I. ADMINISTRATIVE LAW 2.
System of legal principles to settle the conflicting claims
A. History, Definition, and Scope
History
Admin Law is a fairly new field in Political Law compared
to other laws. Under the Anglo-American System,
administrative law is not one of the traditionally
recognized parts of the law. It started in the US with the
creation of alphabet agencies under FDR’s
administration.
*Alphabet agencies are created to temper the effects of
capitalism after the US economy collapsed resulting for
the great depression.
As the modern life became more complex, the subjects of
government regulations correspondingly increased,
which caused a multiplication of government functions,
necessitating an enormous expansion of public
administration. Hence, the legislature had to create more
and more particular fields assigned to them and to which
the legislature and the courts were found not to be
equipped to administer properly and efficiently.
* These regulatory agencies; so called 4th branch of the
government.
*“The cost of regulation” should be the focus and not
the cost of creating admin agencies.
Definition
Widest sense - the entire system of laws under which the
machinery of the state works and by which the Ste
performs all government acts. It is the law that partners to
the operations of agencies, excepting congress and the
regular causes under the judiciary.
*The term would embrace all the laws that regulate or
control the administrative organization and operations of
the government including the legislative and judicial
branches.
Less comprehensive sense – that part of public law
which fixes the organization and determines the
competence of the administrative authorities, and
indicates to the individual, remedies for the violation of his
rights.
Definition by noted authorities:
1. branch of modern law which the executive department
acting as quasi-legislative or quasi-judicial capacity,
interferes with the conduct of an individual for the purpose
of promoting the well-being of the community, as under
laws regulating public corporations, business affected
with a public interest, professions, trades and callings,
rates and prices, laws for the protection of the public
health and safety and the promotion of the public
convenience and advantage.
of executive and administrative authority on the one hand
and of individual or private rights on the other.
3. Law concerning powers and procedures of
administrative agencies including specially the law
governing judicial review of administrative action.
Government of the Republic of the Philippines
Refers to the corporate governmental entity through
which the functions of government are exercised
throughout the Philippines, including, save as the contrary
appears from the context, the various arms through which
political authority is made effective in the Philippines,
whether pertaining to the autonomous regions, the
provincial, city, municipal or barangay subdivisions or
other forms of local government. (EO 292: [Sec. 2 (1)])
● Stresses that the government is an entity.
Corporation sole. Has political power
● Contrary or those not part of the government;
examples: MILF, NPA
● Other units that may be created by the
Constitution: regions, barangays, municipalities,
cities, and provinces.
B. Administrative Agencies
Sec. 2(4), (11), Introductory Provisions,
Administrative Code
(4) Agency of the Government refers to any of the
various units of the Government, including a department,
bureau, office, instrumentality, or government-owned or
controlled corporation, or a local government or a distinct
unit therein.
(11) Regulatory agency refers to any agency expressly
vested with jurisdiction to regulate, administer or
adjudicate matters affecting substantial rights and
interest of private persons, the principal powers of which
are exercised by a collective body, such as a commission,
board or council. (Introductory, Administrative Code).
Discussion: Two types of instrumentalities: (1) GOCCs
or (2) SUCs
Three powers of admin agencies:
1. Regulate
2. Administer
3. Adjudicate
Two requisites to make a regulatory agency: (1) The 3
powers and (2) the power is reposed on a collegial body
(not all the time, may be on 1 person such as a Secretary).
Regulatory agencies and administrative agencies are
used interchangeably.
CASE:
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Republic vs. CA, G.R. No. 90482 (1991): An
administrative agency is defined as “[a] government body
charged with administering and implementing particular
legislation. The term ‘agency’ includes any department,
independent establishment, commission, administration,
authority, board or bureau x x x.”
Discussion: Incomplete and general definition.
Adjudication in admin law: quasi-legislation.
Are all three powers present in one agency? No.
How are agencies created? By statues and the
Constitution.
2. Creation and Abolition of Administrative Agencies
CASE:
Eugenio vs. CSC, G.R. No. 115863 (1995): An office
created by the legislature is wholly within the power of that
body, and it may prescribe the mode of filing the office
and the powers and duties of the incumbent, and, if it sees
fit, abolish the office.
● Under the Administrative Code of 1987, the
purpose of attaching one functionally inter-related
government agency to another is to attain “policy
and program coordination”.
Discussion: An administrative agency created by law
can only be abolished by a legislative act as well.
Sec. 31 in relation to Secs. 21-23, Book III,
Administrative Code
Section 31. Continuing Authority of the President to
Reorganize his Office. - The President, subject to the
policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing
authority to reorganize the administrative structure of the
Office of the President. For this purpose, he may take any
of the following actions:
(1) Restructure the internal organization of the Office of
the President Proper, including the immediate Offices, the
Presidential Special Assistants/Advisers System and the
Common staff Support System, by abolishing,
consolidating or merging units thereof or transferring
functions from one unit to another;
(2) Transfer any function under the Office of the President
to any other Department or Agency as well as transfer
functions to the Office of the President from other
Departments and Agencies; and
(3) Transfer any agency under the Office of the President
to any other department or agency as well as transfer
agencies to the Office of the President from other
departments or agencies.
Section 21. Organization. - The Office of the President
shall consist of the Office of the President Proper and the
agencies under it.
Section 22. Office of the President Proper. -
(1) The Office of the President Proper shall consist of the
Private Office, the Executive Office, the Common Staff
Support System, and the Presidential Special
Assistants/Advisers System;
(2) The Executive Office refers to the Offices of the
Executive Secretary, Deputy Executive Secretaries and
Assistant Executive Secretaries;
(3) The Common Staff Support System embraces the
offices or units under the general categories of
development and management, general government
administration and internal administration; and
(4) The President Special Assistants/Advisers System
includes such special assistants or advisers as may be
needed by the President.
Section 23. The Agencies under the Office of the
President. - The agencies under the Office of the
President refer to those offices placed under the
chairmanship of the President, those under the
supervision and control of the President, those under the
administrative supervision of the Office of the President,
those attached to it for policy and program coordination,
and those that are not placed by law or order creating
them under any specific department.
CASES:
Pichay vs. Office of the Deputy Executive Secretary,
677 SCRA 408 (2012): Under Section 31 (1) of EO 292,
the President can reorganize the Office of the President
Proper by abolishing, consolidating or merging units, or
by transferring functions from one unit to another. In
contrast, under Section 31 (2) and (3) of EO 292, the
President’s power to reorganize offices outside the Office
of the President Proper but still within the Office of the
President is limited to merely transferring functions or
agencies from the Office of the President to Departments
or Agencies, and vice versa.
● C-A-R-C-A-R: (Canonizado v. Aguirre)
“Reorganization takes place when there is an
alteration of the existing structure of government
offices or units therein, including the lines of
control, authority and responsibility between
them. It involves a reduction of personnel,
consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions.”
● Purpose of Reorganization: (Domingo v. Zamora)
To remain effective and efficient, the Office of the
President must be capable of being shaped and
reshaped by the President in the manner he
deems fit to carry out his directives and policies.
Biraogo vs PTC, G.R. No. 192935 (2010): The PTC was
not part of the structure of the Office of the President prior
to the enactment of Executive Order No. 1.
Discussion: One can only reorganize what is already
existing.
3. Control of Administrative Action
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Sec. 17, Art. VII; Secs. 21-22, Art. VI; Sec.1, Art. VIII;
Secs 12-13, Art. XI, all of the 1987 Constitution
Art. 7, Civil Code
1987 Constitution
VII
SECTION 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
VI
SECTION 21. The Senate or the House of
Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with
its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall
be respected.
SECTION 22. The heads of departments may upon their
own initiative, with the consent of the President, or upon
the request of either House, as the rules of each House
shall provide, appear before and be heard by such House
on any matter pertaining to their departments. Written
questions shall be submitted to the President of the
Senate or the Speaker of the House of Representatives
at least three days before their scheduled appearance.
Interpellations shall not be limited to written questions, but
may cover matters related thereto. When the security of
the State or the public interest so requires and the
President so states in writing, the appearance shall be
conducted in executive session.
VIII
SECTION 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
XI
SECTION 12. The Ombudsman and his Deputies, as
protectors of the people, shall act promptly on complaints
filed in any form or manner against public officials or
employees of the Government, or any subdivision,
agency or instrumentality thereof, including government-
owned or controlled corporations, and shall, in
appropriate cases, notify the complainants of the action
taken and the result thereof.
SECTION 13. The Office of the Ombudsman shall have
the following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person,
any act or omission of any public official, employee, office
or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any
public official or employee of the Government, or any
subdivision, agency or instrumentality thereof, as well as
of any government-owned or controlled corporation with
original charter, 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.
(3) Direct the officer concerned to take appropriate action
against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance
therewith.
(4) Direct the officer concerned, in any appropriate case,
and subject to such limitations as may be provided by law,
to furnish it with copies of documents relating to contracts
or transactions entered into by his office involving the
disbursement or use of public funds or properties, and
report any irregularity to the Commission on Audit for
appropriate action.
(5) Request any government agency for assistance and
information necessary in the discharge of its
responsibilities, and to examine, if necessary, pertinent
records and documents.
(6) Publicize matters covered by its investigation when
circumstances so warrant and with due prudence.
(7) Determine the causes of inefficiency, red tape,
mismanagement, fraud, and corruption in the
Government and make recommendations for their
elimination and the observance of high standards of
ethics and efficiency.
(8) Promulgate its rules of procedure and exercise such
other powers or perform such functions or duties as may
be provided by law.
Civil Code
ART 7
Article 7. Laws are repealed only by subsequent ones,
and their violation or non-observance shall not be
excused by disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with the
Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws
or the Constitution. (5a)
CASES:
Mondano vs. Silvosa, G.R. No. L-7708 (1955):
Supervision: overseeing or the power or authority of an
officer to see that subordinate officers perform their
duties.
● Control: power of an officer to alter or modify or
nullify or set aside what a subordinate officer had
done in the performance of his duties and to
substitute the judgment of the former for that of
the latter.
Phil. Gamefowl Commission vs. IAC, 146 SCRA 294
(1986): Review: reconsideration or reexamination for
purposes of correction.
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Macalintal vs. COMELEC, G.R. No. 157013 (2003).
Only the Concurring and Dissenting Opinion of
Puno, J.: Our Constitution has specifically given the
COMELEC the power to enforce and administer all laws
and regulations relative to the conduct of an election:
insulate COMELEC from the virus of partisan politics.
● The power of oversight embraces all activities
undertaken by Congress to enhance its
understanding of and influence over the
implementation of legislation it has enacted.
● Categories of congressional oversight
functions: scrutiny, investigation and
supervision.
a. Scrutiny: Congress may request information and
report from the other branches of government. It can give
recommendations or pass resolutions for consideration of
the agency involved.
● Purpose: determine economy and efficiency of
the operation of government activities.
● Examples: budget hearings, question hour,
power of confirmation
b. Congressional investigation:
● Limitations: (1) it must be in aid of its legislative
functions; (2) it must be conducted in accordance
with duly published rules of procedure, and; (3)
the persons appearing therein are afforded their
constitutional rights.
c. Legislative supervision: allows Congress to
scrutinize the exercise of delegated law-making authority
and permits Congress to retain part of that delegated
authority.
● Example: veto power
ABAKADA Guro vs. Purisima, G.R. No. 166715 (2008):
In exercising discretion to approve or disapprove the IRR
based on a determination of whether or not they
conformed with the provisions of RA 9335, Congress
arrogated judicial power unto itself, a power exclusively
vested in this Court by the Constitution.
● Administrative regulations enacted by
administrative agencies to implement and
interpret the law which they are entrusted to
enforce have the force of law and are entitled to
respect.
C. Powers of Administrative Agencies
CASES:
Soriano vs. Laguardia, G.R. No. 164785 (2009): Sec.
3(k) provides, "To exercise such powers and functions as
may be necessary or incidental to the attainment of the
purposes and objectives of this Act x x x." Indeed, the
power to impose preventive suspension is one of the
implied powers of MTRCB.
● Administrative agencies have powers and
functions which may be (I-R-A-Q2) administrative,
investigatory, regulatory, quasi-legislative, or
quasi-judicial, or a mix of the five, as may be
conferred by the Constitution or by statute. They
have in fine only such powers or authority as are
granted or delegated, expressly or impliedly, by
law. And in determining whether an agency has
certain powers, the inquiry should be from the law
itself. But once ascertained as existing, the
authority given should be liberally construed.
● Implied powers: those that can be inferred or are
implicit in the wordings or conferred by necessary
or fair implication of the enabling act.
1. Quasi-Legislative/Rule-Making
a. In General
CASES:
Smart Communications vs. NTC, 408 SCRA 768
(2003): NTC’s Memorandum Circular No. 13-6-2000 and
its Memorandum was pursuant to its quasi-
legislative/rule-making power.
● Quasi-legislative/rule-making power: the power
to make rules and regulations which results in
delegated legislation that is within the confines of
the granting statute and the doctrine of non-
delegability and separability of powers.
Provincial Bus Operators vs. DOLE, G.R. No. 202275
(2018): Department Order No. 118-12 enforces the
application of labor standards provisions, i.e., payment of
minimum wage and grant of social welfare benefits in the
public bus transportation industry. Memorandum Circular
No. 2012-001 was issued by the LTFRB in the exercise of
its power to prescribe the terms and conditions for the
issuance of a certificate of public convenience and its
power to promulgate and enforce rules and regulations on
land transportation public utilities.
b. Doctrine of Delegation of Legislative Power
CASES:
Edu vs. Ericta, G.R. No. L-32096 (1970): Congress may
constitutionally delegate authority to promulgate rules and
regulations to implement a given legislation and
effectuate its policies, for the reason that the legislature
often finds it impracticable (if not impossible) to anticipate
and provide for the multifarious and complex situations
that may be met in carrying the law into effect.
● What cannot be delegated is the authority under
the Constitution to make laws and to alter and
repeal them.
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Solid Homes vs. Payawal, G.R. No. 84811 (1989):
Statutes conferring powers on their administrative
agencies must be liberally construed to enable them to
discharge their assigned duties in accordance with the
legislative purpose.
Eastern Shipping Lines vs. POEA, 166 SCRA 533
(1988): Reason for the doctrine: The growth of society
has ramified its activities and created peculiar and
sophisticated problems that the legislature cannot be
expected reasonably to comprehend.
● With the proliferation of specialized activities and
their attendant peculiar problems, the national
legislature has found it more and more necessary
to entrust to administrative agencies the authority
to issue rules to carry out the general provisions
of the statute. This is called the “power of
subordinate legislation.”
● With this power, administrative bodies may
implement the broad policies laid down in a
statute by “filling in” the details which the
Congress may not have the opportunity or
competence to provide.
KMU vs. Garcia, 239 SCRA 386 (1994): Potestas
delegata non delegari potest: What has been delegated
cannot be delegated.
● Based on the ethical principle that such a
delegated power constitutes not only a right but a
duty to be performed by the delegate through the
instrumentality of his own judgment and not
through the intervening mind of another.
● A further delegation of such power would indeed
constitute a negation of the duty in violation of the
trust reposed in the delegate mandated to
discharge it directly.
c. Requisites and Limits of Permissible
Delegation/Tests for Valid Delegation
BOC Employees vs. Teves, G.R. No. 181704 (2011):
RA [No.] 9335 adequately states the policy and standards
to guide the President in fixing revenue targets and the
implementing agencies in carrying out the provisions of
the law: the declared policy of optimization of the
revenue-generation capability and collection of the
BIR and the BOC is infused with public interest.
Eastern Shipping, supra: Memorandum Circular No. 2:
administrative regulation. The model contract prescribed
thereby has been applied in a significant number of the
cases without challenge by the employer. The power of
the POEA (and before it the National Seamen Board) in
requiring the model contract is not unlimited as there is a
sufficient standard (to protect the rights of overseas
Filipino workers to “fair and equitable employment
practices”) guiding the delegate in the exercise of the
said authority.
● Completeness test: law must be complete in all
its terms and conditions when it leaves the
legislature such that when it reaches the delegate
the only thing he will have to do is enforce it.
● Sufficient standard test: there must be
adequate guidelines or limitations in the law to
map out the boundaries of the delegate’s
authority and prevent the delegation from running
riot.
o Other sufficient standards: “public
interest”, “justice and equity”, “public
convenience and welfare”, “simplicity,
economy and efficiency”, “sense and
experience of men”, and “national
security”.
● Both tests are intended to prevent a total
transference of legislative authority to the
delegate, who is not allowed to step into the
shoes of the legislature and exercise a power
essentially legislative.
DOTr vs. Philippine Petroleum Sea, G.R. No. 230107
(2018): The conferment on the OPMF Committee of the
authority to determine the amount of contribution after the
one-year imposition of the 10-centavo contribution has
fixed parameters:
● the purposes for which the fund was set up;
● the Fund shall be used to finance the following
activities:
o Immediate containment, removal and
clean-up operations of the PCG in all Oil
pollution cases, whether covered by this
Act or not; and
o Research, enforcement and monitoring
activities of relevant agencies such as
the PCG, MARINA and PPA, and other
ports authority of the DOTC,
Environmental Management Bureau of
the DENR, and the DOE;
● Ninety percent (90%) of the Fund shall be
maintained annually for the activities set forth
under item (a) of this paragraph;
● Any amounts specifically appropriated for said
Fund under the General Appropriations Act shall
be used exclusively for the activities set forth
under item (a) of this paragraph;
● In no case shall the Fund be used for personal
services expenditures except for the
compensation of those involved in clean-up
operations.
Tatad vs. Secretary, 284 SCRA 330 (1997): A standard
as general as the phrases "as far as practicable," "decline
of crude oil prices in the world market," and "stability of
5
the peso exchange rate to the US dollar" are neither
unclear nor inconcrete in meaning, but are in fact
determinable by the simple expedient of referring to their
dictionary meanings.
