove an elective barangay official.
Apart from the ombudsman’s, only a proper court
may do so.
2. Ombudsman vs Rodriguez
III. Preventive Suspension
PREVENTIVE SUSPENSION
2 kinds
1. Pending investigation
2. Pending appeal
 PS-still not allowed to receive salaries
 But if he gets exonerated upon
appeal, can he recover back salaries
 Under admin code, no recovery
period PS pending investigation
91 | P a g e
  But under the LGC: yes there
can be recovery under Sec 64 of RA
7160(no similar provision in the revised
administrative code)
a. Yes because, there is no longer a legal basis
b. Should there be a recovery of the salary during
the time of the investigation(no work no pay)
Notes:
 Not a penalty
Legal basis for Preventive Suspension
1. Administrative Code Sec 51 EO 292
(pending investigation for any of the conditions
present); Sec 41 PD 87
 Appointive officers
 Employees
 Ordered by the proper administrative
authority
 Max 90 days but may be
less
2. Sec 64RA 7160
 Local elective officials
 60 days-90 days if many offense
 Includes sanggunian, OP
 Applies to both period(pending
investigation and pending appeal in the
event he wins)
3. Sec 24 677 Ombudsman (both elective
and appointive)
 Maximum of 6 months
4. Indefinite preventive suspension: RA
1379(Sec 8) in relation to RA 3019
5. Criminal case: ordered by court; Sec 13 RA
3019
 No work no pay
 Not allowed to discharge duties of office
Joinder of issues: R is given chance to file an
answer—legal basis for preventive suspension
What if case is for a local elective but the case is
filed in the ombudsman’s (NO recovery of wages
pending appeal nor pending the investigation
because there is no legal basis)
Rationale: ang naa lay basis for recovery of wages
pending appeal kay ang LGC dili ang ombudmsan
Exception to general rule the periods
 Sec 8 RA 3019(indefinite suspension of the
public officer) in relation to 1379
 Sec 13 RA 3019
CSC vs Rabang
MODIFICATION OF PENALTY IS NOT
REINSTATEMENT
Modification by CA on appeal of decision of DOTC
imposing penalty of dismissal from service for gross
neglect to 3 months suspension for simple neglect is not
exoneration; reinstatement but no payment of
backwages.
This is a favorite subject of bar questions. What is this
concept all about? Of course this applies whenever there
is an administrative case filed against a public officer or
employee punishable by removal or suspension. There
are two kinds:
1. Preventive suspension pending
investigation (Section 51 of EO 292).
2. Preventive suspension pending appeal if the
penalty imposed by the disciplining authority is
suspension or dismissal and after review, the
respondent is exonerated (Section 47(4)).
First, PREVENTIVE SUSPENSION PENDING
INVESTIGATION is not a penalty, but a
measure to enable the disciplining authority to
investigate charges against respondent by preventing
the latter from intimidating or in any way influencing
witnesses against him. Pending investigation, such
respondent is not allowed to report for work
and is not entitled to compensation for the
period of suspension even though it be
subsequently determined that the cause for which
he was suspended was insufficient or that he be
exonerated (Gloria v CA, 306 SCRA 287; Caniete v
DECS Secretary, 333 SCRA 850). Such preventive
suspension, authorized by the Civil Service Law, cannot
be considered “unjustified” as it is one of those sacrifices
which holding a public office requires for the public good
(Gloria v CA, supra).
Gloria: teachers exonerated of the original charges &
found guilty only of violation of reasonable office rules
are entitled compensation.
May they recover, pending appeal—yes because the
were exonerated and guilty only if violation of reasonable
office rules
But pending the investigation: NOT entitled to back
salary!! Only upon a decision of exoneration!
Purpose: To avoid the possibility of retaliation by the
defendant public officer, his use of power to
intimidate, harass, and destroy evidence. Hence,
the rationale behind preventive suspension is to preserve
evidence and to secure the safety of the complaining
party.
Grounds for Suspension under Section 51 of EO
292:
1. Dishonesty
2. Oppression
3. Grave Misconduct
4. Neglect in the performance of duty
92 | P a g e
 5. If there are other reasons to believe that the
respondent is guilty of charges which would
warrant his removal from the service.
Grounds for Suspension under Section 24 of RA
6770:
1. Evidence of guilt is strong
2. Charges involve dishonesty, oppression or
grave misconduct or neglect in the performance of
duty;(Same sa admin code)
3. Charges would warrant removal from office
4. Continued stay in the office may prejudice
the case filed against him
Q: Take note that under the Constitution, Article IX-B,
Section 2, "no public officer may be removed or
suspended.” Is the concept of preventive suspension
within the ambit of this constitutional phrase?
A: Yes. The proper disciplining authority may issue
preventive suspension pending investigation
whenever there is an administrative case
lodged against a public officer for the
commission of offenses which involve
dishonesty, oppression or grave misconduct, or
neglect in the performance of duty, or if there
are reasons, which would warrant his removal
from the service. If the evidence of guilt is strong,
the administrative authority may already issue an
order of preventive suspension. Such preventive
suspension, authorized by the CS Law, cannot
therefore be considered “unjustified” as it is one of
those sacrifices which holding a public office requires
for the public good.
Q: Is this a penalty?
A: No because a penalty arises after there has been an
examination of the evidence, after there has been a
conduct of a hearing. In other words, this is a result
of adjudication. But here, in preventive suspension,
even before the conduct of a formal
investigation, an imposition of this order of
preventive suspension is allowed and take note
that this is not in the nature of a penalty.
Q: How then would you reconcile this fact that it is not
yet a penalty and why may there be such order be
issued even without a formal hearing? We said that
due process is required before a person is
condemned he must be heard. But why is this
preventive suspension allowed?
A: The reason here is in order to prevent the use of the
power of the office of the public officer. You know,
the respondent public officer usually occupies an
influential office. He is in a position of power which
he can use to harass or intimidate the complainant.
Or in extreme cases, even through the use of force
or to the extent of destroying (documentary)
evidence. Without this evidence of course, there can
be no basis for conviction. There can be no basis for
the issuance of a preventive suspension. Because a
preventive suspension can only be issued when
the evidence of guilt is strong and for grounds
which are so serious as would warrant the
dismissal from the service.
Q: What about in criminal proceedings?
A: The court also has the authority to issue
preventive suspension. Under Section 13 of RA
3019 (Anti-Graft and Corrupt Practices Act),
“Any public officer against whom any criminal
prosecution under a valid information under RA
3019 or under the provisions of the RPC on
bribery is pending in court, shall be suspended
from office.”
Now there is here a difference in the preventive
suspension issued by the court and administrative
bodies. In the latter case, the [admin proceedings]
issuance is optional. Meaning, at the discretion of the
administrative agencies and if they find the evidence
is strong. This is not so with the courts because the
issuance of preventive suspension is mandatory
after the determination of the validity of the
information, whenever the criminal prosecution against
the public officer involves a violation of RA 3019 or an
offense involving fraud on public funds and property
under the RPC committed by a public officer. It is
mandatory for the Sandiganbayan and the lower
court has neither the discretion nor duty to
determine whether preventive suspension is
required (Bolastig v Sandiganbayan, 235 SCRA 103).
However, the accused should be given a fair and
adequate opportunity to challenge the validity of
the criminal proceedings against him, e.x. that he
has not been afforded the right of due preliminary
investigation; that the acts for which he stands charged
do not constitute a violation of RA 3019 or the bribery
provisions of the RPC which warrant his mandatory
suspension from office. While there was no pre-
suspension hearing held to determine the validity of the
information, the numerous pleadings filed have achieved
the goal of this procedure. The right to due process is
satisfied not just by an oral hearing, but by the
filing and the consideration by the court of the
parties’ pleadings, memoranda and other position
papers (Juan v People, 322 SCRA 126). For the purpose
of resolving the propriety of suspension pendente lite, it
is sufficient that the information unequivocally
recites that the offense charged involves fraud
upon government or public funds or property
(Flores v Layosa, 436 SCRA 339).
Moreover, under Section 13, the word ‘office’
applies to any office, which the officer charged
may be holding, and not only to the particular
office under which he was charged. Thus, the
suspension of then Cavite Mayor Bayot was sustained
even as he was charged for acts committed as COA
auditor (Bayot v Sandiganbayan, 128 SCRA 383).
Governor Deloso’s suspension was held proper even if at
the time of its issuance, he was already occupying
the office of governor and not the position of
municipal mayor that he held previously when
charged with graft (Deloso v Sandiganbyan, 173 SCRA
409). The suspension order of Libanan was upheld
based on his indictment as Sanggunian Bayan member
93 | P a g e
even if he was already the duly elected and incumbent
Vice-Governor of Eastern Samar (Libanan v
Sandiganbayan, 233 SCRA 163). The Court upheld the
suspension of Dr. Berona although he resigned as
Provincial Health Officer during the pendency of
the Sandiganbayan proceedings and won as the
Municipal Mayor of Pilar, Abra (Berona v Sandiganbayan,
435 SCRA 306).
Finally, note that the suspension under Section 13
is also not a penalty but merely a preventive
measure. Hence, this is different from the suspension
contemplated under Article VI, Section 16(3) of the
Constitution, which provides that each house may
punish its members for disorderly behavior, and,
with the concurrence of two-thirds of all its members,
suspend or expel a member. The latter is a punishment
imposed by the Senate or House of Representatives
upon an erring member (Santiago v Sandiganbayan, 356
SCRA 636).
DELOSO V. Sandiganbyan, 173 SCRA 409
Facts:
Petitioner was the duly elected mayor of Botolan,
Zambales. While occupying such position, Juan
Villanueva file a complaint with the Tanodbayan accusing
him of having committed acts in violation of the anti-
Graft Law (RA 3019) in relation to the award of licenses
to operate fish corrals in the municipal waters of
Botoloan and the issuance of five (5) tractors of the
municipality to certain individuals allegedly without any
agreement to the payment of rentals. The complaint
with respect to the award of licenses to operate fish
corrals was dismissed. As regards to the other complaint,
the Tanodbayan filed with the Sandiganbayan 5 separate
informations accusing the petitioner of violation of Sec.
3(e), of the Anti-Graft Law. The SB issued a resolution
ordering that Deloso is suspended pendent lite from his
position as Provincial Governor of Zambales and from
any other office that he may now be holding.
Defense
1. Court failed to provide the period for preventive
suspension(court here applied 90 days)
2.
Issue:
WON the indefinite suspension of Deloso proper.
Held:
No. The order suspending the petitioner without
a definite period cannot be sanctioned. A preventive
suspension of an elective public officer under Sec. 13 of
Ra 3019 should be limited to the ninety (90) days
under Sec. 42 of PD no. 807, the civil Service
Decree. It would be unfair to the people of Zambales
who elected the petitioner to the highest provincial office
in their command if they are deprived of his services for
an indefinite period with the termination of his case
possibly extending beyond his entire term simply
because the big number of sequestration, ill-gotten
wealth, murder, and other more serious offenses brought
to the Supreme Court prevents the expedited
determination of his innocence or guilt.
As to petitioner’s contention that Sec. 13 of Ra
3019 as amended by Barasan Pambansa Blg. 192 does
not apply to him since he is now occupying the position
of governor and not mayor, the position wherein he was
charged under the Anti-Graft Law, The SC held that it is
untenable. As held in the case of Bayotas v. SB, the use
of the word “office” in the amendatory provision applies
to any office which the officer charged may be
holding, and not only the particular office under which
he is charged.
LIBANAN V. Sandiganbayan
( 233 SCRA 163)
Facts:
Petitioner Marcelino C. Libanan, the incumbent
Vice Governor of Eastern Samar, was a member of the
Sangguniang Panlalawigan prior to the 11 May 1992
elections. He was among those charged before the
Sandiganbayan for violating Sec. 3 (e) of RA 3019. It
was alleged that petitioner and others prevented a
certain Docena from exercising his rights as a qualified
replacement of a deceased Sangguniang Panlalawigan
member by recognizing another person shoes
appointment has been recalled by the DILG. The
Sandiganbayan issued a resolution ordering the
suspension of the petitioner from the public position he
is holding for a period of ninety (90) days.
Issue:
WON the order of suspension can still attaché to
petitioner who is now incumbent Vice-Governor of
Eastern Samar.
Held:
YES. As held in the cases of Bayot v. SB and
Deloso v. SB, the term “office” used in the law could
apply to any office which the officer charged might
currently be holding and not necessarily the
particular office under which he was charged.
Moreover, the suspension order cannot amount to a
deprivation of property without due process of law.
Public office is “a public agency or trust,” and it is
not the property envisioned by the constitutional
provision.
Also, since the criminal prosecution against
petitioner-accused is concededly not abated by the fact
of petitioner’s re-election, the pendency of such criminal
case under a valid information under RA 3019 may
clearly be a legal basis for his suspension from office in a
subsequent term in the event of his re-election by virtue
of the provisions of Sec. 13 of the Act.
Duration of the Preventive Suspension:
Now, under EO 292 and PD 807, the maximum duration
of a preventive suspension is 90 days. If the
administrative case is lodged before the Ombudsman, RA
6770 authorizes the Ombudsman to impose a preventive
94 | P a g e
suspension not only for 90 days, but even beyond that,
for six (6) months.
Generally, under the Civil Service Law, the CSC has such
authority to take cognizance of cases originally filed
before it. But usually if cases are filed against lower-
ranking officials, those who belong in the first and
second levels of the service, the CSC will just
remand the case to the administrative authority
concerned because under the law, the CSC still has
the appellate authority. Take note that this applies
only to appointive officers because as for elective
officials, the law applicable is RA 7160. Under said law,
if an administrative case is filed against a local elective
official under the provisions of the LGC, the maximum
period of preventive suspension that may be decreed for
a single offense or charge against him is 60 days.
General: 90 days [admin code]
Ombudmsan: 6 months
LGC: 60 days
Q: What if the administrative complaint grounded on the
LGC and filed against a local elective official is lodged
before the Ombudsman, which rule applies?
A: The provisions of RA 6770, so not anymore 60 days
but 6 months.
Hence,
1. Local elective official – 60 days max
2. Appointive official – 90 days max, if filed before
the agency concerned and the CSC
3. Those charged with the Ombudsman – 6 months
max; applies to both local elective and
appointive officials.
Q: When may preventive suspension be issued?
A: As applied to appointive officials, the rule here is
the preventive suspension may be issued even
before the conduct of a formal hearing.
Generally, even before the issuance of an order
directing him to file his answer, there can already be
the issuance of this preventive suspension, where he
is charged of dishonesty, oppression, etc. or any
other offense that would warrant his removal from
office, meaning, if he is charged with grave offenses
and his continuance from office would prejudice the
case against him. This is not yet a penalty. But not
so in administrative cases lodged against local
elective officials because the law itself requires
that there must first be a joinder of issues before
preventive suspension.
Appointive: suspension even prior to hearing
Local elective official: JOINDER OF ISSUESS
REQUIRED!!!
JOINDER OF ISSUES [ANSWER OR OPPORTUNITY TO
FILE ANSWER]- When there is an answer filed by the
elective official or when an order is issued by
administrative tribunal, directing the former to file his
answer, or even if the local elective official has not yet
filed his answer, but he has been given an opportunity to
file the same, which he failed to do so.
PENDING APPEAL: PUNITIVE IN NATURE UNLIKE THAT
PENDING INVESTIGATION
Second, PREVENTIVE SUSPENSION PENDING
APPEAL happens when there is already an investigation,
an adverse decision made that is executory and the
defendant officer files an appeal. It is actually
punitive although it is in effect subsequently
considered illegal if respondent is exonerated and the
administrative decision finding him guilty is reversed.
Hence, he should be reinstated with full
pay for the period of the suspension. To
deny back wages during his suspension would
tantamount to punishing him after his exoneration from
the charges which caused his dismissal from the service.
The entitlement to back salaries is limited to a period
not exceeding five (5) years and not to full back
salaries from her illegal termination up to her
reinstatement (Adiong v CA, December 4, 2001). The
Court held that a postal clerk suspended for six months
for gross neglect of duty is not entitled to back salary
if he cannot show that his suspension was
unjustified or that he is innocent of the charge
(Sales v Mathay, Sr., 129 SCRA 321).
Sales: penalty reduced to 6 months suspension(NO
exoneration in this case as distinguished from Gloria
case—they were exonerated from the original charges
Appeal: When allowable, it shall be made within
fifteen (15) days from the receipt of the
decision, unless a motion for reconsideration is
seasonably filed, which petition shall be decided
within fifteen (15 days).
Petition for Certiorari under Rule 65: From the
resolution of the CSC, petitioner may file a Petition for
Certiorari under Rule 65 (NOT Rule 45), to the SC, within
thirty (30) days from receipt of copy of the resolution.
Illustration:
As applied to LOCAL ELECTIVE OFFICIALS, take note
that the law to be applied is RA 7160. Let us say you
have here, municipal mayor X, who is charged for grave
misconduct. Under Section 60, the Sangguniang
Panlalawigan has the authority to take cognizance of the
complaint charged. Now we earlier mentioned that
preventive suspension can only be issued after there is a
joinder of issues.
T-1 T-2 (PS pending T-3
T-4 (PS pending appeal) T-5
investigation)
Complaint Joinder of Issues
Original decision Final Decision
95 | P a g e
T-1: Preventive suspension cannot be issued. It can only
be issued when there is joinder of issues, after the
complaint is filed and when an answer has been made
thereto or when there is an order of the administrative
body directing defendant public official to file his answer,
or even if he does not submit so long as he has the
opportunity to file the same.
T-2: Preventive Suspension can already be issued.
During this period, the defendant is not allowed to
perform his duties. But he is entitled to back salaries,
if thereafter exonerated or found innocent after the
investigation. (Note: If the case was filed under RA
6770 with the Ombudsman, he may not recover back
salaries because there is no provision for the same.)
T-3: There is a decision rendered but an adverse one
and so the defendant officer files an appeal.
T-4: Preventive suspension is issued pending appeal.