US vs. Ang Tang Ho, G.R. No. 17122 (1922): The
Legislature did not specify or define what was "any
cause," or what was "an extraordinary rise in the price of
rice, palay or corn." Neither did it specify or define the
conditions upon which the proclamation should be issued.
In the absence of the proclamation no crime was
committed.
Ynot vs. IAC, G.R. No. 74457 (1987): The phrase "may
see fit" is an extremely generous and dangerous
condition, if condition it is. It is laden with perilous
opportunities for partiality and abuse, and even
corruption.
d. Kinds of Rules: (L2-I2-C) Interpretative, Legislative,
Contingent, Letter of instructions, and Internal
Sec. 2(2)(3), Book VII, Administrative Code
SECTION 2. Mandate.—The Department shall be the
primary policy-making, programming, coordinating and
administrative entity of the Executive Branch of the
government in the field of labor and employment. It shall
assume primary responsibility for:
(2) The advancement of workers’ welfare by providing for
just and humane working conditions and terms of
employment;
(3) The maintenance of industrial peace by promoting
harmonious, equitable, and stable employment relations
that assure equal protection for the rights of all concerned
parties.
CASES:
ASTEC vs. ERC, G.R. No. 192117 (2012): The policy
guidelines of the ERC on the treatment of discounts
extended by power suppliers are interpretative
regulations. The policy guidelines merely interpret R.A.
No. 7832 and its IRR, particularly on the computation of
the cost of purchased power. The policy guidelines did not
modify, amend or supplant the IRR. However, the
grossed-up factor mechanism amends the IRR of R.A.
No. 7832 as it serves as an additional numerical standard
that must be observed and applied by rural electric
cooperatives in the implementation of the PPA. It does
not appear from the records that the grossed-up
factor mechanism was published or submitted to the
U.P. Law Center.
● Several exceptions to the requirement of
publication:
a. Interpretative regulation: “needs nothing
further than its bare issuance for it gives no
real consequence more than what the law
itself has already prescribed.” It “add[s]
nothing to the law” and “do[es] not affect the
substantial rights of any person.”
b. Internal regulation: seeks to regulate only
the personnel of the administrative agency
and not the general public.
c. Letter of instruction: concerning rules or
guidelines to be followed by subordinates in
the performance of their duties.
Board of Trustees vs. Velasco, 641 SCRA 372 (2011):
Assailed resolutions pertained only to internal rules
meant to regulate the personnel of the GSIS: Resolution
No. 372 was about the new GSIS salary structure,
Resolution No. 306 was about the authority to pay the
2002 Christmas Package, and Resolution No. 197 was
about the GSIS merit selection and promotion plan. There
was no need for the publication or filing of these
resolutions with the UP Law Center.
Republic vs. Drugmakers Laboratories, G.R. 190837
(2014): AO 67, s. 1989 is actually the rule that originally
introduced the BA/BE testing requirement as a
component of applications for the issuance of CPRs
covering certain pharmaceutical products. As such, it is
considered an administrative regulation – a legislative
rule to be exact – issued by the Secretary of Health in
consonance with the express authority granted to him by
RA 3720 to implement the statutory mandate that all
drugs and devices should first be registered with the FDA
prior to their manufacture and sale.
● Circular Nos. 1 and 8, s. 1997 are not
administrative regulations. In fact, the only
purpose of these circulars is for the FDA to
administer and supervise the implementation of
the provisions of AO 67, s. 1989, including those
covering the BA/BE testing requirement,
consistent with and pursuant to RA 3720. It would
not affect the substantive rights of the parties;
therefore, no prior hearing, consultation, and
publication are needed for their validity.
Abakada Guro vs. Ermita, G.R. No. 168056 (2005):
Contingent rule; facts that the DOF Secretary must
establish to implement the RA 9337: (1) the value-added
tax collection as a percentage of gross domestic product
(GDP) of the previous year exceeds 2 4/5%, or (2)
National Government deficit as a percentage of GDP of
the previous year exceeds 1½%, when the President,
upon recommendation of the Secretary of Finance shall
raise the rate of VAT to 12% effective January 1, 2006.
Council of Teachers and Staff vs. Secretary, G.R. No.
216930 (2018): DO No. 31 is an administrative regulation
(internal regulation) addressed to DepEd personnel
providing for general guidelines on the implementation of
a new curriculum for Grades 1 to 10 in preparation for the
K to 12 basic education.
SM Land, Inc. vs. Bases Conversion, G.R. No. 203655
(2015): legislative rule: Pursuant to said repeated
6
directives from no less than the Chief Executive (it is
through these orders that the President ensures that laws
are faithfully executed, by handing out instructions to
subordinate executive officials and the public, in the form
of implementing rules and regulations, on how the law
should be executed by subordinate officials and complied
with by the public) the NEDA issued the JV Guidelines
providing the procedures for the coagulation of joint
ventures between the government and a private entity.
e. Requisites and Limits of Rule-making
Sec. 2(4), Book VII, Administrative Code — Rule
making is an agency process for the formulation,
amendment, or repeal of a rule.
Discussion: 3 Requisites for implementing
legislative rule (P-A-R):
1. Within the delegated authority: Promulgated by
the proper authority and passed completeness
test and sufficient standard test.
2. Reasonable: Requirement of substantive due
process
3. Issued pursuant to proper procedure: Sec. 3
Book VII
i. Filing with the UP- Law Center/ Office of
the National Administrative Register
(ONAR): 3 certified copies of the rule to
be adopted, if however in effect it must
file the same within 3 months. – if it is not
complied the rule cannot be the basis of
any sanction/ penalties.
Exceptions:
● Interpretative rules: bare issuance; give no real
consequence more than what the law itself has
already prescribed. It does not add anything to
the law nor does it involve rights and obligations
of parties. It is only an explanation of the law
which may be reversed by the Supreme Court.
● Contingent rules- follows the same procedure as
that of an implementing rule, as that of a
legislative rule.
● Internal rules- mere issuance to its personnel
● Letter of instruction- mere issuance because it is
only concerned with rules or guidelines to be
followed by subordinates in the performance of
their duties.
CASES:
Commissioner of Customs vs. Hypermix, 664 SCRA
666 (2012): Rules and regulations, which are the product
of a delegated power to create new and additional legal
provisions that have the effect of law, should be within the
scope of the statutory authority granted by the legislature
to the administrative agency.
DOH vs. Philip Morris, G.R. No. 202943 (2015): RA
9211 is a special legislation while RA 7394 is broader and
more general in scope.
● Lex specialis derogat generali: where two
statutes are of equal theoretical application to a
particular case, the one specially designed
therefore should prevail.
Tatad, supra: Court holds that the Executive department
failed to follow faithfully the standards set by R.A. No.
8180 when it considered the extraneous factor of
depletion of the OPSF fund.
f. Administrative Procedule in Rule-making
a SECTION 1. Scope.—This Book shall be applicable to all
agencies as defined in the next succeeding section,
except the Congress, the Judiciary, the Constitutional
Commissions, military establishments in all matters
relating exclusively to Armed Forces personnel, the Board
of Pardons and Parole, and state universities and
colleges.
SECTION 2. Definitions.—As used in this Book:
(1) “Agency” includes any department, bureau, office,
commission, authority or officer of the National
Government authorized by law or executive order to make
rules, issue licenses, grant rights or privileges, and
adjudicate cases; research institutions with respect to
licensing functions; government corporations with respect
to functions regulating private right, privileges, occupation
or business; and officials in the exercise of disciplinary
power as provided by law.
SECTION 3. Filing.—
(1) Every agency shall file with the University of the
Philippines Law Center three (3) certified copies of every
rule adopted by it. Rules in force on the date of effectivity
of this Code which are not filed within three (3) months
from that date shall not thereafter be the basis of any
sanction against any party or persons.
(2) The records officer of the agency, or his equivalent
functionary, shall carry out the requirements of this
section under pain of disciplinary action.
(3) A permanent register of all rules shall be kept by the
issuing agency and shall be open to public inspection.
SECTION 4. Effectivity.—In addition to other rule-
making requirements provided by law not inconsistent
with this Book, each rule shall become effective fifteen
(15) days from the date of filing as above provided unless
a different date is fixed by law, or specified in the rule in
cases of imminent danger to public health, safety and
welfare, the existence of which must be expressed in a
statement accompanying the rule. The agency shall take
appropriate measures to make emergency rules known to
persons who may be affected by them.
SECTION 5. Publication and Recording.—The
University of the Philippines Law Center shall:
7
(1) Publish a quarterly bulletin setting forth the text of rules
filed with it during the preceding quarter; and
(2) Keep an up-to-date codification of all rules thus
published and remaining in effect, together with a
complete index and appropriate tables.
SECTION 6. Omission of Some Rules.—
(1) The University of the Philippines Law Center may omit
from the bulletin or the codification any rule if its
publication would be unduly cumbersome, expensive or
otherwise inexpedient, but copies of that rule shall be
made available on application to the agency which
adopted it, and the bulletin shall contain a notice stating
the general subject matter of the omitted rule and new
copies thereof may be obtained.
(2) Every rule establishing an offense or defining an act
which, pursuant to law is punishable as a crime or subject
to a penalty shall in all cases be published in full text.
SECTION 7. Distribution of Bulletin and Codified
Rules.—The University of the Philippines Law Center
shall furnish one (1) free copy each of every issue of the
bulletin and of the codified rules or supplements to the
Office of the President, Congress, all appellate courts and
the National Library. The bulletin and the codified rules
shall be made available free of charge to such public
officers or agencies as the Congress may select, and to
other persons at a price sufficient to cover publication and
mailing or distribution costs.
SECTION 9. Public Participation.—
(1) If not otherwise required by law, an agency shall, as
far as practicable, publish or circulate notices of proposed
rules and afford interested parties the opportunity to
submit their views prior to the adoption of any rule.
(2) In the fixing of rates, no rule or final order shall be valid
unless the proposed rates shall have been published in a
newspaper of general circulation at least two (2) weeks
before the first hearing thereon.
(3) In case of opposition, the rules on contested cases
shall be observed.
CASES:
Hypermix, supra: CMO 27-2003 affects the substantial
rights of wheat importers and should have then observed
the requirements of notice, hearing, and publication.
● In considering a legislative rule a court is free to
make three inquiries: (i) whether the rule is within
the delegated authority of the administrative
agency; (ii) whether it is reasonable;
and (iii) whether it was issued pursuant to proper
procedure.
● In the case of an interpretative rule, a court is free
to (i) give the force of law to the rule; (ii) go to the
opposite extreme and substitute its judgment;
or (iii) give some intermediate degree of
authoritative weight to the interpretative rule.
● When an administrative rule is merely
interpretative in nature, its applicability needs
nothing further than its bare issuance, for it gives
no real consequence more than what the law
itself has already prescribed. When, on the other
hand, the administrative rule goes beyond merely
providing for the means that can facilitate or
render least cumbersome the implementation of
the law but substantially increases the burden of
those governed, it behooves the agency to
accord at least to those directly affected a chance
to be heard, and thereafter to be duly informed,
before that new issuance is given the force and
effect of law.
Quezon City PTCA vs. DepEd, G.R. No. 188720 (2016):
Notice and hearing are not essential when an
administrative agency acts pursuant to its rule-making
power.
● All that is required for the validity of rules
promulgated by administrative agencies is the
filing of three (3) certified copies with the
University of the Philippine Law Center. Within 15
days of filing, administrative rules become
effective.
GMA Network vs. COMELEC, supra: RA 9165
introduced a radical change in the manner in which the
rules on airtime for political advertisements are to be
reckoned. As such there is a need for adequate and
effective means by which they may be adopted,
disseminated and implemented. It is not enough that they
be published - or explained - after they have been
adopted.
Discussion: Reconciling QC PTCA case and GMA
Network case: The difference lies on public participation.
- In GMA Network case, the COMELEC rules itself
requires a hearing, when a policy involves an
increase or imposition.
- If it is about drafting of implementing rules, no hearing
is required. What is only required by the Admin Code
is participation, meaning, you just send out the
notices if you want to say anything and submit it to
the administrative agency and they will consider that,
but hearing is required as to law making, it is required
on the part of Congress, but not on the part of the
administrative agency, after all its only job is to
implement.
NEA vs. Gonzaga, G.R. No. 158761 (2007): ECEC
applies to all electric cooperatives. It is not a mere internal
memorandum, interpretative regulation, or instruction to
subordinates. Thus, it should be published.
ASTEC vs. ERC, supra: The grossed-up factor
mechanism does not merely interpret R.A. No. 7832 or its
IRR. It is also not merely internal in nature. The grossed-
up factor mechanism amends the IRR by providing an
additional numerical standard that must be observed and
applied in the implementation of the PPA. The grossed-
up factor mechanism is therefore an administrative rule
8
that should be published and submitted to the U.P. Law
Center in order to be effective.
● Administrative rules and regulations must also be
published if their purpose is to enforce or
implement existing law pursuant also to a valid
delegation.
People vs. Que Po Lay, 94 Phil. 640 (1954): Circular No.
20 of the Central Bank which prescribes a penalty for its
violation should be published before becoming effective.
● Before the public is bound by its contents,
especially its penal provisions, a law, regulation
or circular must first be published and the people
officially and specifically informed of said
contents and its penalties.
g. Enforcement
CASES:
Peralta vs. CA, G.R. No. 141966 (2005): CSC are
empowered to enforce Civil Service laws, rules, policies
and standards on personnel management or personnel
actions of national and local government agencies within
their jurisdiction, and to enforce the same laws, rules,
policies and standards with respect to the conduct of
public officers and employees. From this power
necessarily flows the authority to issue opinions and
rulings regarding personnel management in both national
and local government agencies.
Diocese of Bacolod vs. COMELEC, G.R. No. 205728
(2015): Petitioner posted 2 tarpaulins (6 ft by10 ft.) within
the private compound of the San Sebastian Cathedral of
Bacolod. Respondent, however, tried to regulate their
expression. The Court held that COMELEC Resolution
No. 9615 and the Fair Election Act only intend to prevent
the posting of election propaganda in private property
without the consent of the owners of such private
property.
2. Quasi-Judicial/Adjudicatory
a. In General
SECTION 2 (5) “Contested case”
- any proceeding, including licensing, in which the
legal rights, duties or privileges asserted by specific
parties as required by the Constitution or by law are
to be determined after hearing.
(9) “Adjudication
- an agency process for the formulation of a final
order.
(10) “License”
- includes the whole or any part of any agency permit,
certificate, passport, clearance, approval,
registration, charter, membership, statutory
exemption or other form of permission, or regulation
of the exercise of a right or privilege.
SECTION 9 (3) In case of opposition, the rules on
contested cases shall be observed.
CASES:
Smart Communications, supra: Quasi-
judicial/administrative adjudicatory power: the power to
hear and determine questions of fact to which the
legislative policy is to apply and to decide in accordance
with the standards laid down by the law itself in enforcing
and administering the same law.
● In carrying out their quasi-judicial functions, the
administrative officers or bodies are required to
investigate facts or ascertain the existence of
facts, hold hearings, weigh evidence, and draw
conclusions from them as basis for their official
action and exercise of discretion in a judicial
nature.
Provincial Bus Operators vs. DOLE, supra:
Determining whether the act under review is quasi-
legislative or quasi-judicial is necessary in
determining when judicial remedies may properly be
availed of.
Santiago vs. Bautista, 32 SCRA 188 (1970): There is
nothing on record about any rule of law that provides that
when teachers sit down to assess the individual merits of
their pupils for purposes of rating them for honors, such
function involves the determination of what the law is and
that they are therefore automatically vested with judicial
or quasi-judicial functions.
● Before tribunal board, or officer may exercise
judicial or quasi- judicial acts, it is necessary that
there be a law that give rise to some specific
rights of persons or property under which adverse
claims to such rights are made, and the
controversy ensuing therefrom is brought, in turn,
before the tribunal, board or officer clothed with
power and authority to determine what that law is
and thereupon adjudicate the respective rights of
the contending parties.
Monetary Board vs. Philippine Veterans Bank, G.R.
No. 189571 (2015): BSP Monetary Board is a quasi-
judicial agency exercising quasi-judicial powers or
functions. It has the power to issue subpoena, to sue for
contempt those refusing to obey the subpoena without
justifiable reason, to administer oaths and compel
presentation of books, records and others, needed in its
examination, to impose fines and other sanctions and to
issue cease and desist order. Section 37 of Republic Act
No. 7653, in particular, explicitly provides that the BSP
Monetary Board shall exercise its discretion in
determining whether administrative sanctions should be
imposed on banks and quasi-banks, which necessarily
9
implies that the BSP Monetary Board must conduct some
form of investigation or hearing regarding the same.
Basiana Mining vs. Secretary, G.R. No. 191705 (2016):
In approving an MPSA, the DENR Secretary does not
determine the legal rights and obligations of adversarial
parties, which are necessary in adjudication.
● A government agency performs
adjudicator/functions when it renders decisions or
awards that determine the rights of adversarial
parties, which decisions or awards have the same
effect as a judgment of the court.
Rosales vs. ERC, G.R. No. 201852 (2016): As defined
above, the ERC exercised neither judicial nor quasi-
judicial function. In issuing and implementing the RSEC-
WR and Resolution No. 14, it was not called upon to
adjudicate the rights of contending parties to exercise, in
any manner, discretion of a judicial or quasi-judicial
nature. Instead, RSEC-WR and Resolution No. 14 were
done in the exercise of the ERC's quasi-legislative and
administrative functions. It was in the nature of
subordinate legislation, promulgated in the exercise of its
delegated power. Particularly, the ERC applied its rule-
making power as expressly granted by Republic Act
(R.A.) No. 9136 ("Electric Power Industry Reform Act of
2001" or EPIRA).
PSALM vs. Sem- Calaca, G.R. No. 204719 (2016):
Rulings of administrative agencies like the ERC are
accorded great respect.
● Section 43 (u), RA 9136, or the EPIRA Law,
grants the ERC the original and exclusive
jurisdiction "over all cases involving disputes
between and among participants or players in the
energy sector.
● The ERC merely performed its statutory function
of resolving disputes among the parties who are
players in the industry, and exercised its quasi-
judicial and administrative powers as outlined in
jurisprudence by interpreting the contract
between the parties in the present dispute, the
so-called APA.
Subido vs. CA, supra: Nowhere from the text of the law
nor its Implementing Rules and Regulations (IRR) can we
glean that the Anti-Money Laundering Council (AMLC)
exercises quasi-judicial functions whether the actual
preliminary investigation is done simply at its behest or
conducted by the Department of Justice (DOJ) and the
Ombudsman.
● If the only purpose for investigation is to evaluate
evidence submitted before it based on the facts
and circumstances presented to it, and if the
agency is not authorized to make a final
pronouncement affecting the parties, then there
is an absence of judicial discretion and judgment.
SEC vs. Universal Rightfield, G.R. No. 181381 (2015):
Under its regulatory responsibilities, the SEC may pass
upon applications for, or may suspend or revoke (after
due notice and hearing), certificates of registration of
corporations, partnerships and associations (excluding
cooperatives, homeowners associations, and labor
unions); compel legal and regulatory compliances;
conduct inspections; and impose fines or other penalties
for violations of the Revised Securities Act, as well as
implementing rules and directives of the SEC, such as
may be warranted. The revocation of registration of
securities and permit to sell them to the public is not an
exercise of the SEC's quasi-judicial power, but of its
regulatory power. When the SEC exercises its incidental
power to conduct administrative hearings and make
decisions, it does so in the course of the performance of
its regulatory and law enforcement function.
b. Incidental Powers
Secs. 13, 17, Book VII, Administrative Code
SECTION 13. Subpoena.—In any contested case, the
agency shall have the power to require the attendance of
witnesses or the production of books, papers, documents
and other pertinent data, upon request of any party before
or during the hearing upon showing of general relevance.
Unless otherwise provided by law, the agency may, in
case of disobedience, invoke the aid of the Regional Trial
Court within whose jurisdiction the contested case being
heard falls. The Court may punish contumacy or refusal
as contempt.
SECTION 17. Licensing Procedure.—
(1) When the grant, renewal, denial or cancellation of a
license is required to be preceded by notice and hearing,
the provisions concerning contested cases shall apply
insofar as practicable.
(2) Except in cases of willful violation of pertinent laws,
rules and regulations or when public security, health, or
safety require otherwise, no license may be withdrawn,
suspended, revoked or annulled without notice and
hearing.
CASES:
DOH vs. Camposano, supra: Neither the PCAGC
under EO 151 nor the Ad Hoc Investigating
Committee created under AO 298 had the power to
impose any administrative sanctions directly. Their
authority was limited to conducting investigations
and preparing their findings and recommendations.
● The power to impose sanctions belonged to
the disciplining authority, who had to observe
due process prior to imposing penalties.
Salazar vs. Achacoso, 183 SCRA 145 (1990): Only a
judge may issue warrants of search and arrest pursuant
to the Constitution. The Secretary of Labor, not being a
judge, may no longer issue search or arrest warrants.
10
Public Hearing vs. SM Prime Holdings, 631 SCRA 73
(2010): LLDA has the power to impose fines in the
exercise of its function as a regulatory and quasi-judicial
body with respect to pollution cases in the Laguna Lake
region.
● Section 4(i) of E.O. 927: LLDA is given authority
to "exercise such powers and perform such other
functions as may be necessary to carry out its
duties and responsibilities under this Executive
Order." The intendment of the law: to clothe the
LLDA not only with the express powers granted
to it, but also those which are implied or incidental
but, nonetheless, are necessary or essential for
the full and proper implementation of its purposes
and functions.
c. Administrative Procedure in Adjudication of
Cases
Sec. 16, Art. III, 1987 Constitution: All persons shall
have the right to a speedy disposition of their cases before
all judicial, quasi-judicial, or administrative bodies.
Secs. 2(5), 10-17, Book VII, Administrative Code:
(5) “Contested case”
- any proceeding, including licensing, in which the legal
rights, duties or privileges asserted by specific parties as
required by the Constitution or by law are to be
determined after hearing.
SECTION 10. Compromise and Arbitration.—To expedite
administrative proceedings involving conflicting rights or
claims and obviate expensive litigations, every agency
shall, in the public interest, encourage amicable
settlement, compromise and arbitration.
SECTION 11. Notice and Hearing in Contested Cases.—
(1) In any contested case all parties shall be entitled to
notice and hearing. The notice shall be served at least five
(5) days before the date of the hearing and shall state the
date, time and place of the hearing.
(2) The parties shall be given opportunity to present
evidence and argument on all issues. If not precluded by
law, informal disposition may be made of any contested
case by stipulation, agreed settlement or default.
(3) The agency shall keep an official record of its
proceedings.
SECTION 12. Rules of Evidence.—In a contested case:
(1) The agency may admit and give probative value to
evidence commonly accepted by reasonably prudent men
in the conduct of their affairs.
(2) Documentary evidence may be received in the form of
copies or excerpts, if the original is not readily available.
Upon request, the parties shall be given opportunity to
compare the copy with the original. If the original is in the
official custody of a public officer, a certified copy thereof
may be accepted.
(3) Every party shall have the right to cross-examine
witnesses presented against him and to submit rebuttal
evidence.
(4) The agency may take notice of judicially cognizable
facts and of generally cognizable technical or scientific
facts within its specialized knowledge. The parties shall
be notified and afforded an opportunity to contest the facts
so noticed.
SECTION 13. Subpoena.—In any contested case, the
agency shall have the power to require the attendance of
witnesses or the production of books, papers, documents
and other pertinent data, upon request of any party before
or during the hearing upon showing of general relevance.
Unless otherwise provided by law, the agency may, in
case of disobedience, invoke the aid of the Regional Trial
Court within whose jurisdiction the contested case being
heard falls. The Court may punish contumacy or refusal
as contempt.
SECTION 14. Decision.—Every decision rendered by the
agency in a contested case shall be in writing and shall
state clearly and distinctly the facts and the law on which
it is based. The agency shall decide each case within
thirty (30) days following its submission. The parties shall
be notified of the decision personally or by registered mail
addressed to their counsel of record, if any, or to them.
SECTION 15. Finality of Order.—The decision of the
agency shall become final and executory fifteen (15) days
after the receipt of a copy thereof by the party adversely
affected unless within that period an administrative appeal
or judicial review, if proper, has been perfected. One
motion for reconsideration may be filed, which shall
suspend the running of the said period.
SECTION 16. Publication and Compilation of
Decisions.—
(1) Every agency shall publish and make available for
public inspection all decisions or final orders in the
adjudication of contested cases.
(2) It shall be the duty of the records officer of the agency
or his equivalent functionary to prepare a register or
compilation of those decisions or final orders for use by
the public.
SECTION 17. Licensing Procedure.—
(1) When the grant, renewal, denial or cancellation of a
license is required to be preceded by notice and hearing,
the provisions concerning contested cases shall apply
insofar as practicable.
(2) Except in cases of willful violation of pertinent laws,
rules and regulations or when public security, health, or
safety require otherwise, no license may be withdrawn,
suspended, revoked or annulled without notice and
hearing.
i. Administrative Due Process
Secs. 50-51, Book V, Administrative Code:
11

SECTION 50. Accountable Officers; Board
Requirements.—
(1) Every officer of any government agency whose duties
permit or require the possession or custody government
funds shall be accountable therefor and for safekeeping
thereof in conformity with law; and
(2) Every accountable officer shall be properly bonded in
accordance with law.
SECTION 51. Primary and Secondary
Responsibility.—
(1) The head of any agency of the Government is
immediately and primarily responsible for all government
funds and property pertaining to his agency;
(2) Persons entrusted with the possession or custody of
the funds or property under the agency head shall be
immediately responsible to him, without prejudice to the
liability of either party to the Government.
CASES:
Atienza vs. COMELEC, G.R. No. 188920 (2010): the
requirements of administrative due process do not apply
to the internal affairs of political parties.
Discussion: Although political parties play an
important role in our democratic set-up as an
intermediary between the state and its citizens, it
is still a private organization, not a state
instrument.
Ang Tibay vs. CIR, 69 Phil. 635 (1940): 7 Cardinal
Primary Rights
1. Right to a hearing: (1) right to present own case
and (2) right to submit evidence.
2. Tribunal must consider the evidence presented.
3. The Court must have some basis to support its
decision.
4. The evidence must be substantial: such relevant
evidence as a reasonable mind accept as
adequate to support a conclusion. It is more than
a mere scintilla.
5. The decision must be rendered on the evidence
presented at the hearing, or at least contained in
the record and disclosed to the parties affected.
6. The CIR or any of its judges must act on its or his
own independent consideration of the law and
facts of the controversy, and not simply accept
the views of a subordinate in arriving at a
decision.
7. The CIR should render its decision in such a
manner that the parties to the proceeding can
know the various issues involved, and the
reasons for the decisions rendered.
Air Manila, Inc. vs. Balatbat, G.R. No. L-29064 (1971):
only 4 rights; Ang Tibay doctrine subsists.
Go vs. Colegio de San Juan, G.R. No. 169391 (2012):
Go was suspended due to involvement in fraternity. Court
reinstated Ang Tibay doctrine to establish the rights of
administrative due process in student disciplinary
proceedings.
Application of the 7 cardinal primary rights
Acuzar vs. Jorolan, G.R. No. 177878 (2010): 1st right:
petitioner had more than enough opportunity to present
his side and adduce evidence in support of his defense.
- Due process in an administrative context does
not require trial-type proceedings similar to those
in courts of justice. Where opportunity to be heard
either through oral arguments or through
pleadings is accorded, there is no denial of due
process.
- It is not legally objectionable for being violative of
due process for an administrative agency to
resolve a case based solely on position papers,
affidavits or documentary evidence submitted by
the parties as affidavits of witnesses may take the
place of direct testimony.
Ganappao vs. CSC, 649 SCRA 594 (2011): 1st right
- As long as a party was given the opportunity to
defend his interests in due course, he was not
denied due process.
Nacion vs. COA, G.R. No. 204757 (2015): 1st right: she
was still accorded before the COA a reasonable
opportunity to present her defenses, through her answer
to the formal charge and eventually, motion for
reconsideration of the COA’s decision.
- COA Chairperson could initiate administrative
proceedings motu proprio, no written complaint
against Nacion from another person was
necessary.
Lumiqued vs. Exevea, G.R. No. 117565 (1997): right to
counsel is not imperative in administrative investigations
because such inquiries are conducted merely to
determine whether there are facts that merit disciplinary
measures against erring public officers and employees,
with the purpose of maintaining the dignity of government
service.
Gupilan-Aguilar vs. Ombudsman, G.R. No. 197307
(2014): 4th right: substantial evidence has been satisfied.
Not only did she fail to declare in her SALN the residential
lot located at Panicuason, Naga City, she likewise failed
to satisfactorily explain her beneficial ownership of the
Antel Seaview Towers four-bedroom condominium unit
and her use of the two BMWs registered in the name of
different corporations, which, as the records show, are
both based in Olongapo City.
Ombudsman vs. Reyes, G.R. No. 170512 (2011): 5th
right was not complied: Reyes was not properly apprised
of the evidence offered against him, which were
12
eventually made the bases of petitioner’s decision that
found him guilty of grave misconduct.
Pollution Board vs. CA, 195 SCRA 112 (1991): 1st right:
Ex parte cease and desist orders are permitted by law
and regulations in situations like that here presented
precisely because stopping the continuous discharge of
pollutive and untreated effluents into the rivers and other
inland waters of the Philippines cannot be made to wait
until protracted litigation over the ultimate correctness or
propriety of such orders has run its full course, including
multiple and sequential appeals such as those which
Solar has taken, which of course may take several years.
American Tobacco vs. Dir.of Patents, 67 SCRA 287
(1975): 6th right: Director of Patents delegated the hearing
of petitioners' cases to hearing officers.
- The rule that requires an administrative officer to
exercise his own judgment and discretion does
not preclude him from utilizing, as a matter of
practical administrative procedure, the aid of
subordinates to investigate and report to him the
facts, on the basis of which the officer makes his
decisions.
DOH vs. Camposano, supra: 6th requisite had not been
observed resulting to an invalid decision.
- Actual exercise of the disciplining authority’s
prerogative requires a capacity as the Board Chairman of the MSPB when the
prior independent consideration of the law and
the facts.
Solid Homes vs. Laserna, G.R. No. 166051 (2008): 7th
right: Petitioner allegation (Decision of the Office of the
President which merely adopted by reference the
Decision of the HLURB Board of Commissions was
without a recitation of the facts and law on which it was
based) was unmeritorious.
- The constitutional mandate that, “no decision
shall be rendered by any court without expressing
therein clearly and distinctly the facts and the law
on which it is based,” applies only to decisions
rendered in judicial proceedings and not to
decisions rendered in administrative
proceedings.
ii. Judgment
CASES:
Marcelo vs. Bungubung, G.R. No. 175201 (2008):
Respondent was absolved from liability after the original
complainant expressed his desire to withdraw his
Complaint-Affidavit. The Court considered the Affidavit of
Desistance to be an express repudiation of the material
points alleged and not a mere expression of his lack of
interest to pursue his complaints. Since the complainant
willfully and knowingly executed his Affidavit of
Desistance, there being no showing that he was made to
do so fraudulently or under duress, then it may be
admitted and considered as evidence which considerably
puts into question the probative value of the Affidavit-
Complaint he executed and now repudiates.
Santos-Concio vs. DOJ, G.R. No. 175057 (2008):
Petitioners mentioned the conduct of the criminal
investigation within 24 working days and the issuance of
subpoenas immediately following the creation of the
Investigating Panel. The Court held that speed in the
conduct of proceedings by a judicial or quasi-judicial
officer cannot per se be instantly attributed to an
injudicious performance of functions.
Discussion: The presumption of regularity
includes the public officer's official actuations in
all phases of work.
iii. Administrative Appeal and Review
Sec. 19, Book VII, Administrative Code: Appeal.—
Unless otherwise provided by law or executive order, an
appeal from a final decision of the agency may be taken
to the Department head.
CASES:
Rivera vs. CSC, 240 SCRA 43 (1995): Petitioner
asserted that he was denied due process when Hon.
Thelma P. Gaminde, who earlier participated in her
latter had taken action on LBP's motion for
reconsideration, also took part, this time as a CSC
Commissioner, in the resolution of petitioner's motion for
reconsideration with the CSC. The Court considered such
act to be a “mockery of administrative justice”.
Discussion: There could be no different view or there
would be no real review of the case. The decision of
the reviewing officer would be a biased view;
inevitably, it would be the same view since being
human, he would not admit that he was mistaken in
his first view of the case.
- Conflict of interest
Solid Homes vs. Laserna, supra:
Discussion: Vertical administrative machinery
- Example: HLURB Arbiter> HLURB Board of
Commissioners> Office of the President.
Penafrancia Shipping vs. 168 Shipping, G.R. No.
188952 (2016): Petitioners claimed that the appropriate
remedy against the adverse ruling of the MARINA Board
is a petition for review to the Honorable Court of Appeals
under Rule 43 of the Rules of Court. The Court ruled
otherwise following their ruling in Manalang-Demegillo,
that the actions of the DOTC Secretary and the Executive
Secretary, as ex officio members of the MARINA Board
were made not in their capacity as alter egos of the
President. As such, an appeal to the OP is still warranted.
13
If petitioners are still dissatisfied with the decision of the
OP, then it would be the proper time to file a petition for
review under Rule 43 with the CA.
Discussion: DOTC Secretary does not have
supervision and control over the MARINA, which
is an attached agency to the DOTC.
iv. Administrative Res Judicata
CASES:
Heirs of Derla vs. Heirs of Hipolito, G.R. No. 157717
(2011): when the administrative proceedings take on an
adversary character, the doctrine of res judicata applies.
Discussion: Administrative res judicata is only
limited to quasi-judicial proceedings in
administrative cases decided by the
administrative agency. Only if the administrative
agency decides on its quasi-judicial capacity
(when there is a controversy involving rights and
obligations of parties).
3. Fact-Finding and Investigatory
CASES:
Cariño vs. CHR, 204 SCRA 483 (1991): Commission on
Human Rights only has the power to investigate.
● To investigate is not to adjudicate or adjudge.
Discussion: Investigate: "(a)n administrative
function, the exercise of which ordinarily does not
require a hearing. 2 Am J2d Adm L Sec. 257; . . . an
inquiry, judicial or otherwise, for the discovery and
collection of facts concerning a certain matter or
matters."
- Adjudicate: “To settle in the exercise of
judicial authority. To determine finally.
▪ Synonymous with adjudge: "To
pass on judicially, to decide,
settle or decree, or to sentence
or condemn. . . . Implies a judicial
determination of a fact, and the
entry of a judgment."
Department of Health vs. Camposano, 457 SCRA 438
(2005): DOH Secretary effectively delegated the power to
investigate to the PCAGC.
● As a matter of administrative procedure, a
department secretary may utilize other officials to
investigate and report the facts from which a
decision may be based.
Agustin-Se vs. Office of the President, G.R. No.
207355 (2016): The ODESLA is merely a fact-finding and
recommendatory body to the President; and thus, it does
not have the power to settle controversies and adjudicate
cases.
● Fact-finding is not adjudication and it cannot be
likened to the judicial function of a court of justice,
or even a quasi-judicial agency or office. The
function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a
judicial function. To be considered as such, the
act of receiving evidence and arriving at factual
conclusions in a controversy must be
accompanied by the authority of applying the law
to the factual conclusions to the end that the
controversy may be decided or determined
authoritatively, finally and definitively, subject to
such appeals or modes of review as may be
provided by law.