T-5: Final decision is made. If defendant is innocent or is
exonerated, he may recover his back salaries only for
during T-4, but not to exceed five years pay. This is
because his removal had no basis in the first place. He
was deemed illegally removed or separated from the
service.
The rule is different as applied to APPOINTIVE
OFFICERS OR EMPLOYEES. Let us say Y was an
appointive employee. The laws that apply in this case are
PD 807 or EO 292.
T-1(PS pending investigation) T-2
T-3(PS pending appeal) T-4
Complaint filed Original
decision Final Decision
T-1: At any point from the filing of the complaint,
preventive suspension can already be issued even
before the issuance of an order directing him to file
an answer. However, the officer is not entitled to back
salaries, even if exonerated or found innocent after
investigation, for there is no legal basis.
T-2: A decision is made, which is adverse to the
defendant officer and he files an appeal.
T-3: Preventive suspension pending appeal.
T-4: A final decision is made. IF there is exoneration, Y
can recover back salaries accruing during T-3 but not to
exceed 5 years pay.
Gloria v CA
306 SCRA 287
Facts: There were public school teachers who were
charged by reason of their engaging into strike. They
were ordered to go back to work but they did not
comply, so the others were dismissed and some were
suspended. Consequently, after processes of appeal,
a public school teacher was found innocent, let us say
of grave misconduct to the best interest of the
service. So the original decisions finding him guilty of
grave offenses or conduct to the best interest of
service were dismissed, but on appeal, he was found
innocent in charge. But nonetheless, there was a
finding that this public school teacher was guilty of
violating the rules and regulations of the office. On
appeal, a penalty of reprimand was imposed.
Issue: WON this public school teacher is entitled to
the recovery of back salaries during the period of
preventive suspension? YES.
Held: There was an exoneration of the original
grave charges. This means that the suspension
pending appeal was not justifiable and if it is not
justifiable, there should be recovery of back salaries.
This situation is different, let us say, from a
public school teacher who is found guilty of
grave misconduct, but on appeal the penalty
was reduced from dismissal from service to
dismissal only for 6 months. Would there be
recovery of back salaries in the latter instance? NO.
There can be only recovery if he is innocent of
charges. In this case, he was not exonerated. In
fact, there is still a finding of guilt as he was found
liable with a penalty of suspension. The mere fact
that the penalty was reduced from dismissal to
suspension is not equivalent to exoneration. There is
still a pending appeal.
DELIA BANGALISAN, et al vs CA, et al.
[G.R. No. 124678. July 31, 1997]
Facts: Petitioners, except Rodolfo Mariano, were
among the 800 public school teachers who staged
"mass actions.” DECS Secretary issued a Return-
to-Work Order. Petitioners failed to comply, hence
they were charged by the Secretary with "grave
misconduct; gross neglect of duty; gross violation of
Civil Service law, rules and regulations and
reasonable office regulations; refusal to perform
official duty; gross insubordination; conduct
prejudicial to the best interest of the service; and
absence without official leave in violation of PD 807,
otherwise known as the Civil Service Decree of the
Philippines." They were simultaneously placed under
preventive suspension. Despite due notice,
petitioners failed to submit their answer. Thus, the
DECS Secretary rendered a decision finding
petitioners guilty as charged and dismissing them
from the service effective immediately.
Acting on the motions for reconsideration filed
by petitioners, the Secretary subsequently modified
the penalty of dismissal to suspension for nine
months without pay. Not satisfied, petitioners
appealed to the CSC. CSC found Cabalfin guilty of
conduct prejudicial to the best interest of the service
and imposing on him a penalty of six months
suspension without pay. It affirmed the penalty of
nine months suspension without pay imposed on
96 | P a g e
petitioners Montances and Pagpaguitan. With respect
to the others, the CSC also found them guilty of
conduct prejudicial to the best interest of the service.
It, however, modified the penalty of nine months
suspension previously meted to them to six months
suspension with automatic reinstatement in the
service but without payment of back wages.
Held: On the issue of the propriety of the
suspension, under Section 51 of EO 292, it is the
nature of the charge against an officer or employee
which determines whether he may be placed under
preventive suspension. In the instant case, herein
petitioners were charged with grave misconduct,
gross neglect of duty, gross violation of Civil Service
law, rules and regulations, and reasonable office
regulations, refusal to perform official duty, gross
insubordination, conduct prejudicial to the best
interest of the service and absence without official
leave (AWOL), for joining the teachers' mass actions.
Hence, on the basis of the charges against them, it
was within the competence of the Secretary to place
herein petitioners under preventive suspension.
Petitioners' claim of denial of due process
must also fail. The records of this case clearly show
that they were given opportunity to refute the
charges against them but they failed to avail
themselves of the same. The essence of due process
is simply an opportunity to be heard or, as applied to
administrative proceedings, an opportunity to seek
reconsideration of the action or ruling complained of.
For as long as the parties were given the opportunity
to be heard before judgment was rendered, the
demands of due process were sufficiently met.
The payment of salaries corresponding to the period
when an employee is not allowed to work may be
decreed if he is found innocent of the charges which
caused the suspension and when the suspension is
unjustified. With respect to petitioner Rodolfo Mariano,
he was exonerated. To deny petitioner Mariano his back
wages during his suspension would be tantamount to
punishing him after his exoneration from the charges
which caused his dismissal from the service. However,
with regard to the other petitioners, the payment of their
back wages must be denied. Although the penalty
imposed on them was only suspension, they were not
completely exonerated of the charges against them. The
denial of salary to an employee during the period of his
suspension, if he should later be found guilty, is proper
because he had given ground for his suspension. It does
not impair his constitutional rights because the
Constitution itself allows suspension for cause as
provided by law and the law provides that an employee
may be suspended pending an investigation or by way of
penalty. Moreover, the general proposition is that a
public official is not entitled to any compensation if he
has not rendered any service. As he works, he shall
earn. Since petitioners did not work during the period for
which they are now claiming salaries, there can be no
legal or equitable basis to order the payment of such
salaries.
CITY MAYOR OF ZAMBOANGA vs. CA and
EUSTAQUIO C. ARGANA
[G.R. No. 80270. February 27, 1990]
Facts: Private respondent was the Chief Veterinarian
of Zamboanga City. Three female employees of his
office filed an administrative complaint against him
for Dishonesty, Oppression and Disgraceful and
Immoral Conduct for persisting to bother them and
trying to convince them to establish an illicit relation
with him, promising that their husbands will never
know about it anyway. Then Mayor of Zamboanga
City, Hon. Cesar Climaco, rendered a Decision, finding
private respondent guilty of Disgraceful and Immoral
Conduct and penalizing him with "forced resignation
from service with prejudice to reinstatement." On
appeal, the Civil Service Regional Director who
referred the case to the Merit Systems Board of the
Civil Service Commission, found private
respondent guilty only of Improper Conduct
with a penalty of "reprimand and warning."
Held: The order of payment of back salaries to
private respondent is not valid. Section 78 of the
B.P. 337, otherwise known as the LGC, provides for
the conditions under which a public servant who was
suspended or dismissed by reason of an
administrative charge, may be entitled to full
backwages. Under said provision, it is required
that private respondent must be exonerated of
the charges. In the case at bar, private respondent
was not cleared of the charges. Indeed, to allow
private respondent to receive full back salaries would
amount to rewarding him for his misdeeds and
compensating him for services that were never
rendered.
Indeed, to reinstate private respondent to his former
position with full backwages would make a mockery
of the fundamental rule that a public office is a public
trust and would render futile the constitutional
dictates on the promotion of morale, efficiency,
integrity, responsiveness, progressiveness and
courtesy in the government service. Likewise,
reinstatement would place private respondent in such
a position where the persons whom he is supposed to
lead have already lost their respect for him and where
his tarnished reputation would continue to hound him.
SALES V. MATHAY
(129 SCRA 321)
Facts:
This is a petition against respondent Auditor
General Ismael Mathay, Sr., the then auditor General,
now retired, which arose from the denial of a claim for
back salaries of petitioner Romulo Sales. Sales,
previously designated Acting Postmaster of Pinamalayan,
Oriental Mindoro, was found short of P992.46 in his
account on March 21, 1963 and of P1,000.00 on May 24,
1963. The amount in question covers the period from
Feb. 9, 1966 to August 15, 1971, during which time he
was under suspension. It was on the latter date that he
received a resolution of the then Commissioner of Civil
Service reducing what was originally the penalty of
dismissal to six months suspension, finding petitioner
guilty at most of gross neglect of duty.
97 | P a g e

Issue:
WON petitioner should be entitled to the
payment of his back salary during which time he was
under suspension.
Held:
No. To be entitled to back wages respondent
must be completely exonerated to the charges against
him. And even considering the punishment as
suspension, before a public official or employee is
entitled to payment of salaries withheld, it should be
shown that the suspension was unjustified or that
the employee was innocent of the charges
proffered against him. Moreover, with fact that
petitioner did not work during the period of which he is
now claiming salaries, there can be no legal or equitable
basis to order the payment of salaries. The general
proposition is that a public official is not entitled to any
compensation if he has not rendered any service.
Bayot vs. Sandiganbayan
(128 SCRA 383)
100 counts of estafa & falsification
Facts:
Bayot is one of the several persons accused in
more than 100 counts of estafa thru falsification of public
documents before the SB. The said charges arose from
his alleged involvement as a government auditor of the
Commission on Audit assigned to the Ministry of
Education and Culture, with some other employees from
the said ministry. During the pendency of the cases,
Bayot run for municipal mayor and won. The SB
promulgated a decision convicting the accused together
with his other co-accused in all but one in the thirty two
cases filed against them. However, BP 195 amending RA
3019 was passed, regarding the suspension and loss of
benefits upon any public officer against whom any
criminal charges are file for any offense involving fraud
upon government or public funds. SB suspended
petitioner. Bayot contended that the application of said
law upon him amounts to an ex post facto legislation and
that he cannot be suspended from his current position
based on a act which was done while he was in the
previous position.
Defense
1. Occupies a different position(no more legal
basis)—wrong kas Sec 13 ka any office!
2. Sec 13 is an expo facto law—does not apply
because preventive suspension is not a
penalty(not punitive in nature)
Issue:
WON Bayot was validly suspended.
Held:
Yes he was.
RA 3019 as amended by BP 195 is not a penal
provision; hence it does not violate the
constitutional prohibition against the enactment of
ex post facto law. According to the RPC suspension
from employment and public office during trial shall not
be considered as a penalty. It is not a penalty because it
is not a result of a judicial proceeding. In fact, if
acquitted the official who is suspended shall be entitled
to reinstatement and the Salaries and benefits which he
failed to receive during suspension.
The claim of the petitioner that he cannot be
suspended because he is currently occupying a position
different from that under which he is charged is
untenable. The amendatory provision clearly states that
any incumbent public officer against whom any criminal
prosecution under a valid information under RA 3019 or
for any offense involving fraud upon the government or
public funds or property and in whatever stage of
execution and mode of participation shall be suspended
from “office.” The use of the word “office” applies to
any office which the officer charged may be
holding and not only the particular office under he
was charged.
Berona vs. Sandiganbayan
(435 SCRA 306)
Facts:
Petitioners were public officers and employees of
the Provincial Health Office of Bangued, Abra. They were
among the seven charged for violation of Se. 3(e) of RA
3019 before the Sandiganbayan. The complaint is in
relation to the release by petitioners to Alexander
Siddayao amount of money for the payment for the
improvement of a health center when in fact, said
Siddayao is not the labor contractor for the project. After
the pre-suspension hearing, the sandiganbayan
suspended the petitioners from office for 90 days. The
Sabdiganbayan held that preventive suspension is
mandatory under Sec. 13upon the court’s finding that a
valid information charges the accused for violation of RA
3019. Petitioners contend that at that time of their
preventive suspension they were no longer holding the
positions they were occupying when the transactions,
subject of the information in the criminal case happened.
Issue:
WON Sec. 13, which qualifies the public officer as
incumbent, applies to petitioners since they are no
longer occupying the positions they held when they were
charged under RA 3019.
Held:
Petitioner’s contention is untenable. As held in
Segovia v. SB, the term “office” in Sec. 13 of the law
applies to any office which the officer might currently be
holding and not necessarily the particular office in
relation to which he is charged. The period imposed by
the Sandiganbayan is also in accord with our previous
rulings limiting to 90 days the period of preventive
suspension under Sec. 13. Sec. 13 reinforces the
principle that a public office is a public trust. Its purpose
is to prevent the accused public officer from hampering
98 | P a g e
his prosecution by intimidating or influencing witnesses,
tampering with documentary evidence, or commiting
further acts of malfeasance while in office.
IV. Rights, Duties and Privileges
RIGHTS OF PUBLIC OFFICERS
1. Right to compensation or salary
2. Right to retirement pay
3. Right to self-organization
4. Right to leave credits
5. Right to information
1. Right to compensation or salary – merely an
incident to public office
SALARY – Personal compensation to be paid to the
public officer of higher degree of employment for his
services, and it is generally fixed on an annual or
periodical payment depending on the time and not on
the amount of services
WAGE – Given to employees of lower degree of
employment and paid day by day or week by week.
Basis of the right: (1) The legal title to the office; and
(2) The fact that the law attaches compensation to the
office.
Note: A de facto officer has the right to salary for
services rendered by him until a de jure officer comes in
his place.
Salary cannot be garnished, attached or executed and
agreement to the contrary is void, because:
1. The nature of a salary is that it is still a
part of public funds or treasury;
2. Of the prohibition of suit against the State or
the Doctrine of State Immunity; and
3. It would be contrary to public policy.
Under Article IX-B, Section 8 of the Constitution,
“Additional, double or indirect compensation are
prohibited, unless specifically authorized by law.”
ADDITIONAL COMPENSATION is one given to an
officer pursuant to his ex-officio function; while
DOUBLE COMPENSATION is received by an officer from
two or more sets of public offices he holds.
Under Section 13 of PD 198, per diem is intended to be
the compensation of members of board of directors of
water districts. By specifying the compensation which a
director is entitled to receive in a month and providing
“no director shall receive other compensation: than the
amount provided for per diems, the law clearly
indicates that directors of water districts are
authorized to receive only the per diem
authorized by law and no other compensation or
allowance in whatever for (Baybay Water District v
COA, 34 SCRA 482). Since the Executive Department
Secretaries, as ex-officio members of the NHA Board, are
prohibited from receiving extra (additional)
compensation, whether it be in the form of a per diem or
an honorarium or an allowance, it follows that petitioners
who sit as their alternates cannot likewise be entitled to
receive such compensation. A contrary rule would give
petitioners a better right than their principals (dela Cruz
v COA, 371 SCRA 158.
2. Right to retirement pay – may not be applied to
indebtedness to the government. The old
Administrative Code provides that when any person
is indebted to the government, the auditor may
direct he proper officer to withhold the payment of
any money due him or his estate, the same to be
applied in satisfaction of such indebtedness. But this
proviso cannot be construed to authorize a deduction
of the value of the Treasury Warrant from a
government employee’s retirement benefits. His
retirement pay may not be withheld by
administrative fiat to answer for the shortage
while in office (Cruz v Tantuico, 166 SCRA 671;
Tantuico v Domingo, 230 SCRA 391).
Under Section 13 of RA 3019, “If a public officer is
convicted by final judgment under RA 3019 or for any
offense involving fraud upon government or public funds
or property, he shall lose all retirement or gratuity
benefits under any law, and in the event that he has
already been separated from the service and has already
received such benefits, he is liable to restitute the
same to the government.”
3. Right of self-organization – Three Constitutional
provisions that would support this right to self-
organization of government employees:
1. Article III, Section 8 – “The right of the
people including those employed in public
and private sectors to form unions or
associations not contrary to law shall not be
abridged.”
2. Article IX-B, Section 2(5) – “The right to self-
org shall not be denied to government
employees.”
3. Article III, Section 3(2) – “The right of all
workers to self-organization, collective
bargaining and negotiations, peaceful
concerted activities including the right to
strike in accordance to a law permitting
them, but in the absence of a law permitting
them government employees cannot resort
to such concerted activities.”
Also, EO 180 or the Labor Code, effective June 1,
1987, defined and delineated the scope of the
constitutional right of government employees to
self-organization and concedes to them, like their
counterparts in the private sector, the right to engage in
concerted activities, including the right to strike,
however, which must be exercised in accordance
99 | P a g e
with law, i.e. Civil Service Law and Rules and any
legislation that may be enacted by Congress. The
resolution of complaints, grievances and cases involving
government employees is not ordinarily left to collective
bargaining or other related concerted activities, but to
Civil Service Law and labor laws and procedures
whenever applicable. In case any dispute remains
unresolved after exhausting all available remedies, the
parties may jointly refer the dispute to the Public
Sector Labor-Management Council for appropriate
action (Arizala v CA, September 14, 1990). However,
employees of the SSS (SSS v CA, 175 SCRA 686) and
public school teachers (Manila Public School
Teachers Association v Secretary of Education, 220
SCRA 323) do not have the constitutional right to
strike. This does not mean though that they may not
be given the right to strike by statute. Government
employees do not have the right to strike because there
is as yet no law permitting them to strike (Republic v CA,
December 20, 1989). The right of government
employees to organize is limited to the formation of
unions or associations only (Gesite v CA, 444 SCRA 52).
Note: NOT all maters are subject to negotiation:
1. Matters that would require expenditure of
public funds, ex. Increase of salaries
2. Exercise of management prerogative, ex.
Appointment, promotion
3. Terms and conditions of employment
because these are provided by law, ex. Civil
Service Law, Labor Code, etc.