4. Licensing
Secs. 2(10), (11), 11, 17, 18, Book VII, Administrative
Code
(10) “License” - includes the whole or any part of any
agency permit, certificate, passport, clearance, approval,
registration, charter, membership, statutory exemption or
other form of permission, or regulation of the exercise of
a right or privilege.
SECTION 2 (11) “Licensing” - includes agency process
involving the grant, renewal, denial, revocation,
suspension, annulment, withdrawal, limitation,
amendment, modification or conditioning of a license.
SECTION 11. Notice and Hearing in Contested
Cases.—
(1) In any contested case all parties shall be entitled to
notice and hearing. The notice shall be served at least five
(5) days before the date of the hearing and shall state the
date, time and place of the hearing.
(2) The parties shall be given opportunity to present
evidence and argument on all issues. If not precluded by
law, informal disposition may be made of any contested
case by stipulation, agreed settlement or default.
(3) The agency shall keep an official record of its
proceedings.
SECTION 17. Licensing Procedure.—
(1) When the grant, renewal, denial or cancellation of a
license is required to be preceded by notice and hearing,
the provisions concerning contested cases shall apply
insofar as practicable.
(2) Except in cases of willful violation of pertinent laws,
rules and regulations or when public security, health, or
safety require otherwise, no license may be withdrawn,
suspended, revoked or annulled without notice and
hearing.
SECTION 18. Non-expiration of License.—Where the
licensee has made timely and sufficient application for the
renewal of a license with reference to any activity of a
14
continuing nature, the existing license shall not expire
until the application shall have been finally determined by
the agency.
CASES:
Sañado vs. Court of Appeals, 356 SCRA 456 (2001):
The action of an administrative agency in granting or
denying, or in suspending or revoking, a license, permit,
franchise, or certificate of public convenience and
necessity is administrative or quasi-judicial. The act is not
purely administrative but quasi-judicial or adjudicatory
since it is dependent upon the ascertainment of facts by
the administrative agency, upon which a decision is to be
made and rights and liabilities determined.
5. Rate-fixing
Sec. 2(3), Book VII, Administrative Code
“Rate” - any charge to the public for a service open to all
and upon the same terms, including individual or joint
rates, tolls, classifications, or schedules thereof, as well
as commutation, mileage, kilometerage and other special
rates which shall be imposed by law or regulation to be
observed and followed by any person.
CASES:
Philcomsat vs. Alcuaz, G.R. No. 84818 (1989): In so far
as generalization is possible in view of the great variety of
administrative proceedings, it may be stated as a general
rule that notice and hearing are not essential to the validity
of administrative action where the administrative body
acts in the exercise of executive, administrative, or
legislative functions; but where a public administrative
body acts in a judicial or quasi-judicial matter, and its acts
are particular and immediate rather than general and
prospective, the person whose rights or property may be
affected by the action is entitled to notice and hearing.
● If the rate that is being imposed by the
administrative agency is solely for one party, it is
quasi-judicial. If it applies to all, it is quasi-
legislation, because there is no controversy.
6. Administrative
CASES:
Soriano vs. Laguardia, G.R. No. 164785 (2009):
Administrative agencies have powers and functions which
may be (I-R-A-Q2).
Cipriano vs. COMELEC, G.R. No. 165983 (2004):
Contrary to the submission of the COMELEC, the denial
of due course or cancellation of one’s certificate of
candidacy is not within the administrative powers of the
Commission, but rather calls for the exercise of its quasi-
judicial functions which they do not have. The duty of the
COMELEC to give due course to certificates of candidacy
filed in due form is ministerial in character. While the
Commission may look into patent defects in the
certificates, it may not go into matters not appearing on
their face. The question of eligibility or ineligibility of a
candidate is thus beyond the usual and proper
cognizance of said body.
● As an independent Constitutional Commission, it
is clothed with the three powers of government -
executive or administrative, legislative, and
quasi-judicial powers.
Discussion: The administrative powers of the
COMELEC: for example, include the power to
determine the number and location of polling places,
appoint election officials and inspectors, conduct
registration of voters, deputize law enforcement
agencies and government instrumentalities to ensure
free, orderly, honest, peaceful and credible elections;
register political parties, organization or coalitions,
accredit citizens’ arms of the Commission, prosecute
election offenses, and recommend to the President
the removal or imposition of any other disciplinary
action upon any officer or employee it has deputized
for violation or disregard of its directive, order or
decision. It also has direct control and supervision
over all personnel involved in the conduct of election.
o Administrative power is concerned with
the work of applying policies and
enforcing orders as determined by proper
governmental organs.
- Its legislative authority: power to promulgate rules
and regulations implementing the provisions of
the Omnibus Election Code or other laws which
the Commission is required to enforce and
administer.
- The Constitution has also vested it with quasi-
judicial powers: exclusive original jurisdiction
over all contests relating to the elections, returns
and qualifications of all elective regional,
provincial and city officials; and appellate
jurisdiction over all contests involving elective
municipal officials decided by trial courts of
general jurisdiction, or involving
elective barangay officials decided by trial courts
of limited jurisdiction.
D. Judicial Review of Administrative Action
Sec. 1, Art. VIII, 1987 Constitution: The judicial power
shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
Secs. 23, 25, Book VII, Administrative Code
15
SECTION 23. Finality of Decision of Appellate
Agency.—In any contested case, the decision of the
appellate agency shall become final and executory fifteen
(15) days after the receipt by the parties of a copy thereof.
SECTION 25. Judicial Review.—
(1) Agency decisions shall be subject to judicial review in
accordance with this chapter and applicable laws.
(2) Any party aggrieved or adversely affected by an
agency decision may seek judicial review.
(3) The action for judicial review may be brought against
the agency, or its officers, and all indispensable and
necessary parties as defined in the Rules of Court.
(4) Appeal from an agency decision shall be perfected by
filing with the agency within fifteen (15) days from receipt
of a copy thereof a notice of appeal, and with the
reviewing court a petition for review of the order. Copies
of the petition shall be served upon the agency and all
parties of record. The petition shall contain a concise
statement of the issues involved and the grounds relied
upon for the review, and shall be accompanied with a true
copy of the order appealed from, together with copies of
such material portions of the records as are referred to
therein and other supporting papers. The petition shall be
under oath and shall how, by stating the specific material
dates, that it was filed within the period fixed in this
chapter.
(5) The petition for review shall be perfected within fifteen
(15) days from receipt of the final administrative decision.
One (1) motion for reconsideration may be allowed. If the
motion is denied, the movant shall perfect his appeal
during the remaining period for appeal reckoned from
receipt of the resolution of denial. If the decision is
reversed on reconsideration, the appellant shall have
fifteen (15) days from receipt of the resolution to perfect
his appeal.
(6) The review proceeding shall be filed in the court
specified by statute or, in the absence thereof, in any
court of competent jurisdiction in accordance with the
provisions on venue of the Rules of Court.
(7) Review shall be made on the basis of the record taken
as a whole. The findings of fact of the agency when
supported by substantial evidence shall be final except
when specifically provided otherwise by law.
RULE 43 ROC: Appeals From the Court of Tax
Appeals and Quasi-Judicial Agencies to the Court of
Appeals
Section 1. Scope. — This Rule shall apply to appeals
from judgments or final orders of the Court of Tax Appeals
and from awards, judgments, final orders or resolutions of
or authorized by any quasi-judicial agency in the exercise
of its quasi-judicial functions. Among these agencies are
the Civil Service Commission, Central Board of
Assessment Appeals, Securities and Exchange
Commission, Office of the President, Land Registration
Authority, Social Security Commission, Civil Aeronautics
Board, Bureau of Patents, Trademarks and Technology
Transfer, National Electrification Administration, Energy
Regulatory Board, National Telecommunications
Commission, Department of Agrarian Reform under
Republic Act No. 6657, Government Service Insurance
System, Employees Compensation Commission,
Agricultural Invention Board, Insurance Commission,
Philippine Atomic Energy Commission, Board of
Investments, Construction Industry Arbitration
Commission, and voluntary arbitrators authorized by law.
(n)
CASES:
Reyna vs. COA, G.R. No. 157219 (2011): It is well settled
that findings of fact of quasi-judicial agencies, such as the
COA, are generally accorded respect and even finality by
this Court, if supported by substantial evidence, in
recognition of their expertise on the specific matters under
their jurisdiction.
Remolona vs. CSC, G.R. No. 137473 (2001): The rule,
therefore, is that courts of justice will not generally
interfere with purely administrative matters which are
addressed to the sound discretion of government
agencies unless there is a clear showing that the latter
acted arbitrarily or with grave abuse of discretion or when
they have acted in a capricious and whimsical manner
such that their action may amount to an excess of
jurisdiction.
Ombudsman vs. Reyes, G.R. No. 170512 (2011): There
is a grave abuse of discretion in an administrative
proceeding when the decision is not rendered on the
evidence presented at the hearing, or at least contained
in the record and disclosed to the parties affected.
Palao vs. Florentino III International, G.R. No. 186967
(2017): There is no grave abuse of discretion in an
administrative proceeding even if there is defect in the
forms since administrative bodies are not bound by the
technical niceties of law and procedure and the rules
obtained in courts of law. In administrative proceedings,
technical rules of procedure and evidence are not strictly
applied and administrative due process cannot be fully
equated with due process in its strict judicial sense.
1. Doctrine of Primary Jurisdiction
(Preliminary/Prior Resort)
Discussion: The doctrine of primary jurisdiction applies
only where the administrative agency exercises its judicial
or adjudicatory function. Thus, in cases involving
specialized disputes, the practice has been to refer the
same to an administrative agency of special competence
pursuant to the doctrine of primary jurisdiction. The
objective of the primary jurisdiction is to guide a court in
determining whether it should refrain from exercising its
jurisdiction until after an administrative agency has
determined some question or some aspect of some
question arising in the proceeding before the court.
CASES:
Smart Communications Inc. v. NTC, G.R. No. 151908
(2003): The doctrine of primary jurisdiction does not mean
16
that the court is divested with jurisdiction. The word
primary doesn’t mean that it is superior. Both the courts
and administrative agencies have jurisdiction over the
issue. It only means that one must need to go to the
administrative agency first before you go to the court.
Discussion: Where does the doctrine of
primary jurisdiction apply? While the lower
court has jurisdiction to consider the
constitutionality of a provision, the quasi-judicial
bodies has jurisdiction on matters they have
expertise and familiarity.
Republic v. Lacap G.R.No. 158253 (2007): Lacap was
awarded the contract of concreting Sitio 4 Bahay Pare.
When the project was completed, Lacap sought for
payment but DPWH withheld the payment on the ground
that the contractor’s license of Lacap has already expired.
Thus, respondent filed before the RTC. RTC rendered a
decision but Republic argued that Respondent failed to
exhaust administrative remedies. The court ruled that
exceptions (c) and (e) are applicable to this case, hence,
the petition is denied.
GR: Before a party may seek the intervention of the Court,
he should first avail of all the means afforded to him by
administrative remedies. /Courts cannot intervene with
administrative issues.
Xpns:
a. Where there is estoppel on the part of the party
invoking the doctrine;
b. Where the challenged administrative act is
patently illegal, amounting to lack of jurisdiction;
c. Where there is unreasonable delay or official
inaction that will irretrievably prejudice the
complainant;
d. Where the amount involved is relatively small so
as to make the rule impractical and oppressive;
e. Where the question involved is purely legal and
will ultimately have to be decided by the courts of
justice;
f. Where intervention is urgent;
g. When its application may cause great and
irreparable damage;
h. Where the controverted acts violate due process;
i. When the issue of non-exhaustion of
administrative remedies has been rendered
moot;
j. When there is no other plain, speedy and
adequate remedy;
k. When strong public interest is involved; and
l. In quo warranto proceedings
Pimentel vs. Senate Committee, G.R. No. 187714
(2011): This case involves a privilege speech by Senator
Lacson which called the attention to the congressional
insertion in the General Appropriations Act. Sen. Madrigal
introduced PS Resolution 706 directing the Committee on
Ethics to investigate the conduct of Senator Villar. Villar
then stated that he would answer the accusation on the
floor and not the ethics Committee. Whether the doctrine
of primary jurisdiction applies. No. The issues presented
in this case do not require the expertise, specialized skills
and knowledge of the Senate for their resolution. The
issues in this case are purely legal questions which are
within the competence and respondent for their
resolution. The senate is not an administrative agency
and it does not have quasi-judicial powers. Their powers
are limited to law-making in the exercise of their legislative
functions.
Philippine Telegraph vs. Smart, Inc., G.R. No. 189026
(2016): This Involves a case regarding Smart increasing
its access charges and interred contract with PT&T. PT&T
filed a letter-complaint with the NTC. Whether the NTC
has primary jurisdiction over the case. Section 18 of RA
7925 authorizes the NTC to determine the equity,
reciprocity and fairness of the access charges stipulated
in Smart and PT&T’s agreement. This does not, however,
completely deprive the RTC of its jurisdiction over the
complaint. The agreement has other stipulations which do
not require the NTC’s expertise. But the RTC cannot
proceed with the civil case until the NTC has finally
determined if the access charges are fair and reasonable.
2. Doctrine of Exhaustion of Administrative
Remedies
Discussion: The doctrine of exhaustion of
administrative remedies requires that resort must first
be made with the appropriate administrative
authorities in the resolution of a controversy falling
under their jurisdiction before they resort to courts.
Doctrine of primary jurisdiction v. Doctrine of
exhaustion of administrative remedies:
The doctrine of primary jurisdiction relates to
questions of fact requiring cases involving the
application of administrative knowledge and
expertise. It pertains to the power of the admin
agency to rule or hear a certain case falling under
their jurisdiction. It works on the assumption that both
the courts and the agencies have jurisdiction.
The doctrine of exhaustion of administrative
remedies means that before you could jump to the
courts you have to go up the vertical machinery within
the administrative agency.
It is a doctrine of primary jurisdiction first, then you
apply the doctrine of exhaustion second.
Once the admin agency has jurisdiction over the
issue, you go up and finish that machinery within the
admin agency before you go to the courts. (e.g., from
the legal department up to the office of the president)
CASES:
Obiasca vs. Basalotte G.R. No. 176707 (2010): The
exceptions to the doctrine of exhaustion of administrative
remedies are:
17
 (1) when there is a violation of due process;
(2) when the issue involved is purely a legal
question;
(3) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction;
(4) when there is estoppel on the part of the
administrative agency concerned;
(5) when there is irreparable injury;
(6) when the respondent is a department secretary
whose acts as an alter ego of the President bears
the implied and assumed approval of the latter;
(7) when to require exhaustion of administrative
remedies would be unreasonable;
(8) when it would amount to a nullification of a claim;
(9) when the subject matter is a private land in land
case proceedings;
(10) when the rule does not provide a plain, speedy
and adequate remedy, and
(11) when there are circumstances indicating the
urgency of judicial intervention, and
unreasonable delay would greatly prejudice the
complainant;
(12) where no administrative review is provided by
law;
(13) where the rule of qualified political agency
applies and
(14) where the issue of non-exhaustion of
administrative remedies has been rendered
moot.
Republic vs. OG Holdings G.R. No. 189290 (2017): The
doctrine of exhaustion of administrative remedies
requires that resort must first be made with the
appropriate administrative authorities in the resolution of
a controversy falling under their jurisdiction before the
same may be elevated to the courts for review. If a
remedy within the administrative machinery is still
available, with a procedure pursuant to law for an
administrative officer to decide a controversy, a party
should first exhaust such remedy before going to court.
Environmental Management Bureau under the DENR:
OG Holdings failed to exhaust all the available
administrative remedies because pursuant to the
enabling law, AO 30: first the plaintiff should go to the
EMB Director, then the office of the DENR Secretary, up
to the Office of the President. OG Holdings failed to file an
appeal to such offices before going to the court.
AALA, et.al vs. Uy G.R. No. 202781 (2017): The
petitioners were alarmed by the impending ordinance in
Tagum City regarding the market values and assessment
of properties. They filed to the SC and original action for
certiorari, prohibition, and mandamus.
The Court held that the petition before the SC is violative
of the doctrine of exhaustion of administrative remedies
because it does not fall under the exceptions; the issue in
this case is not purely legal because there are factual
issues that need to be addressed.
Regino vs Pangasinan G.R. No. 156109 (2004):
Regino, a student of Pangasinan Colleges of Science and
Technology. The school required them to pay for a fund-
raising project since Regino came from a poor family, she
refused to pay for her tickets, so her teachers did not allow
her to take her examinations. Petitioner filed a complaint
for damages with the RTC against PCST.
The Court held that the doctrine of exhaustion of
administrative remedies has no bearing in this case
because what is involved is a civil case on damages. and
clearly Pangasinan Colleges does not have jurisdiction
over that. It is the courts that have jurisdiction.
Maglalang vs. PAGCOR G.R. 190566 (2013): Maglalang
was a teller at the Casino Filipino-Angeles Branch which
was operated by PAGCOR who committed an error in the
counting of money of a customer so a tension ensued
between the two Maglalang was found guilty of
discourtesy towards a customer and was suspended for
30 days. Maglalang filed a petition for certiorari at the CA.
PAGCOR argued that he failed to exhaust all the available
administrative remedies before going to the court.
The Court ruled that it falls under the exception #12 which
states that the doctrine will not apply “where no
administrative review is provided by law”. What is
provided only by law or the civil service decree is the
penalty of suspension for more than 30 days. And
suspension for not more than 30 days will be considered
as final and executory. Since Maglalang was suspended
for not more than 30 days, he may directly go to the
courts.
Mateo vs. DAR G.R. No. 186339 (2017): The Mateos
were the registered owners of coconut and rice lands in
Sorsogon and a portion of such lands were brought under
the coverage of the CARP of the government and for this
reason, the DAR entered the premises. LBP valued
Mateo's land at 52k per ha. However the Mateos rejected
the valuation and filed a complaint in the RTC. The RTC
rendered a decision in favor of the Mateos. The LBP and
DAR both filed an appeal stating that the complaint was
premature as the DARAB has not yet made an
administrative valuation of the property. The CA
dismissed the complaint stating that the DARAB has the
quasi-judicial authority to make a preliminary
determination of just compensation of land acquired by
the CARP.