In Bangalisan v CA, 276 SCRA 619, the teachers
cannot claim that their right to peaceably assemble and
petition for the redress of grievances has been curtailed
because they can still exercise this right without the
stoppage of classes. They may be penalized not for the
exercise of their right to assemble peacefully and to
petition the government for a redress of grievances but
for conduct prejudicial to the best interest of the service
(Jacinto v CA, 281 SCRA 657). Had the teachers availed
of their free time – recess, after classes, weekends or
holidays to dramatize their grievances and to dialogue
with the proper authorities within the bounds of the law,
no one – not the DECS, the CSC or even the Supreme
Court – could have held them liable for their participation
in the mass actions (dela Cruz v CA, 305 SCRA 303;
Secretary of DECS v CA, 342 SCRA 49). Back wages
may not be awarded to the teachers who were
ordered reinstated after the dismissal orders by
the DECS Secretary were commuted by the CSC to six
months’ suspension because neither were they
exonerated nor were they unjustifiable suspended
(Alipat v CA).
4. Right to information – Under Article III,
Section 7 of the Constitution, “The right of the
people to information on matters of public concern
shall be recognized. Access to official records,
documents, and papers pertaining to official acts as
well as to government research data used as basis
for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by
law.”
This is self-executory. Any citizen may invoke this
right before the courts, though Congress may provide for
reasonable conditions upon the access to information
such as those found in RA 6713 or the Code of Conduct
and Ethical Standards for Public Officials and Employees
(Gonzales v Narvasa, 337 SCRA 736). Since it is a right
guaranteed under the constitution, thus if a government
agency refuses to provide records, copies of documents,
a petition for mandamus to compel this agency to
provide such records may be instituted. When a
mandamus involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere
fact that the petitioner is a citizen and therefore part of
the general public which possesses the right (Legaspi v
CSC, 150 SCRA 530).
EXCEPTIONS:
1. State secrets, ex. regarding national
security matters, military information and
diplomatic communication;
2. Bank transactions under the Secrecy of
Bank Deposits Law;
3. Trade secret on account to the Intellectual
Property Law is classified as personal matters;
4. Enforcement matters, ex. matter of
apprehension, detention or the prosecution of
criminal elements prior to such apprehension or
prosecution; and
5. Those that are obtained by the government
officer in the course of his employment as
public officer, and which are generally ought
not to be made available to the public, ex. the
decision prior to the promulgation by the
court cannot be disclosed. So before its
official release, any leakage is a violation of law,
and in fact this is criminal in nature.
DUTIES OF PUBLIC OFFICERS
Together with the rights, certainly public officers
likewise must have duties. Two-fold duties are: (1)
Owing to he public solely; and (2) Owing to an
individual. A public officer is liable for damages arising
from the performance or non-performance if the duty is
owing to an individual. If owing to the public,
there is no liability on the principle of damnum
absque injuria (there is injury and damage but no
wrong is committed), so long as the public officer acts in
good faith. Also, he has responsibilities consistent with
the dogma of public accountability and thus they are
mandated to observe certain modes of conduct, which
are prescribed under RA 6713 or the Code of Conduct
and Ethical Standards for Public Officials and Employees.
The important provisions of this law are Sections 4, 5, 7,
8, 9
Section 4. Norms of Conduct of Public Officers:
[CPJPRNCS]
C - Commitment to public interest. This means that
public officers and employees must uphold public
100 | P a g e
 interest over their private/personal interest.
This also means that whatever resources/properties
of the government must be employed and used
efficiently and effectively.
Example: The use of government vehicles for official
purposes. The non-official use is a violation of this norm.
P - Professionalism. This means that the government
officer has to perform his duties with the highest
degree of excellence and skill and intelligence.
This means that they should avoid wrong
impressions as dispensers or peddlers of undue
patronage.
J - Justness and Sincerity. The need for public officers
to act with justness and sincerity in dealing with the
people. There should be no discrimination in
dealing with anyone, more so the poor and the
underprivileged. This would include a prohibition of
the grant of undue favors to anyone.
P - Political Neutrality. This means that regardless of
party affiliation or preference, the public official
must provide service to everyone without any
discrimination.
R - Responsiveness to the Public. This means not
only giving prompt and honest but also courteous
service to the public. This also includes giving
information about the processes, about the
policies of their office. This is in the spirit of
transparency and good governance, to ensure
openness of information.
The need for information about the policies, the
processes, and the systems being observed by a
government agency plus the need to simplify processes
to respond to the need to the public. You have also the
need to avoid redtape. Have you observed in quite a
number of offices, so many signatories? But the code of
conduct provides that as much as possible, there must
be only three signatories. So the more signatories,
the more chances that corruption exists.
N - Nationalism and Patriotism. Under this norm, the
need to patronize local products. The need
therefore to make use of local produce, avail of local
services, and to be loyal to the Republic.
C- Commitment to democracy. One indication of this
norm is the principle of public accountability, the
commitment to the democratic way of life. This
likewise means upholding civilian authority, and
its supremacy over the military.
S - Simple living. One of the bases for the lifestyle
check. This applies to the spouse as well as to the
members of the family. The public officer should live
a modest life appropriate to his income and other
sources, and should not be engaged in the
ostentatious display of extravagance.
Example: A clerk, receiving 10T/month but drives
around town with the latest model of Ferrari. The first
question that comes to your mind is how was he able to
purchase this kind of car?
Section 5. Duties of Public Officials and Employees:
1. To act promptly on letters and requests. This is
for the period within fifteen (15) working days
from the time he receives the letters, telegrams
or other means of communications. The duty for
him to respond promptly to whatever
communications received by him and in such
response, he must indicate his action taken on such
request. It does not need to be a favorable action so
long as there is an indication of what he has done on
such transaction. Violation of this duty is an
administrative offense, and you can be
administratively charged. (ADMIN LANG] dili
criminal
2. To submit annual performance reports. All
agencies are required to prepare, accomplish their
annual performance reports within forty-five
(45) working days from the end of the year. And
this report is in fact made available to the public.
This can be reproduced. Any private individual may
request for a copy of such document.
3. To Process papers and documents
expeditiously. The documents must as far as
practicable contain only three signatories. Or let
us say the head of office is not around, does this
mean that the operations should cease due to such
absence or that documents can no longer be
processed because of the lack of signatories? The
law requires that whenever the head is not
around, somebody has to take his place to act
on his behalf, with the authority to sign or approve
ordinary matters pertaining to their office.
4. To act immediately on the public's personal
transactions. Any private individual who wishes to
avail of the services of a government office must be
attended to promptly and expeditiously.
5. To make documents accessible to the public.
This is in relation to the right to information
mentioned earlier. This applies to documents which
are not classified as confidential in nature. In fact
these documents can be inspected by the public
within reasonable public hours.
Section 7. Prohibited Acts and Transactions of
Public Officers:
1. Financial and material interest. A public officer
cannot have a direct or indirect financial or
material interest in a transaction or contract
requiring the approval of his office. Let us say
you have the head of office, approving the
101 | P a g e
 transaction, requesting the contractor that he be
given a percentage (commission) of the project. This
is a violation of the Code of Conduct.
2. Outside employment and other activities
related thereto. Question is: May a government
lawyer engage in the private practice of his
profession, or let us say a government physician
operate his own clinic? The GENERAL RULE is that
no government employee shall engage in outside
employment, meaning they cannot hold, control,
manage or accept employment in a private
enterprise being regulated or supervised by the
government office, either as a broker, officer,
employee or even consultant. EXCEPTION when
the law expressly allows it. So there is an express
provision of law authorizing him to engage in such
outside employment.
But even in those situations where there is an
express grant to accept outside employment, there
should be no conflict of interest. What law provides
for such general grant? EO 292 in fact allows the Office
of the President, through the Department Secretaries,
the authority to grant permission to government
employees to engage in outside employment provided
there is no conflict of interest.
A public officer cannot recommend any
person to any position in a private enterprise,
which has a regular or pending official transaction
with their office. Let us say the head of the DPWH
advising or even suggesting (Note: Mere
suggestion is already punishable.) to the
trader transacting business with their office saying that
his daughter just graduated and to accommodate her by
making her as executive assistant. Is this allowed? No.
Take note that these prohibitions extend
for a period of one year after resignation,
retirement or separation from public office, except in the
case of engaging in private practice of their profession,
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 also apply.
Example: A public investigator (Ombudsman) who
resigns. Is he allowed to practice his profession in a case
before the Ombudsman? Yes, after a period of one
(1) year. Of course this prohibition does not apply
to other government offices.
3. Disclosure and or misuse of confidential
information. I have mentioned to you already as
one of the exception to the right of information, to
wit, confidential information acquired by a public
officer by virtue of his employment/office.
4. Solicitation or acceptance of gifts. This is
likewise related to RA 3019, Section 3. Take note
that public officers and employees are prohibited
from accepting or soliciting, directly or indirectly,
anything, any share, any gift, even entertainment,
ex. The wining and dining of a COA auditor.
Section 8. Statements and Disclosure. – This
requires government employees to file their
statements of assets and liabilities including their
net worth. This means not only their bank deposits but
also their cash on hand. There are three instances
where this requirement is mandated:
1. Within a period of thirty (30) days from date
of hiring;
2. On or before April 30 of every year;
3. Within thirty (30) days after separation
from service.
The disclosure of such assets and liabilities applies also
to the spouse and the dependents (minor
children).
Section 9. Divestment – The need for the public officer
to resign from his position in a private enterprise
whenever his acceptance of the public office would
cause conflict of interest. Such public officer must
resign from his position within thirty (30) days from
time of assumption of office, and in the case of
divestment, within sixty (60) days from such
assumption.
Under RA 3019, Section 3, we have the graft
and corrupt practices:
1. Act of the public officer in persuading or inducing
another public officer to commit a violation of
rules duly promulgated by confident authority
or an offense, or allowing himself to be persuaded
or induced. Let u say CA Justice Demetrio Demetria
who was dismissed by the SC for trying to induce the
prosecutor handling a drug trafficking case involving
his friend to dismiss the case. So this is a corrupt
practice.
2. Directly or indirectly requesting or receiving any
gift, present, share, percentage or anything of
monetary value in connection with any contract
or transaction between the government and the
private individual wherein the public officer, in his
official capacity, has to intervene; or
3. On account of a license, or permit to be
obtained by the public officer in behalf of the
private individual or for such license or permit
already obtained;
So you have here a prohibition for the public
officer/employees from receiving anything of monetary
value. You wonder, is there no EXCEPTION? There is, it
is found in Section 14 of RA 3019: “unsolicited gifts or
presents of small or insignificant value offered or given
as a mere ordinary token of gratitude or friendship
according to local customs or usage.”
Q: What is ‘significant’?
A: It depends on the values of the public officer.
If he has high standards, maiinsulto sya pagbinigyan
mo ng 100 pesos.
102 | P a g e

Take note that if the giving of the gift is in
connection to your position, that is a violation. The
giving of the gift must have nothing to do with your
position.
4. Causing undue injury to any party, including
the Government, or giving a party any
unwarranted benefits, advantage or preference in
the discharge of his official functions through
manifest partiality, evident bad faith or gross
inexcusable negligence;
5. Act of delaying despite reasonable demands to act on
the prior transaction in the hope of obtaining
something, ex. to receive a commission; Long delay
in acting on the transaction;
6. Public officer acquires private or material interest in
government transactions;
7. Knowingly approving or granting any license, permit,
privilege or benefit in favor of any person not
qualified; and
8. Divulging valuable information of a confidential
character, acquired by his office or by him on
account of his official position, to unauthorized
persons, or releasing such information in advance of
its authorized date.
Jurisdiction on violations of RA 3010:
OLD RULE: All violations under RA 3019 shall be
cognizable by ordinary courts.
NEW RULE: Under RA 7975, as amended by RA
8249:
Courts – Low-ranking officials below Regional
Directors, Salary Grade 26 and below
Sandiganbayan – High-ranking officials,
Regional Directors up, Salary Grade 27 and higher
V. Liabilities of Public Officers
LIABILITIES OF A PUBLIC OFFICER
Liabilities of ministerial officers:
1. NONFEASANCE – Neglect or refusal to
perform an act which is he officer’s legal
obligation to perform
2. MISFEASANCE – Failure to use the degree of
care, skill and diligence required in the
performance of official duty
3. MALFEASANCE – Doing, through ignorance,
inattention or malice, of an act which he had no
legal right to perform [NO LEGAL RIGHT TO
PERFORM]
Note: The fact that the public officer is the head of the
agency, does not necessarily mean that he is the person
ultimately liable in case of disallowance by COA or
expenditures or expenses for alleged questionable
transactions simply because he was the final approving
authority or the signatory to transactions. The reason
is that the head of the agency have the right to
rely to a reasonable extent on his subordinates and
on good faith of those who enter into transactions,
prepare documents, purchase supplies, disburse
vouchers, etc. He cannot be expected to scrutinize
every document that comes his way. Otherwise, he
will not be doing anything except to review these
voluminous papers. So long as the head of the agency
is himself not a participant or a conspirator in the
supposed questionable or anomalous transactions or has
not been negligent. It would be a bad precedent if all
heads of office will be punished by reason of the inaction
or gross negligence of their subordinate officers.
Albert vs. Gangan
356 SCRA 680
Here, petitioner Albert was then the President of
the National Home Mortgage Government Finance
Corporation. There was an audit conducted by the
COA, which disallowed certain transactions worth
millions and petitioner Albert was made the person
ultimately responsible because he was the head of
the agency. But it was in fact Albert who blew the
officials because he filed three cases against his
subordinates of these supposed anomalous
transactions. He filed cases before the Office of the
Ombudsman. The SC ruled, that although he was
the head of office, in fact he signed and
approved the documents and the transactions,
he had no knowledge of this illegal activity and
so he could not be held liable.
Arias vs. Sandiganbayan
359 SCRA 772
It would make a bad precedent if a head of office
plagued by all too common problems – dishonest or
negligent subordinates, overwork, multiple
assignments or positions, or plain incompetence – is
suddenly swept into a conspiracy conviction simply
because he did not personally examine every single
detail before affixing his signature as the final
approving authority. The head of office has to rely
on a reasonable extent, in good faith, on his
subordinate and on whoever prepared the bids,
the purchase orders and those who entered into the
transaction, in behalf of the agency. So long as the
head of office is not himself a participant or is not in
conspiracy with his subordinate, certainly the head of
the agency cannot be made responsible thereto.
On the other hand, no subordinate officer or
employee shall be civilly liable for acts done by him in
good faith in the performance of his duties, UNLESS
for (1) willful or negligent acts; and (2) Acts which
are contrary to law, public policy, etc. He shall be
liable for the latter even though he acted under the
orders and instructions of his superiors.
Moreover, a public officer who, under the
Constitution, is required to be a member of the Philippine
Bar as a qualification for the office held by him and who
may be removed form office only by impeachment,
cannot be charged with disbarment during his
103 | P a g e
incumbency. Further, such public officer, during his
incumbency, cannot be charged criminally before the
Sandiganbyan or any other court with any offense which
carries with it the penalty of removal form office, or any
penalty service of which would amount to removal. The
Tanodbayan, fiscal or any prosecuting officer should
forthwith dismiss any charge brought against said public
officer (In re: Raul Gonzales, 160 SCRA 771).
Q: Now, what about public officer who was wrongly
accused of the commission of a wrongdoing?
Can he recover damages? Let us say, there is a
statement or an imputation against this person as a
public officer and proven that the charge has no
basis whatsoever.
A: GENERAL RULE is that a public officer cannot
recover damages for charges of falsehood
related to the discharge of the official duties by
said public officer. The reason is that it is part of
his being a public officer and therefore he can be the
subject of the criticism. EXCEPTION is if the
imputation against his person borders on malice,
and he proves the same, thus, there will be
basis for the recovery of the public officer for
damages.
BAÑAS vs CA
325 SCRA 263
Facts: BIR Director Larin filed a case for tax evasion
against Bañas. What Bañas did was that he filed a
counter charge against Larin for alleged extortion,
that he demanded money from him, to return a
favorable action on his supposed tax liability. But the
extortion charge was never proven, no evidence or
whatsoever, to support his claim. Bañas merely did it
as a retaliation for the tax evasion case filed against
him. In fact, although Larin was the one who caused
the filing of the tax evasion case, at the time of the
investigation, he was not yet the BIR Director.
Issue: WON Larin may claim exemplary or moral
damages form Bañas?
Held: Yes, although the general rule is that a public
official cannot recover damages for charges solely
related to the discharge of his official duties, there is
an exception, that is, if the imputation against
the public officer is done with actual malice.
The TEST for actual malice is where there is
knowledge that the imputation or the statement
against the public officer is false or it was done
with reckless disregard of what is true. But
again, this must be done with care. The public officer
must prove that the grant of damages is due him.
Otherwise, this would discourage citizens from filing
cases of corruption against any government official.
And this would open the case for government officials
to just keep on filing harassment suits. Clearly, the
intent Bañas was to intimidate or harass, expose in
bad life, and to maliciously prosecute Larin.
DOCTRINE OF STATE IMMUNITY - The state cannot
be made liable in the performance of governmental
functions. It follows therefore that the agent of the state,
of course the public officers and employees performing
such governmental task or sovereign function must be
included within the protection. A suit is regarded as one
against the state where satisfaction of judgment against
a public officer concerned will require the state itself to
perform a positive act, such as appropriation of the
amount necessary to pay the damages. The rule does
not apply where the public official is charged in his
official capacity for acts that are unlawful and
injurious to the rights of others. Neither does it
apply where the public official is clearly being
sued not in his official capacity but in his
personal capacity, although the acts complained of
may have been committed while he occupied a public
position (Lansang v CA, February 23, 2000).
Another important concept or doctrine is the matter of
PUBLIC FUNDS.
Q: Are such funds subject to an order of attachment or
levy? Let us say, it is a judgment rendered against a
government employee. May the money of the
government, still in the hands of the public officer as
government funds, be held liable to pay the debtor?
A: No. Money in the hands of public officers, let us say
the cashier, although it may be due government
employees, is not liable to the creditors of these
employees in the process of garnishment. One
reason is tha the State, by virtue of its sovereignty,
may not be sued in its own courts except by express
authorization by eh legislature, and to subject its
officers to garnishment would be to permit indirectly
what is prohibited directly. Second, is that money
sought to be garnished, as long as they remain in
the hands of the disbursing officer of he government,
belong to the latter, although he defendant in
garnishment may be entitled to a specific portion
thereof (People v Enfermo, 476 SCRA 516).
Section 2 of RA 1405 or the Law on Secrecy of
Bank Deposits – All deposits of whatever nature with
banks or banking institutions in the Philippines, including
investments in books issued by the Government of the
Philippines, its political subdivisions and is
instrumentalities, are hereby considered as of an
absolutely confidential nature and may not be
examined, inquired or looked into by any person,
government official, bureau or office, EXCEPT:
1. Upon written permission of the depositor
2. In cases of impeachment
3. Upon order of a competent court in cases
of bribery or dereliction of duty of public
officials; and
4. In cases where the money deposited or
invested is the subject matter of litigation.
Note: In order for the Bank Secrecy Law to apply,
there must be a pending case before a court of
104 | P a g e
competent jurisdiction, ex. Ombudsman. For an in-
camera inspection, the requisites are:
1. A pending case before a court of competent
jurisdiction;
2. The account must be clearly identified;
3. The inspection must be limited to he subject
matter of the pending case;
4. The bank personnel and the account holder
must be notified to be present during the
inspection; and
5. Such inspection may cover only the account
identified in the pending case.
VI. Disability and Inhibitions of Public Officers
DISABILITIES OF PUBLIC OFFICERS
Under Article VI, Section 13 of the Constitution,
“No senator or member of the House of Representatives
may hold any other office or employment in the
government or any instrumentality or agency thereof
including a GOCC, and their subsidiary, during their term
without forfeiting their seat.” This refers to the concept
of INCOMPATIBLE OFFICE. The senator or
representative is qualified to assume the other office
provided that he relinquishes his seat as a senator or
representative because there is an incompatibility of
offices. There is antagonism that would result if the
same official is to discharge functions of both offices.
There is also the concept of FORBIDDEN
OFFICE. “The senator or representative will not be
appointed to an office which had been created or
emoluments thereof increased during the term for
which he was elected.” This applies even if at time of
the creation of office, or the salary of that were in
fact increased, he was no longer a senator or
representative. Let us say, a senator has a 3-year
term, and the Senator during his second year in office
resigns. In this case, the disqualification applies for the
entire duration of the 3-year term.
Section 14 of Article VI likewise provides that
“The senator or representative is not allowed to
personally appear as counsel in any court of justice
or before the electoral tribunal or before any
administrative or quasi-judicial body; neither is he
allowed to have direct or indirect financial interest in any
contract or franchise, or special privilege being given by
the government including GOCC and neither is he
allowed intervene in any matter pending before any
government office either for his own interest, personal or
pecuniary, or where he may by reason or on account of
his office, he may be required to intervene.”
Article IX-B, Section 7 applies to both the appointive
officers and employees and the local elective officials.
“The elective official is not eligible for appointment
or designation in any capacity to any public office
during his tenure.” This is the GENERAL RULE. The
EXCEPTIONS are: (1) When there is an express
provision by law; and (2) When required by his office.
Let us say, a city mayor. The term is 3 years, and in
fact he is appointed during such tenure. During his
second year, he got appointed as Presidential Adviser, is
this valid? Certainly not. But let us say he accepts the
position as Presidential adviser when he was no longer
the local chief executive, for he resigned as mayor
during his 3rd year, this is a valid appointment.
Flores vs. Drilon
223 SCRA 568
The Bases Conversion and Development Act, R.A
7277, Section 13 provided that the mayor of
Olongapo City, at the time Richard Gordon, shall also
be the chair of this SBMA. Is he qualified? The
argument was that the LGC, specifically Section
94, permits the appointment of local elective
officials to another position in government if so
allowed by law. SC held that there was a violation
of Article IX-B, Section 7. The LGC is not
determinative of the Constitutionality of Section 13 of
R.A 7227. The Constitution can never be repealed by
a mere provision of law. The law should have
mentioned that it is an ex-officio capacity that he has
been designated or appointment but nothing in that
sort was mentioned in the law.
Lorenzana vs. Fajardo
462 SCRA 1
Facts: Respondent Fajardo is a legal officer of the
Manila Urban Settlement Office and while occupying
such position, he accepted an appointment as a
member of the PLEB, the Peoples Law and
Enforcement Board, charged with taking cognizance
of citizens complaint. Also, at the same time, he
accepted a case in the private practice of his
profession as a lawyer. More than that, he also
became a member of the Lupon Tagapamayapa of his
Barangay.
Held: He violated Article IX-B, Section 7(2) of the
Constitution because of his unauthorized practice
of law profession and for accepting employment
as a member of PLEB. Nowhere in the law creating
the PLEB was there an authority for the member, an
appointive officer, to accept another position.
However, there is no violation for being a member of
the Lupon of his barangay because this is expressly
allowed by Section 406 of LGC.
Now what about the matter of the receipt of
the public officer of compensation? Compensation
here may be in the form not only of salary but also an
honorarium or per diem. The general rule is that
public officers or employees should not receive
additional, double or indirect compensation.
Exception to the rule is if there is a law allowing
payment of such services. In this case, the LGC
also allows the member-officer to receive this
compensation.
105 | P a g e
Under Article VII, Section 13 of the Constitution, “The
President, Vice-President, members of the cabinet, their
deputies and/or assistants shall not, unless otherwise
provided in the Constitution, hold any other office.” The
prohibition extends not only to positions in the
government but outside of government.
Q: What are those provisions in the Constitution
authorizing these executive officials to hold this
additional duty without violating art 7 sec 13?
1. Article VIII, Section 8 – Secretary of
Justice also a member of the Judicial and Bar
Council
2. Article, VII, Section 3 – Vice-President
also appointed by the President as member
of the cabinet
3. Article XII, Section 9 – President as the
head of the Independent Economic and
Planning Agency.
Note: Even in those cases where the Constitution itself
authorizes the cabinet member, or the President, or the
Vice-President to hold another office, still, he/she is
not entitled to receive additional, double or
indirect compensation because he is already paid
on account of his/her principal office, ex. As
Department Secretary
Civil Liberties Union vs. Executive Secretary
February 22, 1991
Then President Corazon Aquino issued EO 284,
dated July 25 1987, authorizing respectively the
holding of a cabinet member of other government
offices or positions. The court ruled that the
prohibition against holding dual or multiple offices or
employment under Article VII, Section 13 must not,
however, be construed as applying to posts occupied
by the Executive officials specified therein, without
additional compensation in an ex-officio capacity as
provided by law and as required by the primary
functions of said officials’ office. The reason is that
these posts do not compromise “any other office”
within the contemplation of the constitutional
prohibition but are properly an imposition of
additional duties and functions on said officials. If the
functions required to be performed are merely
incidental, remotely related, inconsistent,
incompatible, or otherwise alien to he primary
functions of a cabinet official, such additional
functions would fall under the purview of “any other
office” prohibited by the Constitution (Civil Liberties
Union v Executive Secretary, February 22, 1991).
National Amnesty Commission vs. COA
437 SCRA 655
Facts:
Petitioner National Amnesty Commission (NAC) is
a government agency tasked to receive, process and
review amnesty applications. It is composed of 7
members. It appears that after personally attending the
initial NAC meeting, the 3 ex officio members turned
over said responsibility to their representatives who were
paid honoraria. However, NAC resident auditor
disallowed on audit the payment of honoraria to these
representatives pursuant to a COA Memorandum. The
COA alleged that representatives lack the authority to
attend NAC meetings in behalf of the ex officio members.
Issue: WON the representatives of ex officio members
are entitled to receive honoraria
Held:
NO. Position of NAC[National Amnesty
Commission] is against the law and jurisprudence. The
COA is correct that there is no legal basis to grant per
diem, honoraria or any allowance whatsoever to NAC ex
officio members’ official representatives.
The representative cannot be considered de facto
officers because they were not appointed but were
merely designated to act as such. Also, they were
not entitled to something their own principals are
prohibited from receiving.
*Appointment – Selection by proper authority of an
individual who is to exercise the powers and functions of
a giver office
*Designation – merely connotes an imposition of
additional duties, usually by law upon a person already
in public service by virtue of an earlier appointment.
- does not entail additional benefits or
grants
Ex-officio members of NAC designated
representatives to attend meetings in the
formers’ behalf. These representatives demanded
that they be paid honorarium and per diem. SC
held that these representatives who were all
appointive officials with ranks below Assistant
Secretary are covered by two constitutional
prohibitions. First, they are not exempt from the
general prohibition under Article IX-B, Section 7
because there is a law or administrative order
creating a new office or position and authorizing
additional compensation therefore. The
representatives assumed their responsibilities not
by virtue of a new appointment but by mere
designation from the ex-officio members who
were themselves designated as such. Second,
they are also covered by the prohibition imposed
on the President and his official family. The
laws, rules or prohibitions that cover the ex-
officio member apply with equal force to his
representatives. The representative cannot
have a better right than his principal.
Dela Cruz vs. COA
371 SCRA 157
While petitioners are not among those officers
mandated by law to sit as members of the National
Housing Authority Board, they are “alternates” of
the said officers, “whose acts shall be
considered the acts of their principals.” Since
Executive Department Secretaries, as ex-officio
members of the NHA Board, are prohibited from
106 | P a g e
receiving “extra” or additional compensation, whether
it be in the form of a per diem or an honorarium or an
allowance, it follows that petitioners cannot likewise
be entitled to receive such compensation. A contrary
rule would give petitioners a better right than their
principals.
Bitonio, Jr. vs. COA
425 SCRA 437
Since the ex-officio member is prohibited from
receiving additional compensation for a position
occupied by him in an ex-officio capacity, so is his
representative likewise restricted.
II. PUBLIC CORPORATIONS
CORPORATION – It is an artificial being created by
law, having its rights, powers or attributes provided by
law.
Two Kinds:
1. PRIVATE CORPORATION - exists for personal
ends or objectives, for the private gain of the
members
2. PUBLIC CORPORATION - formed and
organized for the government to assist the
State in carrying out and for the
accomplishment of its civil and public works.
a. QUASI CORPORATION - exists as a
narrow agency, meaning, limited corporate
powers, in order to accomplish part of the civil
works of the state
b. MUNICIPAL CORPORATION - has this
element of local government, which is
absent in a quasi corporation. Basically, it is
an agent of the state in carrying out
governmental task, ex. to regulate the affairs
of the community, which the state cannot
conveniently perform
Example: Provinces, the LGU, cities,
municipalities, barangays as well as ARMM.
These are what we are going to discuss.
Two-fold objectives:
1. To carry out governmental
function, ex. Power to tax
2. To act as the agency of the
inhabitants of the community to
regulate local affairs, similar to a
business enterprise
Two-fold characteristics:
1. As a body politic that assumes
governmental or sovereign task
2. As a body corporate that assumes
non-governmental or proprietary
task
So a municipal corporation is a body politic and
corporate constituted by the incorporation of the
inhabitants of the community partly to perform
governmental task, civil works, but chiefly as an entity to
administer or regulate the internal affairs of the
community. Therefore, it exists both as a government
instrumentality and likewise it acts just like any business
entity. So that is why you have this concept of local
government.
Power to Create Municipal Corporations
Now, the power to create a municipal corporation, a
local government unit, is essentially legislative; but
the power may be delegated by Congress, in a limited
sense, to municipal corporations. The basis is Article
X, Section 10 of the Constitution, which provides for
the requirements for the constitution or incorporation
of a municipal corporation. Hence, “No province, city,
municipal, or barangay may be created, divided,
merged or abolished except in accordance with the
criteria established in the LGC and subject to the
approval of the plebiscite in the political unit directly
affected.” In relation to Section 6 of the LGC, the
authority is now given and delegated to the
Sangguniang Panlalawigan of the provinces and the
Sangguniang Panlungsod of the city, to create a
barangay. The Sangguniang Bayan has no power to
create a barangay.
Under Section 7 of the LGC, which states the
indicators for the incorporation or creation: (1)
Income, (2) Population, (3) Territory, (4) Corporate
name; and (5) Approval of the majority in a plebiscite
in the units directly affected.
Income
For cities, the minimum annual average income for
the last two (2) consecutive years, to have a valid
creation, is P 20 Million in accordance with Section
450 of LGC. For highly urbanized cities, the
minimum income requirement is P 50M and for
provinces, P 20M in accordance with Section 461 of
LGC.
In Alvarez v Guingona, January 31, 1996, the issue
was whether the internal revenue allotment being
received by the municipal corporation should be
considered in the computation of the average annual
income? Let us say, for purposes of determining
whether the municipality may validly be converted
into a city, (so from a municipality to a city). SC held,
Yes. It should be included for the last 2 years of such
municipality.
Population
For a barangay and other areas not considered
highly-urbanized, the minimum population
requirement is 2,000 unless it is located in
Metropolitan Manila or in highly-urbanized
cities. In the latter case, it is 5000. For a
107 | P a g e
 municipality, under Section 442, 25,000. For the
city, under Section 450, is 150,000. But if it is a
highly urbanized city, 200,000 under Section 452.
For a province, under Section 461, 250,00.
Note: These indicators of income and population
must be verified by the proper agencies of the
government, like the Department of Finance in the
matter of income, and the NSO in the matter of
population.
Effect of Creation: The annexed corporation becomes
a part and parcel of the annexing corporation.
Municipal of Kapalong vs. Judge Moya
166 SCRA 71
Facts: President Garcia created the municipal of
Sto. Tomas taken from the portion of the
Municipal of Kapalong and so there was this
conflict of boundaries between the municipals of
Kapalong and Sto. Tomas. Sto. Tomas filed a
complaint against Kapalong for the settlement of
the boundary dispute and recovery of collected
taxes and damages. It asserted jurisdiction over
a portion of land formerly belonging to Kapalong
where it colleted taxes.
Held: The executive branch has no power to
create a municipal corporation. The power to
create a municipal corporation is essentially
legislative in nature. The President has no such
power. In fact, there is no municipal of Sto.
Tomas to speak of. It has no right, no cause of
action and no corporate existence at all. Under
Rule 3, Section 1 of the Rules of Court, only
entities authorized by law can be parties in civil
action.
Jurisdiction
Q: If the conflict is between two barangays, where
should this issue be brought for settlement?
A: Under Section 118, if the two barangays having such
territorial conflict belong to the same municipality or
city, the dispute must be submitted to and resolved
by the Sanguniang Panlungsod or the Sanguniang
Bayan. If these barangays belong to different
municipalities or different adjoining cities, the
conflict of boundaries must be submitted to and
settled jointly by the Sangunians of both municipal
corporations.
Example: Barangay A has a boundary conflict with
Barangay B but Barangay A belongs to Municipal 1 and
Barangay B belongs to Municipal 2. Therefore, the
matter of settling this boundary dispute must be
submitted to the joint sanggunians of both municipals 1
and 2. Similarly, if component cities or municipalities
belong to the same province, the conflict has to be
submitted to the Sanguniang Panlalawigan of the
province. But if these municipalities belong to different
provinces or the component cities belonged to different
provinces, the conflict must be settled jointly by the
sanggunian of both provinces.
Note: The matter of the settlement of territorial conflict
or boundary dispute between adjoining municipal
corporations is administrative in nature. So this is not
within the original nor exclusive jurisdiction of the court
but rather this should be settled in accordance with
Sections 118 and 119 of the LGC. Now the court comes
in only when the parties are not satisfied with the
decision rendered by the respective sanggunian. Under
Section 119, this conflict may be submitted for
settlement by the court for appeal. There is a need
therefore for amicable settlement within a period of fifty
(50) days from the time of the submission of the dispute
to the sanggunian. If there be no such amicable
settlement and a certification to that effect is made,
again within fifty (50) days, the sanggunian shall task to
decide the conflict without prejudice to the parties’ right
to appeal under Section 119.
Patricio Tan vs. COMELEC
142 SCRA 727
This refers to the creation of a new province to be
known as Negros Norte and this supposed new
province is to be taken from the territorial area of the
province of Negros Occidental. Again, you have to
refer to Article X, Section 10 of the Constitution.
What is the essential requirement for the validity of
its creation; it must be subject to the limitations
provided in the LGC and the conduct of the plebiscite
in the political unit directly affected. Certainly, there
must be a conduct of plebiscite. What happened here
was that there was indeed a conduct of plebiscite but
this was limited to the proposed territorial area of
Negros Norte. And so the SC declared that such is
unconstitutional because the Constitution expressly
requires that the plebiscite be done in the entire
political unit. Meaning, the qualified resident voters
of the entire province of Negros Occidental must
participate.
MUNICIPAL CORPORATION DE FACTO OR
MUNICIPAL CORPORATION DE JURE
In our study of public officers, we encountered
the concepts of de facto and de jure public officers. Is
this concept applicable to municipal corporations?
Yes! There is such thing as a municipal corporation de
facto. In fact this is an exception to the rule, which
may exist by prescription, by long passage of time.
Let us say, open and undisputed possession or an
exercise of powers without any question from the
patronage.
Municipal of San Narciso of Quezon vs.
Mendez
239 SCRA 12
108 | P a g e
Facts: President Garcia issued EO 20 sometime
on August 20, 1959, creating the municipal
district of San Andres taken from the territorial
area of Quezon province. The adjoining municipal,
the municipal of San Narciso, challenged the
validity and legality of the creation of San Andres
on the ground that the executive, the president,
has no power to create such municipality. But
what happened here was that the petition was
made only after 30 years, in 1999. So for a long
time, there was no question as to validity of the
corporate existence of this municipality of San
Andres.
Held: The municipal of San Andres has attained
the status closely approximating that of a de facto
municipal corporation because for a time, it
continued to exercise and assume corporate
municipal powers, without any question coming
from the state and with acquiescence from the
population. its continued existence was allowed. In
fact, the municipal of San Andres was classified
after 5 yrs from its creation as a 5 th class
municipality on account of having reached the
minimum income requirement. Further in 1978,
this municipal was likewise covered by the 10 th
municipal circuit court . And so clearly it has at
least attained the status of municipal de facto.