The Court ruled that it falls under the exceptions. If
applied, it will result in unreasonable delay or official
inaction of the DAR and LBP. The DAR entered the
property sometime in 1994 but deposited cash and bonds
as payment only in 1996 and 1997. The LBP and the DAR
were indisputably aware that the Mateos rejected the
price offered as just compensation for the subject
property. Still, at the time the Mateos filed their suit before
the SAC, no summary administrative proceeding was yet
initiated by the DAR to make further valuation. The SAC
even had to issue no less than three orders dated
November 12, 1997, January 7, 1998 and March 18, 1998
for the DAR to conduct the necessary proceedings. DAR’s
delay and inaction had unjustly prejudiced the Mateos and
18
precluded them from filing a complaint before the SAC
shall result in an injustice, which the law never intended.
Mangune vs. Ermita, G.R. No. 182604 (2016): A law
was enacted establishing an administration and
supervision of the DOH to the Taguig Paterson district or
the TPDH. Thereafter, President Aroyo issued EO 567
devolving the administration and supervision of the said
hospital from DOH to city of Taguig. Petitioner filed a case
before the RTC which was dismissed. The RTC ruled that
EO 567 is well within the President’s power of supervision
over the executive department and petitioners should
have exercised the doctrine of exhaustion of
administrative remedies by going to the CSC first since
the case stems from their reassignment to TPDH.
The Doctrine admits exceptions. The constitutionality of
EO 567 is a purely legal question which is one of the
exceptions of the doctrine of exhaustion of administrative
remedies. As the issue in this case involves the legality
of E.O. No. 567, a purely legal question, the filing of the
petition without exhausting administrative remedies is
justified.
SEC vs. CJH, G.R. No. 210316 (2016): The ruled Court
in this case that the respondents are not left without
recourse in the administrative level. Because the SEC
regulations code provides remedies such as the person
aggrieved may file a formal request for the lifting of the
cease and desist order which was issued in this case or
file a formal request or motion for the lifting with the office
of the general council. Respondent should have filed the
motion to lift the assailed cease and desist order.
KMU vs. Aquino G.R. No. 210500 (2019): The Social
Security Commission issued a circular providing for the
revised schedule of contribution. The petitioners KMU
filed a petition questioning the validity of such issuance.
The issue in this case is whether or not the petitioner
exhausted all the administrative remedies. The Court
ruled in negative. The reason for the principle rest upon
the presumption of the administrative body if given the
chance to correct its mistake or error or amend its
decision.
Sec. 5 of the Social Security Act grants the authority to
the Commission to settle disputes arising under RA 8282,
and appeals from the decision of the same shall be
subject to judicial review ONLY if the party aggrieved
exhausted his remedies before the Commission.
3. Doctrine of Finality of Administrative Action
(Doctrine of Immutability of Judgments as
Applied to Administrative Cases
CASES:
CSC vs. Moralde, G.R. No. 211077 (2018): Doctrine of
Finality of Administrative Action is also the Doctrine of
Immutability of judgment, but it is applied in administrative
settings.
The Doctrine if defined in several jurisprudence.
Social Security System v. Isip: articulated the basic
parameters of and the rationale for adhering to the
doctrine of immutability of a final judgment:
A judgment becomes "final and executory" by operation
of law. Finality becomes a fact when the reglementary
period to appeal lapses and no appeal is perfected within
such period. As a consequence, no court (not even this
Court) can exercise appellate jurisdiction to review a case
or modify a decision that has bec[o]me final.
When a final judgment is executory, it becomes
immutable and unalterable. It may no longer be modified
in any respect either by the court which rendered it or
even by this Court. The doctrine is founded on
considerations of public policy and sound practice that, at
the risk of occasional errors, judgments must become
final at some definite point in time.
The doctrine of immutability and inalterability of a final
judgment has a two-fold purpose: (1) to avoid delay in the
administration of justice and thus, procedurally, to make
orderly the discharge of judicial business and (2) to put an
end to judicial controversies, at the risk of occasional
errors, which is precisely why courts exist. Controversies
cannot drag on indefinitely. The rights and obligations of
every litigant must not hang in suspense for an indefinite
period of time.
As is clear from Peña, the doctrine of immutability of
judgments applies as much to decisions of agencies
exercising quasi-judicial powers as they do to judicial
decisions.78 Jurisprudence is categorical: "the principle of
conclusiveness of prior adjudications is not confined in its
operation to the judgments of what are ordinarily known
as courts, but extends to all bodies upon which judicial
powers had been conferred."
E. Judicial Enforcement of Administrative Action
Discussion: What do you need to get or is needed in
order to implement the decision of the Administrative
Agency? Writ of Execution.
CASES:
GSIS vs. CSC, G.R. No. 96938(1991): The grant to a
tribunal or agency of adjudicatory power, or the authority
to hear and adjudge cases, should normally and logically
be deemed to include the grant of authority to enforce or
execute the judgments it thus renders through a writ of
execution, unless the law otherwise provides.
MMDA vs. Concerned Residents, supra, and the
subsequent Resolution G.R. No. 171947-48 (2011):
Under the doctrine of continuing mandamus, the Court
may, under extraordinary circumstances, issue directives
with the end in view of ensuring that its decision would not
be set to naught by administrative inaction or indifference.
19
 II. LAW OF PUBLIC OFFICERS
A. The Public Office
1. Definition, Purpose, and Nature
Sec. 1, Art. XI, 1987 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.
Discussion: Section 1, Article XI of the 1987 Constitution
is an umbrella provision, containing all the values that we
need to observe or public officers need to observe.
Sec. 2 (9), Introductory Provisions, Administrative
Code: Office refers, within the framework of
governmental organization, to any major functional unit of
a department or bureau including regional offices. It may
also refer to any position held or occupied by individual
persons, whose functions are defined by law or
regulation.
CASES:
Fernandez vs. Sto.Tomas, G.R. No. 116418 (1995):
Public office is frequently used to refer to the right,
authority and duty, created and conferred by law, by
which, for a given period either fixed by law or enduring at
the pleasure of the creating power, an individual is
invested with some portion of the sovereign function of
government, to be exercised by that individual for the
benefit of the public.
Laurel vs. Desierto, 381 SCRA 48 (2002): The
characteristics of public office include the delegation of
sovereign functions, its creation by law and not by
contract, an oath, salary, continuance of the position,
scope of duties, and the designation of the position of
public office.
Mechem describes the delegation to the individual of
some of the sovereign functions of government as the
most important characteristic in determining whether a
position is a public office or not.
The most important characteristic which distinguishes an
office from an employment or contract is that the creation
and conferring of an office involves a delegation to the
individual of some of the sovereign functions of
government, to be exercised by him for the benefit of the
public;- that some portion of the sovereignty of the
country, either legislative, executive or judicial, attaches,
for the time being, to be exercised for the public benefit.
Unless the powers conferred are of this nature, the
individual is not a public officer.
Re: Request of CJ Panganiban, A.M. No. 10-9-15-SC
(2013): Consultancy is a public office .Under the old
Administrative Code, a government “employee” includes
any person in the service of the Government or any
branch thereof of whatever grade or class. A government
“officer” on the other hand, refers to officials whose duties
involve the exercise of discretion in the performance of
the government, whether such duties are precisely
defined or not. Clearly, the law, then and now, did not
require a specific job description and job specification.
Thus, the absence of a specific position in a governmental
structure is not a hindrance from the Court to give weight
to CJ Panganiban’s government service as legal counsel
and consultant.
Dissent by Justice Brion - A legal consultant is one who
has adequate external professional expertise in the law
that no one in the agency could provide or render, and
whose services must be procured. A procured service is
not government service, as it service hired after the
conduct of the procurement process it is not part of the
internal and regular services of the procuring
governmental entity.
Posadas vs Sandiganbayan G.R. No. 168951 & 169500
(2013): Consultancy is a private practice of profession; it
is not a public office.
In contrast to Re: Request of CJ Panganiban, what
Justice Panganiban did as a lawyer when he was still in
the DepEd, was a sovereign function. In Posadas vs
Sandiganbayan, it is not a sovereign function.
Cornejo vs. Gabriel G.R. No, 16887 (1920): A public
office is not property within the sense of the Constitution
such as Art III Section 1.
Mathay vs. CA G.R. No. 115788 (1998): The right to hold
public office is not a natural right. The right exists only by
virtue of a law expressly or impliedly creating and
conferring it. A void appointment cannot give rise to
security to tenure on part of holder of appointment.
Morfe vs. Mutuc, G.R. No. L-20387 (1968): The issue
here is a clarification of the ruling in the case of Cornejo
that public office is not a property within the constitutional
sense of property but public officers have a right to be
protected when they are being deprived of their right to
exercise public office.
When a public officer for instance is dismissed without
due process, that is deprivation of due process and of
property in that sense. Public officers have the right to
defend their right to hold that public office.
It is not property, but public officers have the right to
exercise the powers of public office. Therefore,
deprivation of their right to hold of public office may be
subject to a review by the courts.
National Land Titles and Deeds vs. CSC, G.R. No.
84301 (1993): There is no such thing as vested interest
or an estate in an office, or an absolute right to hold it.
20
Except constitutional offices which provide for special
immunity as to regards salary and tenure, no one can be
said to have any vested right in an office or its salary
In this case there was a change of qualifications. A non-
lawyer cannot hold a position. The complainant argued
that he was already appointed to the position. The Court
said that there’s no such thing as a vested right to the
public office. Your right to stay and your right to hold an
office is only vested by law and therefore may be altered
by law.
2. Creation
CASES:
Secretary of DOTC vs. Mabalot, G.R. No. 138200
(2002): DOTC issued an order establishing DOTC CAR
as the regional office of LTFB in CAR. This was being
assailed because it was alleged to be undue delegation
of power since DOTC allegedly didn’t have the powers to
create offices such as the ones in the order. The issue is
whether the orders are unconstitutional for establishing
DOTC CAR as an LTFRB regional office. The Court ruled
that the DOTC secretary, as alter ego of the President, is
authorized by law to create and establish LTFRB-CAR
regional office.
Discussion: Creation by 3 modes: By constitution, By
law, or By authority of Law.
B. The Public Officer
Art. 203, Revised Penal Code (RPC). Who are public
officers – For the purpose of applying the provisions of
this and the preceding titles of this book, any person who,
by direct provision of the law, popular election or
appointment by competent authority, shall take part in
the performance of public functions in the Government of
the Philippine Islands, of shall perform in said
Government or in any of its branches public duties as an
employee, agent or subordinate official, of any rank or
class, shall be deemed to be a public officer.
Discussion: This definition tells us that there are 2
ways to occupy a public office. Through election, and
appointment. The topic under law of public officers is
by appointment.
Sec. 2 (b), RA 3019, Anti-Graft and Corrupt Practices
Act – "Public officer" includes elective and appointive
officials and employees, permanent or temporary,
whether in the classified or unclassified or exempt service
receiving compensation, even nominal, from the
government as defined in the preceding subparagraph.
Discussion: This definition reiterates the two ways
by which one could occupy a public office; by election
and by appointment. It also tells us about the lifetime
of the office, the classification, and whether or not
their compensation matters.
Sec. 2 (14), Introductory Provisions, Administrative
Code – “Officer" as distinguished from "clerk" or
"employee", refers to a person whose duties, not being of
a clerical or manual nature, involves the exercise of
discretion in the performance of the functions of the
government. When used with reference to a person
having authority to do a particular act or perform a
particular function in the exercise of governmental power,
"officer" includes any government employee, agent or
body having authority to do the act or exercise that
function.
Discussion: In the general sense, an officer is one in
government. In limited sense, it is one who exercises
discretion, compared to an employee who does not.
An employee in the general sense is someone
employed by the government. But not all public
officers are employed. “A government employee is a
public officer, but not all public officers are
government employees.”
Sec. 2 (15), Introductory Provisions, Administrative
Code – "Employee", when used with reference to a
person in the public service, includes any person in the
service of the government or any of its agencies,
divisions, subdivisions or instrumentalities.
Chapter I, Art. 2 (a), UN Convention Against
Corruption “Public official” shall mean:
(i) any person holding a legislative, executive,
administrative or judicial office of a State Party, whether
appointed or elected, whether permanent or temporary,
whether paid or unpaid, irrespective of that person’s
seniority;
(ii) any other person who performs a public function,
including for a public agency or public enterprise, or
provides a public service, as defined in the domestic law
of the State Party and as applied in the pertinent area of
law of that State Party;
(iii) any other person defined as a “public official” in the
domestic law of a State Party. However, for the purpose
of some specific measures contained in chapter II of this
Convention, “public official” may mean any person who
performs a public function or provides a public service as
defined in the domestic law of the State Party and as
applied in the pertinent area of law of that State Party;
CASES:
Laurel v. Desierto, 381 SCRA 48 (2002): Petitioner
allegedly did not receive any compensation during his
tenure is of little consequence. A salary is a usual but not
a necessary criterion for determining the nature of the
position. It is not conclusive. The salary is a mere
incident and forms no part of the office. Where a salary
or fees is annexed, the office is provided for it is a naked
or honorary office, and is supposed to be accepted merely
for the public good. Hence, the office of petitioner as NCC
Chair may be characterized as an honorary office, as
21
opposed to a lucrative office or an office of profit, i.e., one
to which salary, compensation or fees are attached. But it
is a public office, nonetheless.
Discussion: Petitioner’s office is under the Executive
branch
C. Eligibilities, Qualifications and Disqualifications
of Public Officers
1. Eligibilities and Qualifications
Secs. 21 (7), Book V, Administrative Code.
Recruitment and Selection of Employees. – Qualification
in an appropriate examination shall be required for
appointment to positions in the first and second levels
in the career service in accordance with the Civil Service
rules, except as otherwise provided in this Title: Provided,
That whenever there is a civil service eligible actually
available for appointment, no person who is not such an
eligible shall be appointed even in a temporary capacity
to any vacant position in the career service in the
government or in any government-owned or controlled
corporation with original charter, except when the
immediate filling of the vacancy is urgently required in the
public interest, or when the vacancy is not permanent, in
which cases temporary appointments of non-eligibles
may be made in the absence of eligibles actually and
immediately available.
Discussion: First and second levels in the career
service refers to the professional and sub-
professional levels, respectively.
Secs. 22(1), Book V, Administrative Code. Qualification
Standards. - A qualification standard expresses the
minimum requirements for a class of positions in terms of
education, training and experience, civil service eligibility,
physical fitness, and other qualities required for
successful performance. The degree of qualifications of
an officer or employee shall be determined by the
appointing authority on the basis of the qualification
standard for the particular position.
Sec. 5(3), (5), RA 9225, "Citizenship Retention and Re-
acquisition Act. 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:
(3) Those appointed to any public office shall subscribe
and swear to an oath of allegiance to the Republic of the
Philippines and its duly constituted authorities prior to
their assumption of office: Provided, That they renounce
their oath of allegiance to the country where they took that
oath;
(5) That right to vote or be elected or appointed to any
public office in the Philippines cannot be exercised by, or
extended to, those who:
(a) are candidates for or are occupying any public
office in the country of which they are naturalized citizens;
and/or
(b) are in active service as commissioned or non-
commissioned officers in the armed forces of the country
in which they are naturalized citizens.
Discussion: A dual citizen is allowed to hold a public
office, but not a person who holds dual allegiance.
These provisions will only apply to those who lost their
citizenships.
CASES:
Gaspar v. CA, 190 SCRA 774 (1990): The determination
of who among several candidates for a vacant position
has the best qualifications is vested in the sound
discretion of the Department Head or appointing authority
and not in the Civil Service Commission. Every particular
job in an office calls for both formal and informal
qualifications. Formal qualifications such as age,
number of academic units in a certain course, seminars
attended, etc., may be valuable but so are such
intangibles as resourcefulness, team spirit, courtesy,
initiative, loyalty, ambition, prospects for the future, and
best interests of the service. Given the demands of a
certain job, who can do it best should be left to the Head
of the office concerned provided the legal requirements
for the office are satisfied. The Civil Service Commission
cannot substitute its judgment for that of the Head of
Office in this regard.
Discussion: Informal qualifications are the values
that a public officer may observe as to recruitment
and hiring of his own officers. What is required in
public officers, is simply to meet the minimum
qualifications set by law.
Aguila v. Genato, G.R. No. L-55151 (1981):
Respondent’s argument that PD 269 does not prohibit
Board members of a cooperative from continuing in
their position prior to their election, and that pursuant
to PD 269 he is entitled, as Director, “to hold office for the
term for which he is elected and until his successor is
elected and qualified,” is untenable. Eligibility to an office
should be construed as of a continuing nature and must
exist at the commencement of the term and during
occupancy of the office. The fact that private respondent
may have been qualified at the time he assumed the
Directorship is not sufficient to entitle him to continue
holding office, if during the continuance of his incumbency
he ceases to be qualified. Private respondent was
qualified to become a director of MOELCI II at the time of
the commencement of his term, but his election as
member of the Sangguniang Panglunsod of Ozamiz City,
and his subsequent assumption of office, disqualified him
to continue as such.
22
 Discussion: What you have when you qualified for a
public office, must also be there until the end your
holding of public office; retirement.
Difference between eligibility and qualifications.
Eligibility could be qualifications, but qualifications are
not necessarily eligibilities. In the strict sense,
eligibility refers to the qualifications conferred by law
(awarded by law), not provided law. Such as the Civil
Service eligibilities. Qualifications refers to eligibility,
or formal qualifications, informal qualifications, and
other requirements set by law, such as work
experience.