Take note that under Section 442 of the LGC,
municipalities existing as of the date of effectivity
of the LGC, shall continue to exist and operate as
such. Whatever defects in the creation of this
questionable municipal corporation have been laid
to rest under the authority of Sec 442. In other
words, Section 442 grants the status of a de jure
municipal corporation. More than that , when the
1987 Constitution was adopted, you have an
ordinance appended to it apportioning legislative
districts throughout the country.
Municipal of Jimenez in Misamis Occidental
vs. Baz
265 SCRA 183
In 1949, President Quirino issued EO 258 creating
the Municipality of Sinucaban. 40 years after, the
adjoining municipal, Municipality of Jemenez,
questioned its corporate existence, the legality of
the creation of the Municipality of Sinucaban on
the ground that the executive, the president, has
no power to create such municipal. The court in
reiterating its earlier ruling declared that the
Municipality of Sinucaban has been conferred the
status of a de facto municipal corporation because
in fact the public has agreed and recognized this
legal existence. Now the court further observed
here that a year after the creation, both the
Municipality of Sinucaban and the Municipality of
Jemenez entered into an agreement defining their
respective territorial boundaries. So clearly the
Municipality of Jemenez is already in estoppel as
it had recognized this Municipality of Sinucaban,
which has at least acquired the status of a de
facto municipal corporation.
Q: What are the requisites of a valid de facto
municipal corporation? (2004 Bar)
A: One requirement is that, there must be a valid law
authorizing the incorporation of the municipal
corporation and just like your study of public officers,
there must be good faith. In other words, an attempt
in good faith to organize this municipal corporation
under this law or ordinance creating, let us say a
barangay. There must be compliance with law and
certainly assumption of corporate powers.
Q: When does the existence of a municipal
corporation commence?
A: Under Section 14, the corporate existence of a
municipal corporation begins upon the election and
qualification of the local chief executive. Say, the
Mayor, in the case of the city or the barangay captain
in the case of the barangay, the majority of the
members of the Sanggunian. That is the general
rule, unless some other time is provided in the law
creating the municipal corporation. If this is the case,
it commences in accordance what such law.
Note: The validity of incorporation cannot be attacked
collaterally. It may be attacked in a direct proceeding
and is known as QUO WARRANTO. Anybody questioning
the validity of corporate existence of the municipal
corporation must initiate this through the state, a quo
warrant proceedings within a period of 5 years. If the
municipal corporation’s existence is a nullity, then it may
be subject to attack whether direct or collateral.
However, the concept does not apply when there is an
estoppel, or one who, deals with the municipal
corporation. In fact, one who accuses and then
recognizes it as a corporate entity cannot be a party of a
petition questioning the existence of the municipal
corporation.
Now, I have mentioned to you that the power to
create a municipal corporation is essentially
legislative in nature. The executive does not have the
power, unless applying the case of Sinakaban, where
there is an application of a de facto municipal
corporation. But generally, if the power to create a
municipal corporation is conferred to legislature,
therefore it has the power of control. Right? The
power of control certainly includes the power to
likewise alter what it has created. Thus it may in fact,
change, alter, modify, territorial boundaries or
jurisdiction of municipal corporation.
Let us say, years ago when election is approaching,
politicians brought the ideas of having Davao City
Districts 1,2 3, because you know politicians like their
own kingdom. In fact, this was never accepted by the
population here in Davao. But, nonetheless, this
shows the power of the legislative to create a
municipal corporation. It may, let us say, divide into
two or more existing municipal corporations, like the
case of Davao City. This is at the discretion of the
legislature, it being the creator of a municipal
corporation.
You know, a municipal corporation may in fact be
abolished and may be merged to another. Merger of
109 | P a g e
two or more municipal corporations is of course
subject to other requirements, that is, the conduct of
plebiscite to be participated by the population in the
political units directly affected.
So there will be abolition, merger or even creation of
municipal corporation. So, if the legislative has this
power of control, again you must always remember
that such power of control by legislature is also
dependent upon the kind of activity or function being
performed by the corporation.
FUNCTIONS OF MUNICIPAL CORPORATIONS
In a GOVERNMENTAL or SOVEREIGN function, the
municipal corporation implements several
governmental functions such as the power to tax, the
manner of maintaining the peace and order and etc.
In its NON-GOVERNMENTAL OR PROPRIETARY
function, the municipal corporation administers the
affairs of the community and in fact it is allowed to
enter into business undertakings subject to
Constitutional limitations. In other words, the
authority of the State to control the municipal
corporation would now depend on the manner of the
functions or the nature of the task being performed
by the municipal corporation.
The power of control of legislature extends to all
governmental functions but it does not have this
power of control over such activity being performed
by the municipal corporation, in its non-governmental
function. In governmental functions, municipal
corporations cannot complain if legislature requires it
to produce a list of expenditures or require the former
to allot budget for the construction of bridges or
roads. But if property was acquired through non-
governmental capacity, legislature cannot direct the
municipal corporations since the fund was derived
from profit of the corporations in its business
transactions. Legislature is now subject to the
following constitutional limitations:
1. Non-impairment of contracts – In the
performance of the municipal corporation of a
non-governmental task similar to any business or
entity or enterprise, whatever contracts it entered
into with some other authority or people must be
respected by the State.
2. Uniformity of law on the passage of a special or
local legislation.
3. Property cannot be confiscated without just
compensation – Just like any business entity or
enterprise, the state through the legislature,
cannot take over this enterprise without
observing the constitutional requirements.
However, Congress has complete authority or control
over the property which the municipality has acquired
in its municipal or governmental character. So it may
therefore take over such property without payment of
just compensation. But if it is in the exercise of the
municipal corporation of its non-governmental power,
there must be payment of just compensation in
accordance with the constitution. Or if the State does
not take over such property, but nonetheless it
wishes to regulate it, it can only do that through a
valid exercise of police power. It can create but it
cannot take over, unless it be through the exercise of
the power of the eminent domain by the municipal
corporation. So, certainly the legislature has full
control over city roads, buildings, streets and other
public facilities.
Example: Governmental Functions
1. Hiring of employees. These officers are subject
to the CS Law. It is a governmental task unless there
is an entity created by the city government, through
passage of an ordinance by the Sanggunian, creating
a business entity that includes the appointment of
personnel to this entity, then, it cannot be subject to
intrusion by the State.
2. Construction of roads. Say, there is a proposal to
have a Mindanao Railway Authority, connecting the
provinces and cities of Mindanao. Let us say here in
Davao, the legislature enacts this law providing that
certain roads in Davao, identifying roads created by
the State and directing the state to turnover these
roads in order to establish and operate this Railway
in Davao City and the Davao provinces. May the city
government contest this on the ground that there
must be payment of just compensation? Yes. The
construction of road is a governmental function,
therefore under the power of control of legislature.
The State has all the right to pass such law directing
the city government to turnover certain roads in
order to have this transport system be operated.
3. Public revenues or resources of municipal
corporations. GENERAL RULE: These are subject to
the control of the state. EXCEPTION: If that public
revenue has already been earmarked or appropriated
for certain specific public purpose or when the
creditors have acquired vested rights thereto. In
these instances, the state through the legislature
cannot anymore have control over such public funds.
How would you say that a public fund of the
municipal corporation is already appropriated? When
it is no longer part of such common fund. How?
Through the passage of an appropriation ordinance,
in all cases, by the Sanggunian.
So, in the absence of an ordinance, whatever
disbursement made by the municipal corporation is
withuot authority, therefore illegal. It is an illegal
disbursement of public funds, and may be a ground
for disciplinary and criminal action against such
official. So here, if an appropriation ordinance is
passed by the Sanggunian appropriating certain
funds, the legislature cannot have this power of
control over such public funds appropriated, or let us
say a municipal corporation enters into a
construction agreement. Certainly, the contractor is
the creditor if it has already rendered services and it
must be paid. The creditor in this case, the
110 | P a g e
 contractor, has already acquired a vested right over
such fund, and cannot anymore be the subject of
control by the legislature. Before the municipal
corporation can enter into such an agreement for the
construction of a public facility, one important
requisite is that there must be a certification that
funds are available and are to be appropriated for a
certain purpose.
Example: Non-governmental Functions
1. Operation of cemetery and public markets. Now,
can the state through the legislature require the city
to transfer a public cemetery or public market to
some authority that it creates that would be needing
this public cemetery or this public market? No. The
state cannot simply take-over or confiscate this
property because it is not the owner thereof.
Therefore, it must respect the property rights of the
city.
2. Operation of light supply and electric facilities.
There creation of these facilities is non-governmental
but the matter of determination by the rates and
charges thereof may be regulated and may be
subject to the control of the legislature.
Q: May Congress deprive the municipal corporation of
its right of Local Government?
A: No. At the outset, that what distinguishes a
municipal corporation from a quasi-corporation is
that the latter does not have this element of local
government. Take note of Article X, Section 1 of the
Constitution, the territorial and political subdivisions
of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays and there shall
be created ARMM. There was supposedly Cordillera
Autonomous Region (CAR). But it does not exist right
now. There was this plebiscite conducted but only
one province, Ifugao, signified to join the CAR. So
the Constitution has recognized these entities as the
territorial and political subdivisions of the Republic of
the Philippines. Therefore, Congress cannot deprive
the municipal corporations unless the Constitution is
amended.
Relationships with municipal corporations:
1. President to municipal corporation – Power of
supervision (Article X, Section 4 of Constitution)
2. President to ARMM – Power of supervision
(Article X, Section 16)
3. Legislature to municipal corporation – Power of
control
Under Article X, Section 4, you have the President who
shall exercise general supervision over local government.
The provinces with respect to component cities,
municipalities and cities, with respect to component
barangays, shall ensure that component units are within
the prescribed powers. The duty of the President is to
ensure that laws are observed by the municipal
corporation. This is known as the power of supervision as
distinguished from the power of control. The legislature
has the power of control, while the Office of the
President has the power of supervision. In the exercise
of the President of the power of supervision, certainly
the President cannot interfere with the operations and
management of the LGU, because to do so would already
be classified as a power of control and not anymore of
supervision.
Q: What happens if there is no compliance with what is
required by Article X, Section 4?
A: The power of supervision is not inconsistent with the
power to discipline. The President’s supervisory
power includes the power to order an investigation
and can order the conduct of an administrative
disciplinary action if the duties are not observed by
the LGUs, or their chief executive.
Now, this is separate from the power of control exercised
by the legislature, because the power of control is in fact
the authority of this legislature to order that the act be
undone if not in conformity of law. It is only consistent
with the power of control that the legislature direct this
local executive to reverse, modify, etc. This is one of
control and not of supervision. The power of supervision
by the President does not include the power to order the
local chief executives to perform such acts in a specific
manner because these acts belong to the local chief
executive.
Hence, the power of SUPERVISION involves mere
overseeing or the power of an officer to see that their
subordinate officers perform their duties. If not, the
former may take such action or steps as prescribed
by law to make them perform their duties. It also
involves the power to conduct investigations of erring
officers. On the other hand, the power of CONTROL
is the power to alter, modify, nullify or set aside what
a subordinate officer had done in the performance of
his duties and to substitute the former’s judgment for
that of the latter.
ADMINISTRATIVE AUTONOMY vs POLITICAL
AUTHORITY
2 Kinds of Autonomy
1. Political autonomy (Article X, Section 18)
2. Administrative autonomy (Article X, Section 2)
Distinctions:
1. Article X, Section 2 defines this concept
of ADMINISTRATIVE AUTONOMY. Under here, the
territorial and political subdivisions shall be enjoying
local autonomy. Now, you have also under Article X,
Section 18, the authority of Congress to enact an
organic act for the creation of an autonomous region
including the establishment of the basic structures of
government, which is also known as POLITICAL
AUTHORITY, the authority to define the basic
structures consisting the legislative, the executive,
the judiciary.
111 | P a g e
2. The ADMINISTRATIVE AUTONOMY is
synonymous to the concept of decentralization of
administration. This refers to the transfer of power
from the central government to the grassroots level
or the LGUs and in fact this is why the Local
Government Code was enacted to grant autonomy to
the LGUs. POLITICAL AUTONOMY is broader in
scope. It includes this concept of administrative
autonomy and the authority to put up and to
establish the basic structure of government, similar
to that in the national level. There is here the
decentralization of administration but also the
decentralization of political powers, usually and
traditionally exercised by the national government.
This region is even a semblance of mini-state having
its own basic structure, the legislative, the executive,
the courts. We also have the legislative assembly of
the ARMM created a new province taken from
dividing the territory of Maguindanao. You have also
the authority to create its own Sharia courts in
accordance with law, which have the authority to
hear and decide cases familiar to their traditions and
customs, like the Sharia courts.
CONDUCT OF DISCIPLINARY PROCEEDINGS
Section 60. Grounds for disciplinary action against
local elective official
1. Disloyalty to the republic
2. Culpable violation of the Constitution
3. Dishonesty
4. Oppression
5. Misconduct in office
6. Dereliction of duty
7. Commission of crime involving moral turpitude or
a crime punishable by prision mayor
8. Abuse of authority
9. Unauthorized absence for 15 consecutive days
10. Such other grounds as other laws may provide
These grounds for taking an administrative action is
applicable only to local chief executives and not to the
members of Sanggunian, because the former are in the
service of their constituents 24 hrs a day. That is the
presumption. So you have also some other grounds as
provided by law.
Section 61. Form and Filing of the Administrative
Complaint. There is here a concurrence of jurisdiction.
There can be administrative agencies of the government
that have concurrent authority to try and decide
administrative cases against such local official.
1. If the complaint is filed against a Vice-Governor
or Members of the Sangguniang Panlalawigan, it
should be filed before the Office of the President.
2. If against the Mayor or the Vice-Mayor of highly
urbanized cities, to the President.
3. If against a city councilor, before the Office of
the President.
4. Municipal Mayor, Vice-Mayor, members of the
Sangguniang Bayan, before the Sangguniang
Panlalawigan, because the municipality is a
component unit of the province.
5. A barangay official, before the Sangguniang
Panlungsod or Sangguniang Bayan.
Here, the decision of the Sangguniang
Panlungsod in cases filed against a barangay official is
already final and executory. Take note that this applies
only to highly urbanized cities because the decisions that
may be rendered by the Sangguniang Bayan of a
component municipality may still be the subject of
review before the Sangguniang Panlalawigan. If the
decision is rendered by the Sanggunian Panlalawigan,
against a member of the Sangguniang Bayan or
Municipal Mayor, if adverse to the elective official, he
may appeal to the Office of the President. But what
about the decision rendered by the Office of the
President in cases involving local elective officials of
highly urbanized cities or independent cities? The
decision of the Office of the President is final and
executory, but nonetheless, if the decision is said to be
tainted with law, so there are questions grounded on
law, the same may be elevated to the SC.
Section 62. Notice of Hearing – The local elective
official is given a period of fifteen (15) days to file his
counter-affidavit or answer. What is important here is
that there can be no investigation to be conducted within
ninety (90) days prior to election nor may there be an
issuance of preventive suspension within such time
frame. Supposing prior to the 90-day prohibitive period,
a preventive suspension is issued. What happens to this
preventive suspension? It is automatically lifted upon the
start of said period.
Section 63. Preventive Suspension – The maximum
preventive suspension of a local elective official is sixty
(60) days, for a single charge. If he is facing so many
administrative charges, it should not exceed 90 days.
The preventive suspension shall be issued by the
governor in cases lodged against any local elective
official of a component city or a municipality. But where
the action is against an elective official of a highly-
urbanized city, the same to be filed before the Office of
the President and therefore it should be the DILG
Secretary that has the authority to issue the preventive
suspension, applying the DOCTRINE OF QUALIFIED
POLITICAL AGENCY or the ALTER EGO PRINCIPLE.
Section 64. Effects of Preventive Suspension. The
salary cannot be anymore received by the suspended
local elective official placed under preventive suspension.
In the event that he is exonerated, he may be entitled to
payment of such salary and benefits accruing during
such period of preventive suspension.
Section 65. Rights of the Respondent – The
respondent has the right to cross examine the witnesses
against him for him to know the evidence and charges
against him.
Section 66. Form and Notice of Decision – The
decision must be in writing, stating clearly and distinctly
112 | P a g e
the facts and the reasons of the decision. This is in
compliance with the cardinal principle of due process.
You know, in administrative law, one of the cardinal
rights of the respondent is that the decision must be
based on evidence in record and known to the parties.
Whenever there be a decision imposing a sanction and
that sanction is for the suspension of the local elective
official, the suspension shall not exceed a period of six
(6) months for every administrative offense but in no
case should it exceed beyond the unexpired portion of
the term of office of such local elective official.
Q: What then is the effect of this imposition of
suspension as a sanction? Would this be a bar to his
candidacy for any elective position?
A: The LGC provides that such imposition of suspension
is not a bar to his candidacy for any elective position
unless there is in fact a penalty of removal or
dismissal from the service in the administrative case.
Section 67. Administrative Appeal – Appeal may be
taken from the decision of Sangguniang Panlalawigan to
the Office of the President. The decision of the Office of
the President can be a subject to a motion for
reconsideration. If it is still denied, after the lapse of the
period, it becomes final and executory. It can be raised
before the court on the grounds of law. What about a
decision rendered, say by the Sangguniang Bayan
involving cases against barangay officials? It may be
lodged before the Sangguniang Bayan or Sangguniang
Panlungsod. If the Sangguniang Bayan of a municipality
is a component unit of a province, it follows that the
decision of the Sangguniang Bayan of that municipality
may be appealed to the Sanggunian.
Section 68. Execution Pending Appeal – This
pertains to the effect of filing of an appeal from a
decision rendered in the administrative case. The
decisions can be made executory despite the filing of an
appeal. But this is just the exception to the general rule.
In AdministrattttMay the decision be made executory
despite the filing of appeal? The GENERAL RULE is that
the filing of an appeal shall prevent the decision from
becoming executory unless the law itself expressly
provides for the decision to be executory. So LGC in fact
provides that exception. Likewise, under the Revised
Administrative Code and the Civil Service Law, the
decision can already be made executory even if an
appeal be taken.
Regidor vs. Chiongban
173 SCRA 527
Tangub City Mayor Regidor, together with the
Vice-Mayor and councilors of Tangub, were charged
administratively before the Sanggunian Provincial
Board. Now the respondent governor here placed
them under preventive suspension. The mayor, vice
mayor, and councilors protested. Do they have basis
to complain? Yes. The one who has power to take
cognizance of a complaint is not the governor, not the
province, but rather the Office of President. So the
governor does not have the power to issue preventive
suspension. The power of the governor in the matter
of the issuance of preventive suspension is over
admin cases filed against municipal elective official
because these municipal are component units of the
province. Clearly it is not within the authority of the
governor to place them under preventive suspension.
Joson vs. Torres
290 SCRA 279
Facts: The Vice-Governor and the provincial board
member filed a complaint against petitioner Governor
Joson for grave misconduct and abuse of authority
because the latter tried to intimidate the Vice-
Governor and the members of the Sanguniang
Panlalawigan in the signing or approval of a bank
loan. The governor was required to answer by the
Office of the President but he filed a motion for
extension of time to file such answer. Three
extensions was in fact given to Governor Joson and
so because of the failure to file answer, the governor
was placed under preventive suspension and he now
claims that this is a violation of due process because
the law under Section 63 of LGC provides that the
preventive suspension can only be issued when there
is a joinder of issue. Now is the claim of the governor
proper?
Held: Take note the failure to file the answer was
the sole fault of Governor Joson. In fact, he was
accorded several opportunities to file his answer but
he failed to do so. Clearlyl, there was already a
waiver to file the same. There is already here a
joinder of issue because he was given an opportunity
to answer but he failed to do so. So there is here no
violation of due process. Another issue is the lack of
verification of the complaint. SC ruled that this is a
mere formal and not jurisdictional defect. Under the
CSL and the Revised Administrative Code, the
complaint must be under oath; otherwise, it is a
ground for dismissal of the complaint. The exception
here is when the complaint is initiated by the agency.
There is no need for a verification if the complaint is
one initiated by the disciplining authority. So
whatever defect has been cured because the
President himself acted as the complainant so the
proceeding must continue. On the other hand, if it is
initiated by others, it should be under oath, otherwise
there is a jurisdictional defect.
Berces vs. Guingona
241 SCRA 539
Sangguniang Panlalawigan of Albay ordered
suspension as a penalty against respondent municipal
mayor. He appealed to the Office of the President,
and he likewise filed a motion to stay the decision, on
the ground that there is an appeal taken.
Complainant filed for the execution of the decision
rendered by the Sangguniang Panlalawigan. But the
Office of the President did not execute the decision.
Complainant argued that under Section 68, there is
an obligation for the execution by the Office of the
President of the decision on appeal. Is the claim
correct? The SC ruled that Section 68 does not
113 | P a g e
impose an obligation on the Office of the President to
make the decision executory. However, there was EO
18 dated January 12, 1987 which authorizes the
Office of the President to stay the execution of the
decision pending appeal. SC ruled that it is not
inconsistent to Section 68. Section 68 does not
deprive the reviewing official, in this case the OP, to
stay the decision pending appeal. Section 68 only
gives discretion to the reviewing official, in this case,
the Office of the President.
Manilao vs. Reyes
255 SCRA 616
Facts: Petitioner Manilao, Human Resource Manager,
filed an administrative case against municipal mayor
Reyes. And this complaint was lodged before the
Sangguiniang Panlalawigan. After due proceedings,
the SP dismissed the administrative case. So Reyes
was absolved by the SP and so Malinao questioned
the decision of the SP by filing a petition for certiorari
and mandamus.
Held: There is this principle in administrative law of
exhaustion of administrative remedies. The resort to
the petition before the [Supreme] Court is NOT
PROPER. What should have been done by Malinao is
to appeal the decision rendered by SP to the Office of
the President, and this is again in accordance with the
provision of the LGC, Section 67.
Q: What about a case filed against a local elective
official for acts committed not in relation to the
duties of such respondent elective official? Would
this be a basis for the order of the suspension of the
respondent elective official?
A: If misconduct committed by the respondent elective
official does not have anything to do with his official
duties as a local elective official, this cannot be the
basis for the conduct of administrative proceedings,
more so for the imposition of a sanction. Meaning
there is a need first to have a conviction in the
criminal case arising from the same act/s complained
of because an act or omission committed by the
officer gives rise not only to administrative but
likewise criminal liability. In a case, SC ruled that
the acts of lasciviousness cannot be considered as
misconduct. You need not be a public officer to
commit acts of lasciviousness. So there is first the
need for a conviction in the criminal case and on the
basis of the conviction therefor, there can already be
an administrative charge lodged against the same
respondent elective official.
Two kinds of Authority in trying cases:
1. Disciplining Authority (DA)
2. Investigating Authority (IA)
As applied to the local government units, the DA is the
Office of the President over high-ranking local elective
officials of the provinces or highly urbanized cities or
independent cities. But the task of investigating may be
delegated by the DA. So two concepts here, the concept
of DA as distinguished from IA.
Take note that the task of gathering evidence and even
the conduct of investigation and the ascertainment of the
facts on the basis of which a decision will have to be
rendered may be delegated by the DA to a subordinate
official who is tasked to gather evidence and investigate
this case and ascertain the facts based on the evidence
gathered is said to be the investigating officer.
Generally, the IA does not have the power to decide the
case. The decision must still be rendered by the DA
although the task of investigating may be delegated. In
the case of the President, he/she is the DA, and in cases
filed against, let us say, the elective official of the
province or a highly urbanized city or independent city,
the conduct of investigating may be delegated to his/her
alter ego. So you have again a separate concept.
ALTER EGO PRINCIPLE or DOCTRINE OF
QUALIFIED POLITICAL AGENCY – Under this
doctrine, the department secretary is the alter ego of the
President. I have mentioned to you that the power of
supervision is NOT inconsistent with the power to
discipline. The power to order an investigation in cases
where the elective local official has committed a violation
of law or has performed an act contrary to the law, is in
accord with Section 4, Article X of the Constitution.
So here, the Secretary of the DILG is tasked by the
Office of the President to gather evidence and investigate
the complaint and he is called the investigating authority
OR the President at her option may delegate the task of
investigating not necessarily to the Secretary of the DILG
but to some other body or officer. A committee may in
fact be created by the President. We mentioned that
under the LGC, the decision of the President is final and
executory. And again this is consistent with Section 68.
The appeal shall not bar the decision from becoming final
and executory.
Of course it follows that if the respondent is exonerated
from the charge, then he shall be considered to be, if
placed under preventive suspension, entitled to the
recovery of the salary and other benefits due him during
said period. This rule likewise, as we saw, is applicable in
cases where there is issuance of preventive suspension
pending investigation under Section 64.
SOURCES OF POWERS OF THE MUNICIPAL
CORPORATION
Those embodied in the Constitution, RA 7160 or
the Local Government Code, and the charters creating
municipal corporations.
Classification
114 | P a g e
 1. EXPRESS – Conferred and enumerated by law
2. IMPLIED – Arises by natural implication from
the grant of an express power
3. INHERENT – Necessary and indispensable to a
municipal corporation; inseparable from the
existence of municipal corporations
Another more common classification:
1. GOVERNMENTAL – Exercised in administering
the power of the state and in promoting the
general welfare
2. MUNICIPAL – Exercised by the municipal
corporation for the special grant of advantage or
benefits to the inhabitants. (Example: fiesta)
Three powers of a municipal corporation:
1. POLICE POWER – a.k.a. the GENERAL
WELFARE CLAUSE embodied under Section 16 of
LGC. It is the least limitable power and the most
insistent among the three. This power is inherent in
the state but not in the municipal corporation. There
must be an express grant of this power for the
municipal corporation to perform such kind of power.
Section 16. General Welfare – Every LGU shall exercise
the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or
incidental for its efficient and effective governance, and
those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions,
LGUs shall ensure and support, among other things, the
preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment
among their residents, maintain peace and order, and
preserve the comfort an convenience of their inhabitants.
Two parts:
1. POLICE POWER PROPER – The power of
the municipal corporation to enact ordinances shall
be necessary to enable the municipal corporation to
promote the health and safety of the inhabitants, to
enhance prosperity and welfare, to maintain peace
and order, etc. Police power proper, which is more
simply stated in Sections 16, 5, and 9, is the power
of the municipal corporation to promote the health,
safety, public comfort, convenience, and morality of
the citizen.
2. GENERAL LEGISLATIVE POWER – The
authority given to the municipal corporation to enact
ordinances in order for it to accomplish the tasks
conferred upon it by law.
Requisites for a valid exercise of police power:
1. Exercisable only within the territorial limits of the
LGU
2. The interest of the majority, as distinguished
from the interest of the few or the need to
promote the welfare of the public as
distinguished from the welfare of the few.
(general welfare)
3. Means used is reasonably necessary to enable
the municipal corporation to accomplish the
purpose and this should not be unduly
oppressive upon the individual.
4. Must not be contrary to the Constitution and the
law.
5. Must be in conformity with due process and
equal protection clauses
Q: Can the Liga ng mga Barangay exercise police
power?
A: No. Under Section 491 of the LGC, “There
shall be an organization of barangays to be
known as Liga ng mga Barangay, for the
primary purpose of determining the
representation of the liga in the sanggunians
and for ventilating, articulating and
crystallizing issues affecting barangay
government administration and securing,
through proper and legal means, solutions
thereto.” Thus, its job is simply
recommendatory. They cannot exercise
police power.
Magtaja vs. Pryce
234 SCRA 255
Here, the court laid down the test of a valid
ordinance. One test is that the ordinance must not be
contrary to the Constitution or any law. What is the
rationale for this precept? Municipal corporations are
mere agents of the national government and certainly
the agent cannot have better powers than the
principal. So the law itself must not be superseded by
the ordinance enacted by the Sanggunian of the
municipal corporation. The second test is that it must
not be unfair or oppressive, nor partial or
discriminatory. Take note that the exercise of police
power means to regulate but not to prohibit, It
cannot be prohibitory. Another test is that it must be
general and consistent with public policy and it must
not be unreasonable.
Sangalang vs. IAC
176 SCRA 720
In the matter of the acts of the municipal
government of Makati to open Orbit St. in Bel Air.
This was questioned by the association homeowners
of Bel Air on the ground that this was an intrusion to
their privacy. But the SC ruled that this is a valid
exercise of police power by the municipal of Makati.
Why? The opening of Orbit St. in Bel Air was wanted
by the demands of common good in order to
decongest traffic. And this promotes public
convenience. Now what about the argument that this
is an intrusion and would result in the lost of privacy
of the Bel Air residence? I mentioned to you one
important requirement in the exercise of police power
that the interest of the majority, as distinguished
from the interest of the few, demands intervention by
115 | P a g e
the state, in this case, through the municipal
corporation. Another contention was the destruction
of the gate in Orbit and Jupiter Streets. Again for the
same reason, for the valid exercise of police power,
the gate may in fact be summarily abated considering
that it is a public nuisance. Of course there is a
requirement that there must be a turn over by the
subdivision to the LGU.
City Government of Quezon City vs. Judge
Ericta
122 SCRA 769
Here, the city council of Quezon city passed an
ordinance requiring the owners and operators of
memorial parks to set aside at least 6% of their
cemetery for charity burial of the poor. Is this valid or
not? One test for a valid exercise of police power is
that it cannot be confiscatory. It should not be
oppressive. Take note that this police power means to
regulate but not to prohibit or to confiscate property.
So here in the guise of the exercise of police power,
the city council of Quezon City was actually
performing this power of eminent domain which
means there is a need for payment of just
compensation. So clearly if the city council requires
from the operators that a portion of their area be
allotted for the burial of paupers, it is confiscatory.
This deprives the owners of their property, regardless
of the area. Instead of building or maintaining a
cemetery for this purpose, the city passes in fact the
burden to these private owners of memorial parks.
Baguio Citizen’s Action vs. City Council
131 SCRA 373
Here, the city council of Baguio passed Ordinance
386 legalizing the occupancy of the occupants of
public lands. This was contested. The court ruled that
this in fact tolerated or abated squatting, which is
illegal. So in legitimizing the occupation of squatters
of public lands in Baguio, making them bona fide
occupants, clearly, the ordinance enacted by the city
council of Baguio is null and void.
Lim vs. CA
387 SCRA 149
Mayor Lim ordered the display of red tape. In
certain business establishments, he issued an order
for their inspection. The establishment which
complained was The New Bangkok Club and Exotic
Garden. Mayor Lim ordered its closure. He argued
that he has the power to issue, to grant or even
refuse municipal permits or licenses and this power to
suspend or revoke or deny them. But the power to
deny or revoke is premised on the terms and
conditions of the permit. In other words, the mayor
does not have the authority to unilaterally order the
closure of these business establishments simply on
the basis that these establishments have violated
certain provisions of law. There is a need first for this
establishment to be heard. This is consistent with the
due process clause. So it is certainly not a valid
exercise of police power. There must always be
observance of due process in the exercise of police
power.
Ermita Malate Hotel Operators Association
vs. Mayor of Manila
Sometime in 1963, the municipal council of
Manila passed an ordinance increasing the license fee
to be paid by the second class hotels and motels in
the amount of P 50,000 and requiring that all persons
who wish to enter the premises of these
establishments, should register in the registry in
Malate open for public use. He further required that
those below 18 years of age must be accompanied by
their parents. The owners and operators of these
motels along Ermita and Malate questioned this
ordinance. SC sustained this passage of the
ordinance and held that this is a valid exercise of
police power in favor of the need to promote public
morals. In fact, the SC noted the proliferation of
these second class motels and hotels which became a
convenient place and haven for prostitute. So it
increases incidents of prostitution.
Monteverde vs. Governor Generoso
Governor Generoso issued an order for the
destruction of the dams constructed by Monteverde.
The reason was that those areas caused the waters to
become stagnant and thus they became a breeding
ground for the mosquitoes. The Monteverdes went to
court and they were sustained by the court, why?
How do you classify this property? Is this nuisance
per se or nuisance per accidens? Take note
destruction was made in the private property and
there is a need first for the declaration by the court
that indeed this is a nuisance. The city authorities
could not have the power to declare a place as a
nuisance per se where in fact it is not. Where the
construction is made on a titled property, certainly
this cannot be classified as a nuisance per se or public
nuisance.
Laguna Lake authority vs. CA
251 SCRA 42
SC ruled that it is not the municipal government,
even under the provision of LGC, that has the power
to issue permits or the enjoyment of fisheries
privileges in Laguna de Bay. Take note that the power
of the municipal corporation under the LGC may be
the subject of limitations and guidelines that congress
may prescribe and one such limitation may in fact be
embodied in another law. Thus you have under RA
4850 and EO 927. Clearly, these laws are grant to the
116 | P a g e
Laguna Lake Development Authority of such exclusive
jurisdiction to issue the permit for the enjoyment of
fishery privileges in Laguna de Bay and not the
municipal corporation.
Velasco vs. Blas
115 SCRA 514
You have here the municipal council of Silang,
Cavite passing a resolution allowing respondent Blas
to build a movie house within 40m away from the
medical clinic of petitioner Velasco. The provincial
board declared that the resolution passed by the
Municipality of Silang as void or violating RA 1224
yet, respondent continued with the construction of
the movie house. The issue here is WON it was
correct for the provincial board to declare the
resolution of the municipal council of Silang as void.
Now take note that what is prohibited under RA 1224
is the establishment of night clubs, bars, cabarets,
and such other institutions which are classified as
nuisance. In other words, these are prohibited
because of the noise they produce and this is not so
in the case of a movie house. So the disapproval by
the Sangguniang Panlalawigan of the resolution of
municipal council of Silang is not valid. One rule here
is that whatever measure, ordinance, resolution that
may be passed by a municipal council of the
municipality or city council of a component city, has
to be approved by the Sangguniang Panlalawigan but
the authority to review and approve the same is
limited only to those situations where the municipal
council has exceeded its corporate power. Meaning, if
what is being enacted by the municipal council is
within its corporate power, the Sangguniang
Panlalawigan has no business disapproving the
measure.
Balaquit vs. CFI of Agusan Del Norte
163 SCRA 180
You have here the municipal corporation of
Agusan del Norte passing an ordinance penalizing
individuals, the owners of movie houses charging full
payment for the admission of children between 7-12
yrs old in movie houses. So you have here, is this
ordinance valid or not valid? The SC ruled that this
ordinance is an invalid exercise of police power
because it is unreasonable and oppressive, oppressive
on the owners, operators of movie houses. Of course
the employing of administering this ordinance, the
implementing of this ordinance, you cannot require
every person entering the movie house to show his
birth certificate. That is absurd situation just to
ensure compliance with the requirements of the
ordinance WON he belonged to the age bracket 7-12.
So the difficulty in carrying out, implementing this
ordinance and also you have here movie owners who
are made to bear the cause, so in passing the burden
on the owners of movie houses.
Dela Cruz vs. Paras
123 SCRA 569
The Municipality of Bucaue in Bulacan adopted an
ordinance prohibiting the operation of nightclubs. Is
this a valid ordinance? What we have mentioned
earlier was the ordinance establishing. This one is
prohibiting the operation of nightclubs. Nightclubs are
not illegal per se. So clearly, the police power is not
confiscatory. It is not intended to suppress but
rather, to regulate. So this is not a valid exercise of
police power.
Philippines Game Fowl Commission vs. IAC
146 SCRA 294
What is the authority of the Philippines Game
Fowl Commission as distinguished from the authority
of the municipal executive of LGU in the matter of the
grant of license to operate a cockpit? The SC in this
case ruled that the authority of the former is limited
to the issuance of a license for the operation of
international derbies. It does not have the power over
ordinary or local cockpits because this power is
conferred to the local chief executive of the municipal
corporation. So the power of the Philippines Game
Fowl commission over ordinary cockpits is only one of
review and supervision and not of control. SO the
issuance therefore of regulations by the Philippines
Game Fowl Commission was not within its authority
because this belongs to the municipal corporation.