2. Disqualifications
Discussion: Disqualifications refer to the
disqualifications for you to be in the public office, not
being disqualified when you are already there. These
are prohibitions on the part of an appointing power.
a. General Disqualifications
Secs. 6, 7, Art. IX-B
Section 6. No candidate who has lost in any election
shall, within one year after such election, be appointed to
any office in the Government or any Government-owned
or controlled corporations or in any of their subsidiaries.
Section 7. No elective official shall be eligible for
appointment or designation in any capacity to any public
office or position during his tenure.
Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold
any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
Government-owned or controlled corporations or their
subsidiaries.
Example: The CHED chair presides over the Board
of Regents of State Universities and Colleges,
because it is required by law.
General Rule: An appointive public officer cannot
hold any other position in the government
Exception: (1) Appointed/Allowed by law
(2) When that position is compatible with
the other position
Sec. 54, Book V, Administrative Code
Section 54. Limitation on Appointment. -
(1) No elective official shall be eligible for appointment or
designation in any capacity to any public office or position
during his tenure.
(2) No candidate who has lost in any election shall, within
one year after election, be appointed to any office in the
Government or any government-owned or controlled
corporations or in any of its subsidiaries.
(3) Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold
any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.
Sec. 94 (b), LGC
Section 94. Appointment of Elective and Appointive Local
Officials; Candidates Who Lost in an Election. - (a) No
elective or appointive local official shall be eligible for
appointment or designation in any capacity to any public
office or position during his tenure.
Unless otherwise allowed by law or by the primary
functions of his position, no elective or appointive local
official shall hold any other office or employment in the
government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled
corporations or their subsidiaries.
Secs. 59, Book V, Administrative Code
Section 59. Nepotism. -
(1) All appointments in the national, provincial, city and
municipal governments or in any branch or instrumentality
thereof, including government-owned or controlled
corporations, made in favor of a relative of the appointing
or recommending authority, or of the chief of the bureau
or office, or of the persons exercising immediate
supervision over him, are hereby prohibited.
As used in this Section, the word "relative" and members
of the family referred to are those related within the third
degree either or consanguinity or of affinity.
(2) The following are exempted from the operation of the
rules on nepotism:
(a) persons employed in a confidential capacity,
(b) teachers,
(c) physicians, and
(d) members of the Armed Forces of the Philippines:
Provided, however, That in each particular instance full
report of such appointment shall be made to the
Commission.
The restriction mentioned in subsection (1) shall not be
applicable to the case of a member of any family who,
after his or her appointment to any position in an office or
bureau, contracts marriage with someone in the same
office or bureau, in which event the employment or
retention therein of both husband and wife may be
allowed.
(3) In order to give immediate effect to these provisions,
cases of previous appointments which are in
23
contravention hereof shall be corrected by transfer, and
pending such transfer, no promotion or salary increase
shall be allowed in favor of the relative or relatives who
are appointed in violation of these provisions.
Sec. 79, LGC
Section 79. Limitation to Appointments. - No person shall
be appointed in the career service of the local government
if he is related within the fourth civil degree of
consanguinity or affinity to the appointing or
recommending authority.
Discussion: The appointment is nepotic, and is
therefore disqualification on one who aspires to be a
public officer, and also prohibition on the part of the
appointing authority. The exemption is due to the fact
that their functions are essential.
CASES:
Flores v. Drilon, G.R. No. 104732 (1993): In the case
before us, the subject proviso directs the President to
appoint an elective official, i.e., the Mayor of Olongapo
City, to other government posts (as Chairman of the
Board and Chief Executive Officer of SBMA). Since this is
precisely what the constitutional proscription seeks to
prevent, it needs no stretching of the imagination to
conclude that the proviso contravenes Sec. 7, first par.,
Art. IX-B, of the Constitution. Here, the fact that the
expertise of an elective official may be most beneficial to
the higher interest of the body politic is of no moment. It
is argued that Sec. 94 of the Local Government Code
(LGC) permits the appointment of a local elective official
to another post if so allowed by law or by the primary
functions of his office. But, the contention is fallacious.
Section 94 of the LGC is not determinative of the
constitutionality of Sec. 13, par. (d), of RA 7227, for no
legislative act can prevail over the fundamental law of the
land. Moreover, since the constitutionality of Sec. 94 of
LGC is not the issue here nor is that section sought to be
declared unconstitutional, we need not rule on its validity.
Neither can we invoke a practice otherwise
unconstitutional as authority for its validity.
Public Interest Center v. Elma, 494 SCRA 53 (2006):
The general rule contained in Article IX-B of the 1987
Constitution permits an appointive official to hold more
than one office only if “allowed by law or by the primary
functions of his position.” In the case of Quimson v.
Ozaeta, this Court ruled that, “[t]here is no legal objection
to a government official occupying two government offices
and performing the functions of both as long as there is
no incompatibility.” The crucial test in determining
whether incompatibility exists between two offices is
whether one office is subordinate to the other, in the
sense that one office has the right to interfere with the
other. [I]ncompatibility between two offices, is an
inconsistency in the functions of the two; x x x
Where one office is not subordinate to the other, nor the
relations of the one to the other such as are inconsistent
and repugnant, there is not that incompatibility from which
the law declares that the acceptance of the one is the
vacation of the other. The force of the word, in its
application to this matter is, that from the nature and
relations to each other, of the two places, they ought not
to be held by the same person, from the contrariety and
antagonism which would result in the attempt by one
person to faithfully and impartially discharge the duties of
one, toward the incumbent of the other. x x x The offices
must subordinate, one [over] the other, and they must, per
se, have the right to interfere, one with the other, before
they are incompatible at common law.
Liban v. Gordon, G. R. No. 175352 (2011): Although it
is neither a subdivision, agency, or instrumentality of the
government, nor a government-owned or controlled
corporation or a subsidiary thereof, so much so that
respondent, was correctly allowed to hold his position as
Chairman thereof concurrently while he served as a
Senator, such a conclusion does not ipso facto imply that
the PNRC is a “private corporation” within the
contemplation of the provision of the Constitution, that
must be organized under the Corporation Code. As
correctly mentioned by Justice Roberto A. Abad, the sui
generis character of PNRC requires us to approach
controversies involving the PNRC on a case-to-case
basis.
b. Specific Disqualifications
Sec. 13, Art. VI; Sec. 13, Art. VII; Sec. 12, Art. VIII; Sec.
2, Art. IX-A; Sec. 1, Art. IX-B; Sec. 1, Art. IX-C; Sec. 1,
Art. IX-D; Sec. 8, 2nd pa., Art. XI
Section 13. No Senator or Member of the House of
Representatives may hold any other office or employment
in the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries, during his
term without forfeiting his seat. Neither shall he be
appointed to any office which may have been created or
the emoluments thereof increased during the term for
which he was elected.
Section 13. The President, Vice-President, the Members
of the Cabinet, and their deputies or assistants shall not,
unless otherwise provided in this Constitution, hold any
other office or employment during their tenure. They shall
not, during said tenure, directly or indirectly, practice any
other profession, participate in any business, or be
financially interested in any contract with, or in any
franchise, or special privilege granted by the Government
or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
Section 12. The Members of the Supreme Court and of
other courts established by law shall not be designated to
any agency performing quasi-judicial or administrative
functions.
24
Section 2. No member of a Constitutional Commission
shall, during his tenure, hold any other office or
employment. Neither shall he engage in the practice of
any profession or in the active management or control of
any business which, in any way, may be affected by the
functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in
any franchise or privilege granted by the Government, any
of its subdivisions, agencies, or instrumentalities,
including government-owned or controlled corporations or
their subsidiaries.
Section 1. (1) The civil service shall be administered by
the Civil Service Commission composed of a Chairman
and two Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, with proven
capacity for public administration, and must not have
been candidates for any elective position in the elections
immediately preceding their appointment.
(2) The Chairman and the Commissioners shall be
appointed by the President with the consent of the
Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, a
Commissioner for five years, and another Commissioner
for three years, without reappointment. Appointment to
any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed
or designated in a temporary or acting capacity.
Section 1. (1) There shall be a Commission on Elections
composed of a Chairman and six Commissioners who
shall be natural-born citizens of the Philippines and, at the
time of their appointment, at least thirty-five years of age,
holders of a college degree, and must not have been
candidates for any elective positions in the immediately
preceding elections. However, a majority thereof,
including the Chairman, shall be members of the
Philippine Bar who have been engaged in the practice of
law for at least ten years.
(2) The Chairman and the Commissioners shall be
appointed by the President with the consent of the
Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, three
Members shall hold office for seven years, two Members
for five years, and the last Members for three years,
without reappointment. Appointment to any vacancy shall
be only for the unexpired term of the predecessor. In no
case shall any Member be appointed or designated in a
temporary or acting capacity.
Section 1. (1) There shall be a Commission on Audit
composed of a Chairman and two Commissioners, who
shall be natural-born citizens of the Philippines and, at the
time of their appointment, at least thirty-five years of age,
Certified Public Accountants with not less than ten years
of auditing experience, or members of the Philippine Bar
who have been engaged in the practice of law for at least
ten years, and must not have been candidates for any
elective position in the elections immediately preceding
their appointment. At no time shall all Members of the
Commission belong to the same profession.
(2) The Chairman and the Commissioners shall be
appointed by the President with the consent of the
Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, one
Commissioner for five years, and the other Commissioner
for three years, without reappointment. Appointment to
any vacancy shall be only for the unexpired portion of the
term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.
Section 8. The Ombudsman and his Deputies shall be
natural-born citizens of the Philippines, and at the time of
their appointment, at least forty years old, of recognized
probity and independence, and members of the Philippine
Bar, and must not have been candidates for any elective
office in the immediately preceding election. The
Ombudsman must have, for ten years or more, been a
judge or engaged in the practice of law in the
Philippines.cralaw
During their tenure, they shall be subject to the same
disqualifications and prohibitions as provided for in
Section 2 of Article 1X-A of this Constitution.
CASES:
Civil Liberties Union v. Executive Secretary, G.R. No.
83896 (1991): In the light of the construction given to
Section 13, Article VII in relation to Section 7, par. (2),
Article IX-B of the 1987 Constitution, Executive Order No.
284 is unconstitutional. Ostensibly restricting the number
of positions that Cabinet members, undersecretaries or
assistant secretaries may hold in addition to their
primary position to not more than (2) positions in the
government and government corporations, Executive
Order No. 284 actually allows them to hold multiple offices
or employment in direct contravention of the express
mandate of Section 13, Article VII of the 1987 Constitution
prohibiting them from doing so, unless otherwise
provided in the 1987 Constitution itself.
Public Interest Center v. Elma: Thus, while all other
appointive officials in the civil service are allowed to hold
other office or employment in the government during their
tenure when such is allowed by law or by the primary
functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly
authorized by the Constitution itself. Section 7, Article
IX-B 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.
Example: The President has the position of NEDA
Chair, the VP may be appointed to a cabinet position,
as it is allowed by the Constitution. The Secretary of
25
 Justice is the ex-officio member of the JBC, also
under the Constitution.
Funa v. Chairman, G.R. No. 191672 (2014): 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 other 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. x x x 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.
D. Commencement of Official Relations (Modes of
Acquiring Title to Public Office)
1. By Appointment
Secs. 2(2), Art. IX-B - “Appointments in the civil service
shall be made only according to merit and fitness to be
determined, as far as practicable, and, except to positions
which are policy-determining, primarily confidential, or
highly technical, by competitive examination.”
Notes:
“so the appointments will be determined by merit and
fitness and shall be made by competent examination.”
“Appointments in the civil service shall be made thru merit
and fitness to be determined as far as practicable except
to positions which are policy-determining, primarily
confidential, or highly technical, by competitive
examination.”
“ the qualifier, as far as practicable, refer to the
comp[etitive examination except as to
“true or false: Appointment made thru CS is made thru
merit and fitness, or my exceptions? The answer is
absolute”
“Appointments in the civil service shall be made thru merit
and fitness is an absolute rule be determined thru to be
determined by competitive examination as far as
practicable and except to positions which are policy-
determining, primarily confidential, or highly technical”
“Why is it a competitive examination is not a necessary
requirement for appoint for primarily confidential, policy-
determining or highly technical”
“what is an example of competitive examination? Answer
Civil Service exam”
“what is a policy determining position? Secretaries”
“pwedeng galling ka sa private sector tapos di ka mag
take ng Civil service exam, bakit ka pa eexamin na
chipipay na CS exam para maging dept. Secretary, eh
you have an MBA from Wharton.”
“An example of highly technical position? Geology
(Philvocs)”
“policy-determining, primarily confidential, or highly
technical position is excepted because there are other
ways to gauge qualification of these people”
“Example of Primarily confidential? Secretaries of boss or
drivers because it the choice of appointing officer or
political affairs officer sa senate and HoR”
“Primarily confidential position are position that affords
intimacy between the appointing power and the appointed
so there are freedom on intercourse between them”
CASES:
Flores vs. Drilon, supra: As may be defined, an
"appointment" is "[t]he designation of a person, by the
person or persons having authority therefor, to discharge
the duties of some office or trust," or "[t]he selection or
designation of a person, by the person or persons having
authority therefor, to fill an office or public function and
discharge the duties of the same.”
Dator vs. Carpio-Morales, G.R. No. 237742 (2018): By
Appointment: Nepotism is defined as an appointment
issued in favor of a relative within the third civil degree of
consanguinity or affinity of any of the following: (1)
appointing authority; (2) recommending authority; (3)
chief of the bureau or office; and (4) person exercising
immediate supervision over the appointee.
Requisites: Section 480 (LGC). Qualifications, Terms,
Powers and Duties.
(a) No person shall be appointed administrator
unless he is a citizen of the Philippines, a resident
of the local government unit concerned, of good
moral character, a holder of a college degree
preferably in public administration, law, or any
other related course from a recognized college or
university, and a first grade civil service eligible or
its equivalent. He must have acquired experience
in management and administration work for at
least five (5) years in the case of the provincial or
city administrator, and three (3) years in the case
of the municipal administrator.
Notes:
“Appointment by an appointing officer in some jurisdiction
requires confirmation”
26
Luego vs. CSC, 143 SCRA 327 (1986): While the
principle is correct, and we have applied it many times, it
is not correctly applied in this case. The argument begs
the question. The appointment of the petitioner was not
temporary but permanent and was therefore protected by
Constitution. The appointing authority indicated that it was
permanent, as he had the right to do so, and it was not for
the respondent Civil Service Commission to reverse him
and call it temporary.
Notes:
“How we characterize appointment in Luego v CSC, its
discretionary. Its discretionary to the appointing officer”
CSC vs. Salas, G.R. No. 123708 (1997): It can thus be
safely determined therefrom that the occupant of a
particular position could be considered a confidential
employee if the predominant reason why he was chosen
by the appointing authority was, to repeat, 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.
Withal, where the position occupied is remote from that of
the appointing authority, the element of trust between
them is no longer predominant.
It is the nature of the position which finally determines
whether a position is: a.) primarily confidential, b.)policy
determining or c.)highly technical. Senator Tanada: “in the
1st instance, it is the appointing power that determines the
nature of the position. In case of conflict, then it is the
Court that determines whether the position is primarily
confidential or not.
Because, he is not directly reporting to the offce of the
chairman in the performance of his official duty, The latter
is himself answerable to the Chairman and the Board of
Directors. Obviously, as the lowest in the chain of
command, private respondent does not enjoy that
“primarily close intimacy” which characterizes a
confidential employee.
Camarines Norte vs. Gonzales, G.R. No. 185740
(2013): The provincial administrator position has been
classified into a primarily confidential, non-career position
when Congress, through RA 7160, made substantial
changes to it.
a. Classification
1) Permanent or Temporary
Sec. 27, Book V, Administrative Code
Employment Status. — Appointment in the career
service shall be permanent or temporary.
(1) Permanent status. — A permanent
appointment shall be issued to a person who
meets all the requirements for the positions to
which he is being appointed, including the
appropriate eligibility prescribed, in accordance
with the provisions of law, rules and standards
promulgated in pursuance thereof.
(2) Temporary appointment. — In the absence of
appropriate eligibles and it becomes necessary in
the public interest to fill a vacancy, a temporary
appointment shall be issued to a person who
meets all the requirements for the position to
which he is being appointed except the
appropriate civil service eligibility: Provided, That
such temporary appointment shall not exceed
twelve months, but the appointee may be
replaced sooner if a qualified civil service eligible
becomes available.
CASES:
CSC vs. Darangina, G.R. No. 167472 (2007): It is clear
that a permanent appointment can issue only to a person
who possesses all the requirements for the position
to which he is being appointed, including the
appropriate eligibility. Differently stated, as a rule, no
person may be appointed to a public office unless he
or she possesses the requisite qualifications. The
exception to the rule is where, in the absence of
appropriate eligibles, he or she may be appointed to
it merely in a temporary capacity. Such a temporary
appointment is not made for the benefit of the appointee.
Rather, an acting or temporary appointment seeks to
prevent a hiatus in the discharge of official functions by
authorizing a person to discharge the same pending the
selection of a permanent appointee. In Cuadra v.
Cordova, this Court defined a temporary appointment as
"one made in an acting capacity, the essence of which lies
in its temporary character and its terminability at pleasure
by the appointing power." Thus, the temporary appointee
accepts the position with the condition that he shall
surrender the office when called upon to do so by the
appointing authority. Under Section 27 (2), Chapter 5,
Subtitle A, Title I, Book V of the same Code, the term of a
temporary appointment shall be 12 months, unless
sooner terminated by the appointing authority. Such pre-
termination of a temporary appointment may be with or
without cause as the appointee serves merely at the
pleasure of the appointing power.
This Court held that when a temporary appointee is
required to relinquish his office, he is being separated
precisely because his term has expired. Thus,
reinstatement will not lie in favor of respondent. Starkly
put, with the expiration of his term upon his replacement,
there is no longer any remaining term to be served.
Consequently, he can no longer be reinstated.
De Castro vs. Carlos, G.R. No.194994 (2013): This
Court held that when a temporary appointee is required to
relinquish his office, he is being separated precisely
because his term has expired. Thus, reinstatement will
not lie in favor of respondent. Starkly put, with the
expiration of his term upon his replacement, there is no
27
longer any remaining term to be served. Consequently,
he can no longer be reinstated.
Province of Camarines Sur vs. CA, 246 SCRA 281
(1995): This Court held that when a temporary appointee
is required to relinquish his office, he is being separated
precisely because his term has expired. Thus,
reinstatement will not lie in favor of respondent. Starkly
put, with the expiration of his term upon his replacement,
there is no longer any remaining term to be served.
Consequently, he can no longer be reinstated.
Such lack of a civil service eligibility made his
appointment temporary and without a fixed and definite
term and is dependent entirely upon the pleasure of the
appointing power. The fact that private respondent
obtained civil service eligibility later on is of no moment as
his having passed the supervising security guard
examination, did not ipso facto convert his temporary
appointment into a permanent one. In cases such as the
one at bench, what is required is a new appointment since
a permanent appointment is not a continuation of the
temporary appointment — these are two distinct acts of
the appointing
authority.
“When he pass the CSC while in temporary appointee.
His (Permanent)appointment does not retroact when he
was (temporarily) Appointed. It must have another
appointmenr)
Sevilla vs. CA, 209 SCRA 637(1992): 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. 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 connotes merely the imposition of additional
duties, upon a person already in the public service by
virtue of an earlier appointment or election. A mere
"designation" does not confer upon the designee security
of tenure in the position or office which he occupies in an
"acting" capacity only.
The power of appointment is discretionary. Its exercise
may not be controlled by the courts. The choice of an
appointee from among qualified candidates or applicants
is a political and administrative decision calling for
considerations of wisdom, convenience, utility and the
interests of the service which can best be made by the
head of office concerned for he is familiar with the
organizational structure and environmental
circumstances within which the appointee must function.
2) Regular or Ad Interim
Sec. 16, Art. VII: The President shall nominate
and, with the consent of the Commission on
Appointments, appoint the heads of the executive
departments, ambassadors, other public
ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain,
and other officers whose appointments are
vested in him in this Constitution. He shall also
appoint all other officers of the Government
whose appointments are not otherwise provided
for by law, and those whom he may be authorized
by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the
heads of departments, agencies, commissions,
or boards.
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until
disapproved by the Commission on
Appointments or until the next adjournment of the
Congress.
CASES:
Matibag vs. Benipayo, supra: An ad interim
appointment is a permanent appointment because it takes
effect immediately and can no longer be withdrawn by the
President once the appointee has qualified into office. The
fact that it is subject to confirmation by the Commission
on Appointments does not alter its permanent character.
The Constitution itself makes an ad interim appointment
permanent in character by making it effective until
disapproved by the Commission on Appointments or until
the next adjournment of congress.
An ad interim appointment becomes complete and
irrevocable once the appointee has qualified into office.
The withdrawal or revocation of an ad interim appointment
is possible only if it is communicated to the appointee
before the moment he qualifies, and any withdrawal or
revocation thereafter is tantamount to removal from office.
An ad interim appointment can be terminated for two
causes specified in the Constitution.
1. Disapproval of the ad interim appointment by the
Commission on Appointments.
2. Adjournment of Congress without the Commission on
Appointments acting on his appointment.
While an ad interim appointment is permanent and
irrevocable except as provided by law, an appointment or
designation in a temporary or acting capacity can be
withdrawn or revoked at the pleasure of appointing power.
b. Appointments to the Civil Service
Secs. 2(1), 3, 4, Art. IX-B, 1987 Constitution
Section 2. (1) The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the
Government, including government-owned or
controlled corporations with original charters.
28

Section 3. The Civil Service Commission, as the
central personnel agency of the Government, shall
establish a career service and adopt measures to
promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service. It
shall strengthen the merit and rewards system,
integrate all human resources development programs
for all levels and ranks, and institutionalize a
management climate conducive to public
accountability. It shall submit to the President and the
Congress an annual report on its personnel
programs.
Section 4. All public officers and employees shall take
an oath or affirmation to uphold and defend this
Constitution.
Discussion:
Sec. 2(1)
● Only those GOCCs with original charters are
embraced under the Civil Service.
● On questions such as the right to strike (because
government employees cannot strike), what if one
works in a GOCC without an original charter? He can
strike, that is s the implication. In other words, your
agency will be covered by the Labor Code.
● Civil service is a limited term compared to public office
because if one is employed in a GOCC, he may be a
public officer but he may not necessarily be a civil
servant.
● Charter refers to the law that enacts the creation of
the GOCC. If one is an agency with an original
charter, that means its birth is through a law. In other
words, if there is no original charter, it is created under
the Corporation Code of the Philippines and covered
by the Labor Code. Charter means the law that
creates the agency.
Sec. 3
● What is important here is that the Civil Service is the
central personnel agency of the government.
Sec. 4
● The other word for the “taking of an oath” is
qualification.
● Under Article 7 of the Constitution, for instance, what
is the meaning of “qualified” there? As in
qualifications? No. It means taking an oath.
● Civil servants must qualify, meaning take an oath
before they can assume office.
CASES:
Laya vs. CA, G.R. No. 205813 (2018): An employee in
the private sector who did not expressly agree to the
terms of an early retirement plan cannot be separated
from the service before he reaches the age of 65 years.
The employer who retires the employee prematurely is
guilty of illegal dismissal and is liable to pay his
backwages and to reinstate him without loss of seniority
and other benefits, unless the employee has meanwhile
reached the mandatory retirement age under the Labor
Code, in which case he is entitled to separation pay
pursuant to the terms of the plan, with legal interest on the
backwages and separation pay reckoned from the finality
of the decision.
National Transmission Corp. vs. COA, G.R. No.
223625 (2016): The rules of employment in private
practice differs from government service. As astutely
explained by our colleague Justice Marvic Leonen, that
while a private employer should apply the four-fold test in
determining employer-employee relationship as it is
strictly bound by the labor code, a government employer
or GOCC, must, apart from applying the four-fold test,
comply with the rules of the CSC in determining the
existence of employer-employee relationship. The
difference between private and public employment is
readily apparent in our legal landscape. For one, the
Labor Code recognizes that the terms and conditions of
employment of all government employees, including
those of GOCCs, shall be governed by the civil service
law, rules and regulations. Particularly, in cases of
GOCCs created by special law, the terms and conditions
of employment of its employees are particularly governed
by its charter.
1) Career Service
Secs. 7, 8(1), Book V, Administrative Code
Section 7. Career Service. - The Career Service
shall be 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.
The Career Service shall include:
(1) Open Career positions for appointment to
which prior qualification in an appropriate
examination is required;
(2) Closed Career positions which are scientific,
or highly technical in nature; these include the
faculty and academic staff of state colleges and
universities, and scientific and technical positions
in scientific or research institutions which shall
establish and maintain their own merit systems;
(3) Positions in the Career Executive Service;
namely, Undersecretary, Assistant Secretary,
Bureau Director, Assistant Bureau Director,
29
Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of
equivalent rank as may be identified by the
Career Executive Service Board, all of whom are
appointed by the President;
(4) Career officers, other than those in the Career
Executive Service, who are appointed by the
President, such as the Foreign Service Officers in
the Department of Foreign Affairs;
(5) Commissioned officers and enlisted men of
the Armed Forces which shall maintain a
separate merit system;
(6) Personnel of government-owned or controlled
corporations, whether performing governmental
or proprietary functions, who do not fall under the
non-career service; and
(7) Permanent laborers, whether skilled, semi-
skilled, or unskilled.
Section 8. Classes of Positions in the Career
Service. -
(1) Classes of positions in the career service
appointment to which requires examinations shall
be grouped into three major levels as follows:
(a) The first level shall include clerical, trades,
crafts, and custodial service positions which
involve non-professional or subprofessional work
in a non-supervisory or supervisory capacity
requiring less than four years of collegiate
studies;
(b) The second level shall include professional,
technical, and scientific positions which involve
professional, technical, or scientific work in a non-
supervisory or supervisory capacity requiring at
least four years of college work up to Division
Chief level; and
(c) The third level shall cover positions in the
Career Executive Service.
2) Non-career Service
Sec. 9, Title I, Book V, Administrative Code
Section 9. Non-Career Service. - The Non-Career
Service shall be characterized by (1) entrance on
bases other than those of the usual tests of merit
and fitness utilized for the career service; and (2)
tenure which is limited to a period specified by
law, or which is coterminous with that of the
appointing authority or subject to his pleasure, or
which is limited to the duration of a particular
project for which purpose employment was made.
The Non-Career Service shall include:
(1) Elective officials and their personal or
confidential staff;
(2) Secretaries and other officials of Cabinet rank
who hold their positions at the pleasure of the
President and their personal or confidential
staff(s);
(3) Chairman and members of commissions and
boards with fixed terms of office and their
personal or confidential staff;
(4) Contractual personnel or those whose
employment in the government is in accordance
with a special contract to undertake a specific
work or job, requiring special or technical skills
not available in the employing agency, to be
accomplished within a specific period, which in no
case shall exceed one year, and performs or
accomplishes the specific work or job, under his
own responsibility with a minimum of direction
and supervision from the hiring agency; and
(5) Emergency and seasonal personnel.
3) Appointments by the President
Secs. 14- 16, Art. VII, 1987 Constitution
Section 14. Appointments extended by an Acting
President shall remain effective, unless revoked
by the elected President, within ninety days from
his assumption or reassumption of office.
Section 15. Two months immediately before the
next presidential elections and up to the end of
his term, a President or Acting President shall not
make appointments, except temporary
appointments to executive positions when
continued vacancies therein will prejudice public
service or endanger public safety.
Section 16. The President shall nominate and,
with the consent of the Commission on
Appointments, appoint the heads of the executive
departments, ambassadors, other public
ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain,
and other officers whose appointments are
vested in him in this Constitution. He shall also
appoint all other officers of the Government
whose appointments are not otherwise provided
for by law, and those whom he may be authorized
by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the
heads of departments, agencies, commissions,
or boards.
The President shall have the power to make
appointments during the recess of the Congress,
30
 whether voluntary or compulsory, but such
appointments shall be effective only until
disapproved by the Commission on
Appointments or until the next adjournment of the
Congress.
Discussion:
● Secs. 14-16 are an enumeration of the applicable
provisions as an appointing power of the
President.
CASES:
Velicaria-Garafil vs. OP, G.R. No. 203372 (2015): The
following elements should always concur in the making of
a valid (which should be understood as both complete and
effective) appointment: (1) authority to appoint and
evidence of the exercise of the authority; (2) transmittal of
the appointment paper and evidence of the transmittal; (3)
a vacant position at the time of appointment; and (4)
receipt of the appointment paper and acceptance of the
appointment by the appointee who possesses all the
qualifications and none of the disqualifications. The
concurrence of all these elements should always apply,
regardless of when the appointment is made, whether
outside, just before, or during the appointment ban. These
steps in the appointment process should always concur
and operate as a single process. There is no valid
appointment if the process lacks even one step. And,
unlike the dissent's proposal, there is no need to further
distinguish between an effective and an ineffective
appointment when an appointment is valid.
Discussion:
● In Velicaria-Garafil, what are the four requisites
as to the validity of an appointment that is issued
by the President? A: (1) authority to appoint and
evidence of the exercise of the authority; (2)
transmittal of the appointment paper and
evidence of the transmittal; (3) a vacant position
at the time of appointment; and (4) receipt of the
appointment paper and acceptance of the
appointment by the appointee who possesses all
the qualifications and none of the
disqualifications.
a) Career Executive Service
Secs. 7(3), Book V, Administrative Code
The Career Service shall include:
(3) Positions in the Career Executive Service;
namely, Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau
Director, Regional Director, Assistant
Regional Director, Chief of Department
Service and other officers of equivalent rank
as may be identified by the Career Executive
Service Board, all of whom are appointed by
the President;
Discussion:
Sec. 7(3)
● Sec. 7(3) is an enumeration of appointments
under the Career Executive Service. Those
appointments that are made by the President to
third level positions in the government – for
officials in the civil service, particularly in the
Executive branch.
CASES:
PEZA vs. Mercado, G.R. No. 172144 (2010):
Appointment to a CES rank is made by the President
upon the Board’s recommendation. It is this process
which completes the official’s membership in the CES and
confers on him security of tenure in the CES.
Discussion:
● Appointment of the Career Executive Service is
passing a battery of tests. There is a battery of tests
that one must hurdle in order to be appointed a
Director in the Career Executive Service.
● If one is a member of the Career Executive Service,
he holds a certain rank so he is protected. “Pwede
kang ilipat lipat lang, di ka basta basta mawawala.”
CSC vs. CA, G.R. No. 185766 (2010): In order for a
position to be covered by the CES, two elements must
concur. First, the position must be (1) a position
enumerated under Book V, Title I, Subsection A, Chapter
2, Section 7(3) of the Administrative Code of 1987 or (2)
a position of equal rank. Second, the holder of the position
must be a presidential appointee.
Discussion: One thing that is stressed here is that
the Career Executive Service covers only those
appointments made by the President. If one is an
official, let's say of the Judiciary or Congress, he is
not covered by the CES, no need to undergo the
battery of tests that is required of appointments in the
Executive branch. That is very clear under Sec. 7 of
Book V.
CESB vs. CSC, G.R. No. 197762 (2017): To require the
occupants of the subject PAO positions to possess third-
level eligibility would be to amend the law and defeat its
spirit and intent. Based on the foregoing, it is clear that
occupants of the subject PAO positions are only
mandated to comply with requirements as to age,
citizenship, education, and experience. Since third-level
eligibility is not at all mentioned in the law, it would be
improper for the CESB to impose this additional
qualification as a prerequisite to permanent
appointments.
CESB v. CSC, G.R. No. 196890 (2018): The CESB was
established to serve as the governing body of the CES
and mandated to promulgate rules, standards and
31
procedures on the selection, classification, compensation
and career development of members of the CES. The
CESB is autonomous, though it is administratively
attached to CSC - because it is an attached agency,
CESB decisions are expressly subject to CSC’s review on
appeal.
Discussion: CESB v. CSC (2017 & 2018)
● These are two cases involving a tug of war
between these two agencies of the government.
The CSC is the central personnel agency of the
government but we have the CES for third level
positions.
● CESB (2017), supra: Article IX-B of the 1987 Constitution
● The PAO lawyers are not required to undergo the
battery of tests.
b) The Civil Service Commission
i. Guarantee of Independence
Sec. 1, Art. IX-A, 1987 Constitution
Section 1. The Constitutional Commissions,
which shall be independent, are the Civil
Service Commission, the Commission on
Elections, and the Commission on Audit.
ii. Composition
Sec. 1, Art. IX-B
Section 1. (1) The civil service shall be
administered by the Civil Service
Commission composed of a Chairman and
two Commissioners who shall be natural-
born citizens of the Philippines and, at the
time of their appointment, at least thirty-five
years of age, with proven capacity for public
administration, and must not have been
candidates for any elective position in the
elections immediately preceding their
appointment.
(2) The Chairman and the Commissioners
shall be appointed by the President with the
consent of the Commission on Appointments
for a term of seven years without
reappointment. Of those first appointed, the
Chairman shall hold office for seven years, a
Commissioner for five years, and another
Commissioner for three years, without
reappointment. Appointment to any vacancy
shall be only for the unexpired term of the
predecessor. In no case shall any Member be
appointed or designated in a temporary or
acting capacity.
CASES:
Funa vs. Villar, G.R. No. 192791 (2012): Where the
Constitution or, for that matter, a statute, has fixed the
term of office of a public official, the appointing authority
is without authority to specify in the appointment a term
shorter or longer than what the law provides.
Discussion: The three Constitutional Commissions
are not just autonomous, they are independent.
Autonomous, meaning self-determining.
Independent, higher level of freedom.
iii. Powers
CASES:
entrusts to the CSC the administration of the civil service,
which is comprised of all branches, subdivisions,
instrumentalities, and agencies of the Government,
including government-owned or controlled corporations.
Although the specific powers of the CSC are not
enumerated in the final version of 1987 Constitution, it is
evident from the deliberations of the framers that the
concept of a “central personnel agency” was considered
all-encompassing. The concept was understood to be
sufficiently broad as to include the authority to promulgate
and enforce policies on personnel actions, to classify
positions, and to exercise all powers and functions
inherent in and incidental to human resources
management. (deliberated by Foz, Aquino and
Regalado.)
CESB (2018), supra: Art IX-B of 1987 Consti charged the
CSC (as the central personnel agency of the
Government) with the administration of the civil service.
Book V, Title I, Subtitle A, Chapter 3, Section 12 of the
Admin Code of 1987 provides for the powers and
functions of the CSC, which includes power to decide and
pass upon all civil service matters. Career Service
appointments could be permanent or temporary. For an
employee to attain a permanent status in his employment:
(1) he must first be a CES eligible. Such eligibility can be
acquired by passing the requisite civil service
examinations and obtaining passing grade to the same.
After completing and passing the examination process,
said employee is entitled to conferment of a CES eligibility
and the inclusion of his name in the roster of CES
eligibles; (2) it is also necessary that an individual who
was conferred CES eligibility be appointed to a CES rank.
Such appointment is made by the President upon the
recommendation of the CESB. Only after such process
will the employees appointment in the service be
considered as a permanent one, entitling him to security
of tenure.