Gacal vs. Municipality of Vigan
27 SCRA 157
The Municipality of Vigan passed an ordinance
prohibiting the construction of warehouses that stored
flammable materials within 200m radius of existing
blocks of houses. Is this ordinance valid? Gacal
argued that the ordinance is confiscatory because
there was an order by the municipal for him to
transfer his warehouse to some other place. The SC
ruled that the ordinance enacted by the Municipality
of Vigan is a valid exercise of police power because
the purpose here is to avoid loss of life and property
in case of fire.
Pango vs. Socrates
278 SCRA 144
There were two ordinances enacted by the city
council of Puerto Princesa. One was to ban the
shipment of all live fishes and lobsters and crabs,
with the exception of mudfish or milkfish, and catfish.
The second ordinance provided that it is prohibited to
catch, to gather, to buy, to sell and to ship live
marine, for a period of 5 years. The fishermen and
the merchants questioned these ordinances. The SC
here sustained the authority of the city council of
Puerto Princesa consistent with the autonomy system
inscribed in the LGC. Take note that such authority of
LGC is decentralization, and one of the broad powers
given to the municipal corporation is the enforcement
of municipal waters, so the need to regulate fishing or
to prohibit, or penalize through an ordinance, the
method of fishing.
117 | P a g e

Villegas vs. Yu kaw Bu
An ordinance enacted by the City of Manila
requiring any person who wanted to work in manila to
obtain a mayor’s permit is void because of lack of
sufficient standards to guide the municipal authorities
on the issuance of permit. Actually this is open to
abuse by municipal authorities. There is here a
possibility of capriciousness to whom the permit
should be granted. The power to grant or deny is
subject to abuse in the absence of sufficient
standards and this is on account of the denial of the
right of the people to engage in entering means of
livelihood.
Javellana vs. Quintanar
119 SCRA 629
There were two ordinances enacted. One
prohibited the selling of vegetable food stock outside
of the market, valid or not valid? Valid because of
public safety and public health. The other ordinance
was a prohibition to operate public markets by
anyone other than the city. Petitioner argued that
what she was operating was not a public market but a
private market because she owned it. Is she correct?
The test of a public market is not ownership. Rather,
the test of a public market is dedication to the service
of the general public. So clearly the ordinances
enacted are valid exercise of police power, for being
merely regulatory.
Paño case
354 SCRA 76
Respondent Paño was appointed by the PCSO as
agent for the operation of a lotto outlet in Laguna.
However, the Mayor refused to grant the permit on
the ground that earlier, the municipal council already
passed a resolution objecting to the operation of lotto
in Laguna and on the basis of Sections 26 and 27 of
LGC providing that there should be prior consultation
and approval by the sanggunian of the municipal
corporation before a national project or program may
be adopted and implemented in the municipal
corporation. SC ruled that lotto is not a national
program or project of government rather it is a game
of chance that is being administered or authorized by
the national government under R.A 1169. So the LGC
does not apply because these provisions apply only to
national projects or programs but not to a game of
chance like lotto. So here clearly it is not within the
authority of the Sangguniang Panlalawigan to disallow
such operation of lotto in Laguna.
Batangas vs. Sangguniang Panlungsod of
Batangas City
439 SCRA 327
To regulate the activity of cable business,
National Telecommunication Commission (NPC). is
empowered to regulate cable network. So an
ordinance was enacted by the city council of Batangas
regulating such activity including the matter of the
rate to be paid by the subscribers. SC ruled that the
city council of Batangas usurped the power belonging
to the NPC, the latter’s power having been conferred
by law.
Mayor Binay of Makati vs. COA Chairman
Domingo
21 SCRA 508
The city passed an ordinance providing for a
financial burial assistance. The SC sustained the
validity of such ordinance because this is consistent
with the duty to provide for the real needs of the
people in their health, safety, comfort and
convenience. Take note that an ordinance cannot
simply be declared unconstitutional simply because
there is incidentally, a limited number of individuals
who can benefit. The general rule is that it should be
the general public who would be served by the action
of the municipal corporation intervening. So SC ruled
that the support for the poor is within the ambit of
the general welfare clause.Tthe support for the poor
is a valid exercise of police power in the promotion of
the common good.
Sarado vs. CA
131 SCRA 373
The municipal of Bayangbang in Pangasinan
enacted an Ordinance appointing a person Lacuesta
as a manager of the fisheries for 25 years renewable
for another 25 years. But under the old Fisheries Act,
the grant of such can be only for a maximum period
of 5 years. So certainly this violated the old law
because there was non-compliance with the required
period and the need of a public hearing.
Navarro vs. Villegas
This was prior to the declaration of martial law.
The militant students wanted to use Plaza Miranda for
them to hold their rallies and the manila city
authorities refused and in fact denied the application
for the holding of this rally in Plaza Miranda. They
were allowed to use another plaza instead. SC
sustained the authority of the City of Manila because
of the eminent danger of public disorder, breach of
peace, and possible criminal acts that may take place.
POWER OF EMINENT DOMAIN – This power is not
inherent in a municipal corporation. The basis for this is
found under Article III, Section 9: “Private property shall
not be taken for public use without just compensation”
and that “No person shall be deprived of his life,
property, or liberty without due process of law.”
The fact that this power of eminent domain is derogatory
to the property right of person remains so that such
118 | P a g e
exercise should be strictly construed against the LGU.
Unlike in its exercise of police power, we mentioned that
police power is the least limitable of the powers given to
the municipal corporation. And in fact it is liberally
interpreted, constructed in favor of the grant of such
power.
The legal basis for this exercise of this power of eminent
domain by the municipal corporation is Section 19 of
LGC. The LGU cannot exercise this power unless there is
authority given by the Sanggunian. The authority is
made thru the passage of an ordinance authorizing the
head of the LGU to initiate the filing of the petition for
the expropriation of private property and this is premised
on the fact that there is a valid and specific offer given to
the property owner and this offer is rejected by the
owner and thus this will be the basis for the
expropriation under the authority of the Sanggunian.
Take note only through an ordinance. So if what has
been passed by the municipal corporation sanggunian is
merely a resolution, it does not comply with the
requirements of the law because a resolution is vastly
different from an ordinance. A RESOLUTION merely
expresses the sentiments of the sanggunian, while an
ORDINANCE is the law itself of the sanggunian.
Q: What then is the remedy available to the property
owner where money judgment is already rendered in
his favor and against the municipal corporation?
A: The proper remedy is an action for mandamus in
order to compel the enactment of an ordinance to
satisfy the appropriation of a final money judgment
rendered in favor of the property owner.
Requirements for a valid exercise of this power of
eminent domain:
1. Payment of just compensation
2. Observance of due process.
Q: What is just compensation?
A: LGU shall have the authority to take possession of
such private property upon the deposit of at least
15% of the fair market value based on the tax
declaration of the property owner provided further
that the amount to be paid of the owner shall be
fixed, shall be determined by the court on the basis
of the fair market value of such property reckon at
the time of the taking of the private property.
Moday vs. CA
The municipal council passed an ordinance
authorizing the municipal mayor to expropriate a lot
of the petitioners intended to construct a sports
complex, a fun center. You know one basic principle if
the municipal council enacts an ordinance or even a
resolution is that the same is submitted for approval
to the Sangguniang Panlalawigan in the case of a
component municipal. What happened here was that
the Sangguniang Bayan gave authority to the
municipal mayor for the filing of a petition for the
expropriation of private property. But the
Sangguniang Panlalawigan did not approve this
ordinance of Sangguniang Bayan as there were
already other properties of the municipal corporation
which are not being used. Is this sufficient basis for
disapproving the ordinance enacted by the
Sangguniang Bayan? NO, because the power to
exercise this eminent domain is conferred expressly
to the municipal corporation under Section 19 of LGC.
So if such power is granted in a municipal corporation
like the municipality, it is merely exercising a
corporate power expressly granted to it and the
authority of the Sangguniang Panlalawigan is limited
to disapproving an ordinance that is beyond the
corporate powers of the municipality. If beyond the
corporate powers of the municipality, the
Sangguniang Panlalawigan has the power to
disapprove it. But if it is within its corporate powers
just like the power of eminent domain, the
Sanggunian of the province cannot disapprove the
ordinance enacted by the Municipal council.
Ladcao vs. Labra
440 SCRA 279
SC ruled that private lands run class in the order
of priority for purposes of socialized housing. The
purpose of the municipal corporation in taking over
private property is for this private property to be
distributed and divided into smaller lots for the local
council. Of course there are other public purposes
that can justify the taking of private property but
nonetheless, the taking of private property should be
given priority and all other means administratively
must be exhausted before private property may be
taken and expropriated by the municipal corporation.
Eurico vs. Atienza
472 SCRA 466
The fact that here is non-payment of the just
compensation, this still does not entitle the private
property owner to recover the possession of the
expropriated property. But let us say, there is here a
failure on the part of the municipal corporation to pay
the just compensation within the period of 5 years
from the finality of the money judgment rendered
against the municipal corporation. In such case, the
owner of the property shall have the right to recover
the possession of his property. But generally, the rule
is there can be no recovery. The proper remedy is
precisely a petition, action for mandamus in order for
the sanggunian of the municipal corporation to enact
an ordinance appropriating the fund corresponding to
the money judgment rendered in the expropriation
case. So from the time of the finality of the judgment
of the appropriation case, the property owner can
recover the possession of his property.
General purpose for the expropriation of private
property:
1. Expropriation of property intended to benefit the
poor, the homeless
2. Public purpose character to include also the
expropriation of private property for let us say
construction of roads, bridges, allies, or wards or
such other public facility, which may be a school
119 | P a g e
 building or even a playground or a park, or a
drainage system.
Q: Now, what are generally purposes for the
expropriation of private property?
A: It used to be that this was done by the municipal
corporation for the distribution of subdivided lot for
low-income families. So you have expropriation of
property intended to benefit the poor, the homeless
and the public purpose character has been expanded
to include also the expropriation of private property
for let us say construction of roads, bridges, allies, or
wards or such other public facility may be school
building or even a play ground or a park, drainage
system. So these may be valid classification for the
expropriation of private property.
Example: The clearance of the slots and the erection of
houses intended for low-income families are considered
public purpose. But take note for it to qualify as valid
exercise of this power of eminent domain, it is
indispensable that there be a large number of people
benefited by such action. If let us say you have here a
small property being expropriated by the municipal
corporation and the objective is to have the same
divided into smaller lots for distribution to benefit about
20 families. The SC ruled that this is not sufficient, the
public character has not been met in this situation. So it
is not for public purpose where the condemnation is done
on behalf of let us say 20 or 50 persons and their
families. That does not inure to public benefit to give the
use of public character. So this is an invalid exercise of
this power of eminent domain.
Let us say the destruction of congested areas and this
area is thereafter divided. This is of public purpose. The
destruction of the congested area in fact diminishes the
potentialities of deceases, epidemics, and crimes. Thus,
this could justify the taking of this property. But again,
the conditions must be so extensive that this involves
numerous persons so as to give a public character. So if
let us say, if that private property is so small, or if the
taking of such property is intended to benefit only a few
families, again this will not serve the purpose, this is not
a valid exercise of this power of eminent domain.
Municipal of Parañaque vs. BM Realty
Corporation
292 SCRA 676
Respondent BM Realty Corporation, the owner of
the property, complained that the petition for the
expropriation of its two parcels of land take no cause
of action on the ground that the petition was filed not
in accordance with the provision of the LGC Section
19. What was passed by the municipal of Parañaque
was a resolution giving authority to the mayor to
commence expropriation. Is this authority given by
the municipal corporation to the mayor sufficient or
valid? If you recall, I mentioned to you the
requirement that it must be in the form of an
ordinance and not a resolution, passed by the
sanggunian giving authority to the mayor to
commence or initiate the petition for expropriation.
Malonzo vs. Zamora
323 SCRA 875
Petitioners Malonzo together with the members of
the Sanggunian of Kaloocan city were charged with
misconduct because of their approval of the
supplemental budget pertaining to the appropriation
of funds for the renovation and repair of their offices.
All of these were done in one session day. And the SC
sustained the position of the petitioners. The issue
here is WON there may be a holding of three readings
of an ordinance prior to its passage, in just a single
session day? There is no prohibition under the LGC
that the three readings should be done separately.
City of manila vs. Arellano Colleges
The city of manila sought to expropriate 7,270
sq.m of the property belonging to Arellano Colleges
along Legarda Ave. This was intended as a University
site of the Arellano Colleges. There has already a
population of about 9,000 students. SC ruled that
the expropriation of this property owned by the
Arellano Colleges is not valid because the benefits
derived from educating 9,000 students outweighs
petitioner’s purpose.
3. POWER OF TAXATION - The power of
taxation is not inherent in municipal corporation.
Article X, Section of the Constitution, this gives the
general authority for a municipal corporation to
regulate taxes and other charges. Each LGU shall
have the power to create its own sources of
revenues and levy taxes, fees, and charges subject
to such guidelines and limitations as the Congress
may provide, consistent with the basic policy of local
autonomy. Such taxes, fees, and charges shall
accrue exclusively to the local government.
Whatever taxes, fees derive by the municipal
corporation shall accrue exclusively to such LGU.
Q: What is the effect of this grant under Article XI,
Section of the Constitution to the fiscal position of a
municipal corporation? (Bar Q)
A: It does not change the doctrine that municipal
corporations do not have the inherent power of
taxation. What it does is to confer all municipal
corporation the general power to levy taxes, fees,
and other charges. So they no longer have to wait
for the statutory grant to be given by congress.
Requirements for a valid exercise of this taxation
power:
1. Taxes must be for public purpose
2. Taxes must be just and uniform within the
municipal corporation.
3. Taxes must not be oppressive nor confiscatory
120 | P a g e
 4. It can only be impose within the jurisdiction of
the LGU
5. In no case should the collection of the tax be left
to any other person; so the collection must only
be through the authorized municipal officer, the
treasurer or any of the authorized officers under
the treasurer’s office. BIR is not part of the LGU.
Philippines Petroleum Corporation vs.
Municipal of Pililla
98 SCRA 82
Limitations imposed merely by administrative
orders are inconsistent with Article X, Section 5 of the
Constitution. The authority given under the
Constitution for municipal corporations to create their
own sources of revenue is subject to guidelines and
limitations that congress may prescribe. In other
words, it is only congress that has authority to
impose limitations. So the executive branch does not
have such power to let us say the issuance of
Administrative Orders or Executive issuances.
Basco vs. PAGCOR
PAGCOR has the power to establish any part of
the Philippine Gambling games. Now is this authority
of PAGCOR establishing this gambling subject to the
imposition by the municipal corporation a form tax?
The SC ruled that the congress has the power to
impose limitations and in fact PAGCOR is exempted
from local taxes by virtue of PD 1869.
Section 186 of LGC – Pertains to the need for the
holding of hearing before the enactment of a tax
ordinance by the municipal corporation.
Section 187 of LGC - Pertains to the procedure for the
effectivity of a tax ordinance.
Apart from the requirement that there ought to be public
hearing prior to the enactment of any tax measure of the
municipal corporation, Section 187 authorizes the
Secretary of Justice to review the legality or
Constitutionality of a tax ordinance and if warranted, he
may in fact revoke either or on both grounds, i.e the
ground that the tax ordinance enacted by the municipal
corporation is unconstitutional and/or invalid. When is
this done? This is within a period of 30 days from the
time of the effectivity of the tax ordinance enacted by
the municipal corporation. So within the period of 30
days, if any person is aggrieved, the same may be raised
on appeal within such time frame to the Secretary of
Justice and under the same provision, the Secretary of
Justice must act within a timeframe of 60 days from the
time of the taking of the appeal. So he may rule on the
Constitutionality or the legality of such passed ordinance.
Supposing there is no action within such time frame? It
means that the Secretary of Justice has approved the tax
ordinance and that he did not find the same to be
unconstitutional. But nonetheless, the party may still
have the remedy of taking the appropriate proceedings
before the court with a period of 30 days. So 30 days
from the time of the lapse of 60 days or within such 60-
day time frame, there is already decision.
Note: The filing of the appeal before the DOJ Secretary
does not suspend the effectivity or the collection of the
taxes arising from this tax measure of the municipal
corporation.
Fundamental principles that must be observed by
the municipal corporation in the exercise of this
taxation power:
1. No money shall be paid out of the local treasury
except in accordance or in pursuance of an
appropriation ordinance or law. The reason is that
public funds can only be disbursed for public
purposes and for public use. This means that
there be authority and the authority is on the basis
of a law or an ordinance, in the case of the LGU.
So in the absence of an appropriation ordinance
enacted by the municipal corporation, there is no
basis for the payment of the money, public fund of
the municipal corporation.
All moneys received or collected by the local government
officer must always be accounted for. In fact there is a
requirement for the issuance of a receipt. So whoever is
authorized to receive has the legal obligation to account
for such public fund he receives and in fact he is
mandated to make an accounting. You have to demand
that you be issued an official receipt, not just a
temporary one.
2. Concept of a trust fund - Trust fund ii the
treasury, most of the local treasury shall not be paid
out except only in the fulfillment of the purpose for
which the trust is luxuriated or the fund is used. So if
this public fund is already intended for a certain
specific public purpose, it is already being held by
the municipal corporation in thrust for specific public
program or project. In no case should this fund be
diverted for some other purpose. It is a thrust for the
purpose of disbursing the same only for such
identified public purpose.
Q: If such trust fund is used for some other but noble
public purpose, is there a crime here committed?
A: Yes. Technical malversation. In malversation, there
is misappropriation of funds for his own purpose because
what happens here is that you have a fund already
intended for a specific purpose. But let us say you have
here a barangay official who has a fund intended for the
construction of basketball court but for good reason, he
thought that his constituents need a water project
instead. So he used the fund for the construction of an
artificial well. This is technical malversation.
Other powers:
121 | P a g e
A) Power to enter into contracts. It is an express
power given to the municipal corporation not only under
its charter but under the LGC.
Requisites for a valid contract:
1. The contract must be within the corporate
powers of the municipal corporation; otherwise, it
becomes an ultra vires act meaning it is beyond the
corporate powers of the municipal corporation. It is
null and void. So it may be an express, implied, or
inherent power so long as it is within the corporate
power of the municipal corporation.
2. It must be entered into by a duly authorized
municipal officer. Who is duly authorized mun
officer? The local chief executive. So if let us say the
contract is entered into not by the local chief
executive but the administrator. What becomes of
the contract? Voidable. It is valid if not for the fact
that it was entered into by a non-authorized officer.
So it means therefore that such act can still be the
subject of ratification. On the basis of this contract
entered into by a non-authorized municipal officer, it
is a principle of justice and equity that the municipal
corporation should pay for, let us say, the service
rendered even in the absence of a written contract
because it derived or received benefits from such an
informal or non-formal contract, or from a contract
entered into by a non-authorized officer.
Note: Even under the LGC, the authority of the local
chief executive to enter into such contract emanates
from the sanggunian. So there must be authority given
by the Sanggunian to enter into such specific, particular
contract. It may be the authority to transact business, to
dispose of property or even the power to expropriate
private property. The basis for the authority is 2/3 votes
of the sanggunian.
3. There must be certificate of availability of public
funds. This is a verification issued by the financial
officer that funds are available and on that basis, the
sanggunian passes an appropriation ordinance. This
requirement is very important because non-
compliance would make the contract also an ultra
vires transaction. It is null and void.
4. There must be compliance of a formal requisite
of a contract, i.e. in writing and notarized.
Take note that the 1st and the 3rd requirements pertain
to the substantive requirements whereas the 2nd and
4th requirements for the validity of the municipal
contracts pertain to the formal requirements. For the
latter, the defect may be cured by ratification. The effect
of this is that the contract becomes valid. It is still within
the municipal corporation’s corporate powers. The
contract is binding and therefore there is obligation on
the part of the municipal corporation to pay whatever
that has to paid to the other contracting parties.
Malantang vs. Municipal of Luna
Facts: The municipal corporation entered into a
contract of lease for the granting of fishing privileges.
Certainly, this is a valid and binding contract. If the
same municipal corporation adopts another resolution
setting the lease contract aside and granting the
same privilege to another person, is this proper? So
what kind of function has been performed here?
Held: The grant of the right to enjoy the fishing
privileges that is given by a municipal corporation is
an exercise of proprietary function. It is not a
governmental function. So there must be observance
of this Constitutional provision of non-impairment of
contracts. Moreover, it is not proper for the same
municipal corporation to subsequently pass another
resolution setting aside the first because there must
be respect for the property rights of the first party
with which the municipal corporation entered into a
contract. In other words, the validity of the contract
certainly has to be respected so this means that a
municipal corporation cannot anymore disregard what
it has early entered into with a private person. The
only basis for disregarding this contract granting
fishery privileges to a certain individual is through the
municipal corporation’s exercise of police power
because certainly this superior to the non-impairment
clause. This is consistent with the non-impairment
clause. So the setting aside of the contract with the
first party would make the municipal corporation
liable for damages for breach of contract unless the
municipal corporation was in the exercise of its police
power. In the same manner that the passage by the
municipal corporation of a solicitation ordinance is a
valid exercise of police power and in passing the
same, it may affect the property right of a certain
individual. Do this individual has a basis to complain?
No, because of the exercise of police power by the
municipal corporation. Of course if private property
has been taken, there must be payment of just
compensation. But nonetheless, it only shows that the
property rights are subordinate to the authority of the
municipal corporation on police power and power of
eminent domain.
B) Authority to alienate or dispose of its property.
We have to make the classification whether this property
classified as governmental or proprietary in nature. The
municipality has the authority to alienate or dispose of
its property of private nature but not where the property
is classified as of such public nature.
Example: Public plaza is property of the municipal
corporation in its public nature and therefore subject to
the full control and authority of the state.
Corporate or proprietary activities:
1. Undertaking of water works project
2. Operation of a slaughter house or public markets
3. Ferries or wards
4. Fisheries
5. Maintenance of parks, golf course, etc.
122 | P a g e
Q: WON the municipal farm of the municipal
corporation may be the subject of garnishment in
satisfaction of a money judgment?
A: No, because these are of public nature and thus,
cannot be the subject of garnishment unless or until,
there is an appropriation ordinance enacted to pay
off such obligation. So the rule here is despite the
money judgment rendered by the court, the public
farm of the municipal corporation cannot be the
subject of garnishment to pay for such judgment
award.
Properties of the municipal corporation whether
classified as real or personal and which are necessary for
public use cannot be the subject of attachment neither
can they be sold at an auction sale to satisfy whatever
money judgment rendered against the municipal
corporation.
Municipal of Makati vs. CA
190 SCRA 207
You have here a fishery lot, one owned by the
state. Certainly, it cannot be the subject of
attachment or garnishment. But this fishery lot was
only being leased by the municipal corporation. Now
the question here is WON income derived from the
operation of this fishery lot by the municipal
corporation may be the subject of garnishment? Yes.
The income derived from such operation of the
municipal corporation is classified as proprietary,
private in nature and therefore may be the subject of
garnishment.
Q: What then is the remedy should there be refusal or
failure on the part of the municipal corporation to
effect the payment of a formal money judgment
where there is already a decision rendered against
the municipal corporation?
A: File a mandamus action against the municipal
corporation to compel the sanggunian of the
municipal corporation to pass an appropriation
ordinance for funds to be paid to the money
judgment. Whatever money judgment rendered
against it is taken from general funds. These are
funds of the municipal corporation not yet the
subject of an appropriation ordinance precisely the
need therefor for such appropriation ordinance.
Now if let us say there is already a tax measure or
ordinance appropriating public funds for certain
public purpose or for the payment of certain
obligations of the municipal corporation. There is
no discretion given to the municipal officer, the
treasurer, to decide WON to disburse this public
fund because the responsibility is now ministerial
on his part. The basis of the authority to disburse
public fund is the appropriation ordinance enacted
by the sanggunian.
So we have mentioned that the authority of the
municipal corporation that is not subject to the control of
the state pertains only to patrimonial property, which
includes the funds of the municipal corporation derived,
let us say, from the operation of a business undertaking,
ex. Operation of markets.
C) Power to negotiate and secure financial grants
from international or even local assistance
agencies.
Q: If the municipal corporation negotiates with the US
government under this USA program, is there a need
for the municipal corporation to get authority from
the national government?
A: Under the LGC particularly Section 23, there is
already basis for the municipal corporation to
negotiate and secure financial grants or even to
receive donations in kind without prior permission or
authority from any agency or office of the national
government. That is the general rule. Exception to
this rule, meaning the only situation where there
should be prior authority from the national
government to any of its agencies or offices is where
there is a national security implication in such grant.
D) Power to close a road or street.
Prior to the enactment of the present LGC, R.A 7160, the
municipal corporation does not have the authority to
order the closure of such public facility unless it is
ordained in the charter of the municipal corporation.
Municipality of Cavite vs. Roxas
30 Phil 602
SC ruled that the Municipality of Cavite did not
have the power to withdraw an integral portion of a
public plaza from public use and, after such
withdrawal, to lease such portion to some individuals
for private use. The Municipality of Cavite already
exceeded its authority. Being a state property, the
public plaza can only be disposed upon authority of
the state. In other words, such property was outside
the commerce of man. It is an ultra vires act.
Cebu Oxygen and Acetylene Co., Inc vs.
Bercilles
66 SCRA 481
The court ruled that under the city charter of
Cebu, the municipal corporation of Cebu is
empowered to withdraw a city road from public use
and thus after such withdrawal of this road, therefore
it becomes a patrimonial property and if it is already
a patrimonial property, it becomes therefore
susceptible to any disposition that may be made by
the municipal corporation of Cebu.
Villanueva vs. Castañida
154 SCRA 142
Petitioners constructed stalls at the public plaza of
the municipal of San Fernando and when the
123 | P a g e
municipal government of San Fernando tried to
demolish these stalls, petitioners refused because
they have already leased the portion where they
made such construction. Is it within the authority of
the municipal corporation to demolish despite the
earlier grant of a lease to the petitioners? Yes,
because this is a public property that is outside the
commerce of man. Therefore, it could not be disposed
of nor can it be leased to some individuals.
Upon the effectivity of LGC, you have Section 21
confirming the power to the municipal corporation and
that is through an ordinance. The local government may
either open or close permanently or temporarily such a
public facility: Roads, Alleys, Parks, Squares (RAPS).
For the passage of an ordinance, at least 2/3 votes of all
the members of the sanggunian members is necessary
for the permanent closure or subsequent withdrawal of
such RAPS. But this permanent closure applies only to a
local RAPS because if it is classified as national public
facility, it now belongs to the state. The authority given
to the municipal corporation under the LGC is only
temporary in nature. Let us say during emergencies or
the holding of fiestas or let us say the need for the repair
of a road, then there may be closure of such road.
These are merely temporary in nature. If the case of a
temporary closure, only a simple majority of the
members of the sanggunian is needed. So the extent of
authority is limited. Section 21 also provides that in case
of the permanent closure of a freedom park, there must
be a provision for its relocation or transfer. Property
may therefore be conveyed or disposed of just like any
other property but in case of the permanent closure of
this facility, there must be a contingency for its
relocation, moreso in the case of freedom park.
Cruz vs. CA
153 SCRA
The city mayor of manila acted by himself in
withdrawing a public market from public use. Is this
within the power of the local chief executive of the
municipal corporation? SC ruled that on its own, the
chief executive of the LGU does not have such power
because the establishment and the maintenance of a
public market belongs to the legislative power of the
municipal corporation and therefore there is a need
for a joint action here by the sanggunian and the
local chief executive. While the sanggunian enacts
the ordinance, the local chief executive implements it.
E) Power to sue. This power to sue and the right to be
sued must be based again on the approval of the
sanggunian. There must be authorization from the
sanggunian for the commencement of suit by the
municipal corporation acting thru the local chief
executive unless the city councilors or the members of
the sanggunian by themselves or as representatives of
the city, bring the action, let us say, to prevent the
unlawful disbursement of the municipal funds, and the
case would necessarily involve the mayor himself.
Q: Whenever there is a controversy or investigation
involving the municipal corporation, may the
municipal corporation hire a private council?
A: No. Prior to the enactment of LGC, the authority to
represent municipal corporations is given to the
provincial prosecutor. But now, under Section 481 of
LGC, there are positions of provincial and city legal
officers created in provinces and cities. This is
mandatory. So it is the provincial or city legal officer
that must represent the municipal corporation.
But for municipalities, the creation of the position of
municipal legal officer is not mandatory. If the municipal
is a component unit of the province, it should be still
within the authority of the provincial attorney or the
provincial legal officer. Only in the absence of the city or
provincial legal officer, is the task of representing the
municipal corporation given to the city or provincial
prosecutor of the DOJ.
Q: Can the provincial or city prosecutor refuse or
decline to act as the council of the municipal
corporation?
A: Generally no, unless there be a valid or justifiable
reason, i.e. conflict of interest. For instance, the
other party involves certain relatives or even close
friends. This may be basis for the inhibition. Now
generally, if there be inhibition is founded on
justifiable reason, then the municipal corporation
shall make proper representation with the DOJ
Secretary for the appointment of another prosecutor
to represent the municipal corporation. If for any
valid reason the prosecutor of the DOJ cannot
represent the municipal corporation, it is only in such
situation that, a private council may represent the
municipal corporation. In this case, it is only the last
resort. But it is not quite an exception to the rule.
LIABILITIES OF MUNICIPAL CORPORATIONS
1. Contractual liability. As a general rule, the
municipal corporation is liable on contracts entered into
in its behalf by duly authorized municipal officers acting
within the scope of their powers, that is, if within the
corporate powers of the municipal corporation.
Generally, it is the local chief executive. Most often,
there is prior authorization given by the sanggunian. So
the local chief executive acts on the basis of the
authority, and this may be valid through an ordinance or
resolution enacted by the sanggunian.
So it follows that if the contract was entered into by the
municipal corporation through a non-authorized
municipal officer, such contract as a general rule, does
not bind the municipal corporation at all. But even then,
so long as such contract is within the power of the
municipal corporation, whatever defect by reason of the
non-authority of the municipal corporation, may be
ratified through the express or implied acceptance of the
benefits therefrom such contract. And if there be
124 | P a g e
ratification, this means that the municipal corporation
becomes liable on this contract. But not when the
subject matter of the contract is beyond the scope of
corporate powers of the municipal corporation because
here, it would now classify as ultra vires. It is null and
void. Therefore, it cannot be given effect and neither can
it be ratified. Also, if what has been received by the
municipal corporation was through a mistake or on
account of an illegal contract, certainly, there is an
obligation to make reimbursement of the amount. The is
because of the duty not to benefit and at the same time
not to take part in such illegal transactions. The premise
is the duty to do justice.
2. Liability for torts committed by its public
officer. This depends on the kinds of function the
municipal corporation performed. Meaning, you have to
distinguish whether the act performed by the municipal
officer is governmental or proprietary.
GENERAL RULE: In the performance of governmental
task, the municipal corporation cannot be made liable for
the torts committed by its municipal officers.
If you recall, several teenagers died in the tragic Ozone
Disco fire incident. There were defects in the
constructions and there were failure to comply with the
requirements of the National Building Code. The duty
belongs to the city building official of the city to make
the necessary inspections and regulations, which he
failed to do. This is a governmental task so Quezon City
was not held liable but the city officials. Just like the
duty to maintain peace and order of the city. It is a
governmental task, therefore the city or municipality
cannot be held liable in case there is failure to suppress
a public outcry. Who should be held liable? The
responsible officers including the police who are
negligent in the performance of their public duties should
be held personally liable.
EXCEPTIONS:
1. Special agents. For instance, the driver of the
dump truck did not report for work so the municipal
corporation called the mechanic to drive because
there is an urgent need to immediately cause the
repair of this public road. Then the dump truck
driven by the mechanic ran over a child. Is the
municipal corporation liable here? Yes. It is in the
performance of its governmental task, however, the
guy whom it called to drive the truck was not doing
his regular function. He is now classified as a special
agent. Therefore, the municipal corporation becomes
liable. On the other hand, if it was the regular driver,
a regular agent, the municipal corporation could not
be held liable.
2. Article 2189 of the Civil Code. Provinces,
cities, and municipalities shall be liable for the death
or injuries suffered by a person by reason of the
defective conditions of roads, street, bridges, public
facilities, and public buildings under its control or
supervision.
3. Article 34 of Civil Code. Municipalities and
chartered cities shall be secondarily liable where the
member of the police force of the city or municipality
fails to render aid or protection to those whose life or
property is in danger. The ones primarily liable are
the police officers. But take note under the present
law R.A 6975 as amended by 8551, the members of
the police are employees of the national government
and not anymore employees of LGU. So Article 34
was passed at that time when the members of the
police were employees of the municipal corporation.
4. Section 24 of LGC. The LGUs and their officials
are not exempt from liability for the death or injury
of persons or damage to property.
Torio vs. Funtanilla
The municipality of Marasige passed an ordinance
appropriating certain funds for the construction of a
stage and the municipal corporation invited
performers. On the performance night, the stage
collapsed causing the death of some of the
participants and physical injuries sustained by the
performers. Should the city government be held
liable? Yes. Festivities give special benefits to the
inhabitants but it is still in the performance of a non-
governmental function, it is a proprietary function. So
if it is a proprietary function, this means that should
there be injuries sustained by individuals because of
the holding of this festivity, the municipal corporation
is liable.
Farafocs vs. Province of Ilocos
The son of Farafocs was ran over by a dump truck
of the province of Ilocos, causing his death. At that
time, the truck was being used for the construction
and repair of a road. So the father sued the province.
Is the province liable? No. Certainly, the construction
and repair of a public facility including let us say a
public hospital is public in nature. It is a
governmental task and thus the doctrine of non-
suability applies. This doctrine extends to the agents
of the state. The municipal corporation cannot be held
liable for the torts committed by its municipal officers.
That is the general rule. Who then is liable? It should
be the municipal officer who caused the death of this
child. You know the municipal corporation just like
the state cannot ensure the faithful performance by
its municipal officers. In fact, the state and its agents,
the municipal corporations, cannot do any wrong. If a
wrong has been committed, it is because of the
wrongful act of its municipal officers and thus the
municipal officer should be made liable.
City of Manila vs. Tuitico
One starry night in January of 1958, respondent
took few steps forward without realizing that there
was this open manhole. He suffered serious physical
injuries and he sued the City of Manila. Is the city of
manila liable? SC ruled yes, it is liable under Article
2189 of the Civil Code because the manhole is a
public facility. The City of Manila claimed that it is a
national highway and therefore owned by the state so
it should not be held liable. Yes, but the law clearly
provides that if it is under the control or supervision
125 | P a g e
of the municipal corporation, the latter is liable for the
torts committed by its municipal officer.

City of manila vs. IAC

179 SCRA 428

Respondent leased a lot at the North Cemetery

for 50 yrs. Buried in there is respondent’s deceased
relatives. Subsequently, the caretaker of the North
Cemetery exhumed the bones and placed them in a
sack and then to a repository. The heirs could no
loner find the bones of their deceased relatives and so
they sued the City of Manila. Is the city liable? Yes.
The maintenance and operation of a public cemetery
is a proprietary function. Being so, it is in the
discharge of business activity, which makes it liable.
There was a breach of the contract of lease.

Jimenez vs. City of Manila

150 SCRA 510

Petitioner was standing in an uncovered opening

at the public market and there was this huge nail,
which pierced his leg. So he sued the municipal
corporation. Is the municipal corporation liable? Yes.
You have here a public facility, although leased and
operated by a private entity, still under the control or
supervision of the municipal corporation. So Article
2189 applies in this case making the municipal
corporation liable.

126 | P a g e