Torres vs. De Leon, G.R. No. 199440 (2016): In this
particular case, the CA did not err in ruling that the CSC
has jurisdiction over the PNRC because the issue at hand
is the enforcement of labor laws and penal statutes, thus,
in this particular matter, the PNRC can be treated as a
GOCC, and as such, it is within the ambit of Rule I,
Section 1 of the Implementing Rules of Republic Act
6713, stating that: Section 1. These Rules shall cover all
officials and employees in the government, elective and
32
appointive, permanent or temporary, whether in the
career or noncareer service, including military and police
personnel, whether or not they receive compensation,
regardless of amount. Thus, having jurisdiction over the
PNRC, the CSC had authority to modify the penalty and
order the dismissal of petitioner from the service. Under
the Administrative Code of 1987, as well as decisions of
this Court, the CSC has appellate jurisdiction on
administrative disciplinary cases involving the imposition
of a penalty of suspension for more than thirty (30) days,
or fine in an amount exceeding thirty (30) days salary.
4) Requisites
CASES:
Corpuz vs. CA, supra: Atty. Corpuz was appointed as
MTRCB’s Legal Counsel-Prosecutor and Investigation
Services. This appointment was approved by the
Regional Director but was not confirmed by the MTRCB
Board.
It is long settled in the law of public offices and officers
that where the power of appointment is absolute, and the
appointee has been determined upon, no further consent
or approval is necessary, and the formal evidence of the
appointment, the commission, may issue at once. Where,
however, the assent or confirmation of some other officer
or body is required, the commission can issue, or the
appointment may be complete only when such assent or
confirmation is obtained. In either case, the appointment
becomes complete when the last act required of the
appointing power is performed. Until the process is
completed, the appointee can claim no vested right in the
office nor invoke security of tenure. Hence, in the case of
Corpuz, since the last act required for the completion of
his appointment, viz., approval by the MTRCB itself, was
not obtained, as a matter of fact, the MTRCB ultimately
disapproved it, his appointment ceased to have effect, if
at all, and his services were properly terminated.
Velicaria-Garafil, supra: Prior to the conduct of the May
2010 elections, then President Gloria Macapagal-Arroyo
issued more than 800 appointments to various positions
in several government offices, this includes the
appointments of the petitioners. When President Aquino
III assumed office, he issued EO 2 recalling, withdrawing,
and revoking appointments issued by President
Macapagal-Arroyo which violated the ban on midnight
appointments.
An acceptance is still necessary in order for the appointee
to validly assume his post and discharge the functions of
his new office, and thus make the appointment effective.
There can never be an instance where the appointment
of an incumbent will automatically result in his resignation
from his present post and his subsequent assumption of
his new position; or where the President can simply
remove an incumbent from his current office by appointing
him to another one. Acceptance through oath or any
positive act is still indispensable before any assumption
of office may occur. The appointment is deemed complete
once the last act required of the appointing authority has
been complied with and its acceptance thereafter by the
appointee in order to render it effective.
The following elements should always concur in the
making of a valid (which should be understood as both
complete and effective) appointment:
(1) authority to appoint and evidence of the exercise of the
authority;
(2) transmittal of the appointment paper and evidence of
the transmittal;
(3) a vacant position at the time of appointment; and
(4) receipt of the appointment paper and acceptance of
the appointment by the appointee who possesses all the
qualifications and none of the disqualifications.
The concurrence of all these elements should always
apply, regardless of when the appointment is made,
whether outside, just before, or during the appointment
ban. These steps in the appointment process should
always concur and operate as a single process. There is
no valid appointment if the process lacks even one step.
And, unlike the dissent's proposal, there is no need to
further distinguish between an effective and an ineffective
appointment when an appointment is valid.
Dator, supra: Dator hired his sister, Macandile wherein
there was no appointment paper that was submitted to the
Sagguniang Bayan for the required confirmation pursuant
to Sec. 443(d) of the LGC. Dator alleged that the position
of his sister did not exist in the municipality’s plantilla of
personnel, hence, there was no appointment paper
submitted to the Sangguniang Bayan for confirmation.
Here, it is admitted that there was no confirmation of the
appointment of Macandile by the Sangguniang Bayan
precisely because there was no existing plantilla for the
position of municipal administrator or chief administrative
officer in the local government of Lucban, Quezon. The
lack of plantilla, however, cannot be used as a justification
for one to be appointed to assume the exact functions and
duties of a municipal administrator, sans the fulfillment of
requisites set out in the law. What cannot be legally done
directly cannot be done indirectly. This rule is basic and,
to a reasonable mind, does not need explanation. Indeed,
if acts that cannot be legally done directly can be done
indirectly, then all laws would be illusory.
c. De Facto Officers
De facto vs. De Jure: A must to
remember/understand for practical purposes for the
Bar. This is a regular question in the Bar. Distinguish
de jure from de facto officers.
CASES:
Luna vs. Rodriguez, G.R. No. L-12647 (1917):
33
Atty. Nad: If you’re a de facto officer, you are an officer to
the eyes of many but not from the point of view of law.
There is something that happened in your appointment
that will make you not an officer from the point of view of
law. Such as failing to qualify, meaning wala kang oath of
office. Hindi ka nag oath, kulang sayo yon or hindi ka na-
confirm ng confirmatory body: That would make you a de
facto officer.
A de jure officer on the other hand is, someone who have
met all the requirements, all the requisites.
A must for everybody: Distinguish de jure officer, de facto
officer, and usurper.
*The case is about a judge but Atty. Nad said to read it in
the light of public officers
A public officer de jure is one who is exercising the office
as a matter of right. He is an officer of a court which has
been duly and legally elected or appointed. He is an
officer of the law fully vested with all of the powers and
functions conceded under the law.
A public officer de facto is an officer who is not fully
invested with all of the powers and duties conceded to
such position, but is exercising the office under some
color of right. A public officer de facto may be said to be
one who has the reputation of being the officer he
assumes to be and yet is not a good officer in point of law
— that is, there exists some defect in his appointment or
election and in his right to exercise judicial functions at the
particular time.
A public officer de facto is one whose acts, though
not those of a lawful officer, the law, upon principles
of policy and justice will hold valid so far as they
involve the interest of the public and third persons,
where the duties of the office were exercised:
(a) Without a known appointment or election, but under
such circumstances of reputation or acquiescence as
were calculated to induce people, without inquiry, to
submit to or invoke his action, supposing him to be the
officer he assumes to be;
(b) under color of a known or valid appointment or
election, where the officer has failed to conform to some
precedent requirement or condition, for example, a failure
to take the oath or give a bond, or similar defect;
(c) under color of a known election or appointment, void
because the officer was not eligible, or because there was
a want of power in the electing or appointing body, or by
reason of some defect or irregularity in its exercise, such
ineligibility, want of power or defect being unknown to the
public; and
(d) under color of an election, or appointment, by the
same is adjudged to be such.
Torres vs. Ribo, 81 Phil. 44 (1948): The facts of the
case are important here. During the canvassing, two
officers were removed from their positions because one
was away, one ran as a government officer. Now, the
governor appointed two others in the board when there is
an express enumeration in the law as to who can occupy
the position. The protestee maintains that the appointees
were de facto officers. This contention is without any
foundation in law.
An officer de facto is one who has the reputation of being
the officer he assumes to be, and yet is not a good officer
in point of law. He must have acted as an officer for such
a length of time, under color of title and under such
circumstances of reputation or acquiescence by the public
and public authorities, as to afford a presumption of
appointment or election, and induce people, without
injury, and relying on the supposition that he is the officer
he assumes to be, to submit to or invoke his action. In this
case, both appointees did not possess any of these
conditions.
The SC said, the appointees cannot occupy the position
– they are usurpers.
- If the public officer has met all the qualifications
and thereafter was appointed, including taking an
oath, then the latter shall be considered as a de
jure officer.
- If the public officer is considered to be a de facto
officer, there is a problem in the latter’s
appointment.
- The public officer is a usurper if he lacks
qualifications such as in this case.
Monroy vs. CA, 20 SCRA 620 (1967): Mayor Monroy ran
for a position during his incumbency. Under the laws then
prevailing, if you ran for another position, your
incumbency is to stop or is terminated. Meaning, you are
automatically resigned from your position. The vice mayor
assumed office. However, Monroy decided to withdraw
his candidacy for Congress and decided that he has to go
back to his position as mayor
Based on these facts, you have to make an assessment:
1st: Santiago who is the vice mayor, when he assumed
the position of mayor, is he a de facto officer, a de jure
officer, or a usurper? – De Jure officer from the POV of
law
2nd: When mayor Monroy decided to sit as mayor again,
though he has been considered as automatically resigned
but when he withdrew his certificate of candidacy he
thought that he can revert back to his position as mayor.
So when he took over the city hall, what was he? A de
jure officer, a de facto officer or usurper – Usurper.
General Rule: A de facto officer would retain his salary
that he received though he was a de facto officer
1. If he assumed office in good faith
2. If there is no de jure officer.
34
The resulting hardship occasioned by the operation of this
rule to the de facto officer who did actual work is
recognized; but it is far more cogently acknowledged that
the de facto doctrine has been formulated, not for the
protection of the de facto officer principally, but rather for
the protection of the public and individuals who get
involved in the official acts of persons discharging the
duties of an office without being lawful officers. The
question of compensation involves different principles
and concepts however. Here, it is possession of title, not
of the office, that is decisive. A de facto officer, not having
good title, takes the salaries at his risk and must therefore
account to the de jure officer for whatever amount of
salary he received during the period of his wrongful
retention of the public office
Corpuz vs. CA, G.R. No. 123989 (1998): A public official
or employee who assumed office under an incomplete
appointment is merely a de facto officer for the duration of
his occupancy of the office for the reason that he
assumed office under color of a known appointment which
is void by reason of some defect or irregularity in its
exercise. Undeniably, under the facts here, Atty. Corpuz
was such a de facto officer.
Menzon vs. Petilla, 197 SCRA 251 (1991): No governor
had been proclaimed, and the LGC is silent on the mode
of succession in the event of a temporary vacancy in the
office, so the Secretary of the LGU designated Menzon, a
senior member of the Sangguniang Panlalawigan to act
as the Vice-Governor. It was held that this appointment
was invalid.
Under the circumstances of this case and considering the
silence of the Local Government Code, the Court rules
that, in order to obviate the dilemma resulting from an
interregnum created by the vacancy, the President, acting
through her alter ego, the Secretary of Local Government,
may remedy the situation. The exigencies of public
service demanded nothing less than the immediate
appointment of an acting Vice-Governor, at the very least,
Menzon is a de facto officer entitled to compensation.
Upon the principle of public policy on which the de facto
doctrine is based and basic considerations of justice, it
would be highly iniquitous to now deny him the salary due
him for the services he actually rendered as the acting
Vice-Governor
Flores vs. Drilon, supra: Sec. 13 par. d of RA 7227
under which Mayor Richard Gordon was appointed was
declared unconstitutional. As incumbent elective official,
Gordon is ineligible for appointment to the position of
Chairman of the Board and Chief Executive of SBMA;
hence, his appointment thereto pursuant to a legislative
act that contravenes the Constitution cannot be
sustained. He however remains Mayor of Olongapo City,
and his acts as SBMA official are not necessarily null and
void; he may be considered a de facto officer, "one whose
acts, though not those of a lawful officer, the law, upon
principles of policy and justice, will hold valid so far as they
involve the interest of the public and third persons, where
the duties of the office were exercised under color of a
known election or appointment, void because the officer
was not eligible, or because there was a want of power in
the electing or appointing body, or by reason of some
defect or irregularity in its exercise, such ineligibility, want
of power or defect being unknown to the public or under
color of an election, or appointment, by or pursuant to a
public unconstitutional law, before the same is adjudged
to be such
CSC vs. Unda, G.R. No. 213237 (2017): A de facto
officer is one who is in possession of an office, and is
discharging his duties under color of authority, by which
is meant authority derived from an appointment, however
irregular or informal, so that the incumbent is not a mere
volunteer. Consequently, where there is no de jure officer,
a de facto officer who, in good faith, has possession of the
office and discharges the duties pertaining thereto, is
legally entitled to the emoluments of the office, and may
in an appropriate action recover the salary, fees and other
compensations attached to the office.
Note: volunteer = usurper
The correct term is usurper
Republic vs. Sereno, G.R. No. 237428 (2018): This
resolution treats of the motion regarding the quo warranto
case filed against Sereno. OSG argues that Sereno’s
repeated failure to file her SALNs and her non-submission
thereof to the JBC which the latter required to prove the
integrity of an applicant affect Sereno’s integrity; that not
having possessed of proven integrity, she failed to meet
the constitutional requirement for appointment to the
Judiciary.
While an appointment is an essentially discretionary
executive power, it is subject to the limitation that the
appointee should possess none of the disqualifications,
but all the qualifications required by law. Where the law
prescribes certain qualifications for a given office or
position, courts may determine whether the appointee has
the requisite qualifications, absent which, his right or title
thereto may be declared void.
The effect of a finding that a person appointed to an office
is ineligible therefore is that his presumably valid
appointment will give him color of title that confers on him
the status of a de facto officer.
A de facto judge is one who exercises the duties of a
judicial office under color of an appointment or election
thereto. He differs, on the one hand, from a mere usurper
who undertakes to act officially without any color of right,
and on the others hand, from a judge de jure who is in all
respects legally appointed and qualified and whose term
of office has not expired.
A judge de facto assumes the exercise of a part of the
prerogative of sovereignty, and the legality of that
assumption is open to the attack of the sovereign power
alone. Accordingly, it is a well- established principle,
dating from the earliest period and repeatedly confirmed
by an unbroken current of decisions, that the official acts
35
of a de facto judge are just as valid for all purposes as
those of a de jure judge, so far as the public or third
persons who are interested therein are concerned.
Sereno’s occupation as chief justice is considered de
facto. De facto chief justice.
Atty.’s reminder: De facto vs De Jure: The clue here is,
it has nothing to do with your qualifications and eligibility.
If it has something to do with your qualifications and
eligibility, you are a usurper.
d. Remedies to Question Title
Secs. 1, 5, 7, 10, 11, Rule 66, Rules of Court
Section 1. Action by Government against individuals.
An action for the usurpation of a public office, position or
franchise may be commenced by a verified petition
brought in the name of the Republic of the Philippines
against:
a) A person who usurps, intrudes into, or unlawfully holds
or exercises a public office, position or franchise;
b) A public officer who does or suffers an act which, by
the provision of law, constitutes a ground for the forfeiture
of his office; or
c) An association which acts as a corporation within the
Philippines without being legally incorporated or without
lawful authority so to act.
Sec. 5. When an individual may commence such an
action.
A person claiming to be entitled to a public office or
position usurped or unlawfully held or exercised by
another may bring an action therefor in his own name.
Sec. 7. Venue.
An action under the preceding six sections can be brought
only in the Supreme Court, the Court of Appeals, or in the
Regional Trial Court exercising jurisdiction over the
territorial area where the respondent or any of the
respondents resides, but when the Solicitor General
commences the action, it may be brought in a Regional
Trial Court in the City of Manila, in the Court of Appeals,
or in the Supreme Court.
Sec. 10. Rights of persons adjudged entitled to public
office; delivery of books and papers; damages.
If judgment be rendered in favor of the person averred in
the complaint to be entitled to the public office he may,
after taking the oath of office and executing any official
bond required by law, take upon himself the execution of
the office, and may immediately thereafter demand of the
respondent all the books and papers in the respondent’s
custody or control appertaining to the office to which the
judgment relates. If the respondent refuses or neglects to
deliver any book or paper pursuant to such demand, he
may be punished for contempt as having disobeyed a
lawful order of the court. The person adjudged entitled to
the office may also bring action against the respondent to
recover the damages sustained by such person by reason
of the usurpation.
Sec. 11. Limitations.
Nothing contained in this Rule shall be construed to
authorize an action against a public officer or employee
for his ouster from office unless the same be commenced
within one (1) year after the cause of such ouster, or the
right of the petitioner to hold such office or position, arose;
nor to authorize an action for damages in accordance with
the provisions of the next preceding section unless the
same be commenced within one (1) year after the entry
of the judgment establishing the petitioner’s right to the
office in question.
CASES:
Mantala vs. Salvador, G.R. No. 101646 (1992): The Civil
Service Commission, in its Resolution No. 89-779,
approved, adopted and promulgated its "Rules on
Administrative Disciplinary Cases and Rules on Protest
Cases." Part B of said Rules, entitled "B. Rules on Protest
Cases," inter alia sets out with particularity the
Commission's jurisdiction broadly set forth in the
Constitution, to wit:
"Section 3. Final Appellate Jurisdiction. — The Civil
Service Commission shall exercise final and exclusive
appellate jurisdiction over all cases decided by the Merit
Systems Protection Board and the Civil Service Regional
Offices involving contested appointments or promotions."
and prescribes the procedure (Rule IV) governing protest
cases. Said protest cases are described as follows:
"(a) An appointment made in favor of another next-in-rank
employee who is not qualified;
(b) An appointment made in favor of one who is not next-
in-rank;
(c) An appointment made in favor of one who is appointed
by transfer and not next-in-rank, or by reinstatement or by
original appointment, if the employee making the protest
is not satisfied with the written special reason or reasons
given by the appointing authority for such appointment."
These protest cases are decided in the first instance by
the head of the Department or agency, subject to appeal
to the Merit Systems Protection Board, whose decisions
are in turn subject to appeal to the Civil Service
Commission. The latter's decision may, in turn, be
brought to the Supreme Court. It was thus error, because
beyond its competence, for the respondent Trial Court to
take cognizance of the quo warranto and mandamus
action instituted by Dr. Regino which was in essence a
protest against the appointment of Dr. Mantala.
“Quo warranto is not applicable in cases in which there is
an objection on the appointment of person. It should have
been a protest that could have exhausted remedies from
the head of the administrative agency up to the Civil
Service Commission. That’s the difference between a
36
protest and a quo warranto case. Quo Warranto – There
to remove a usurper. Protest is something else”
Torrosa vs. Singson, 232 SCRA 553 (1994): A special
civil action (quo warranto proceeding) can only be
commenced by the Solicitor General or by a "person
claiming to be entitled to a public office or position
unlawfully held or exercised by another."
“You cannot file a quo warranto case if there is no
usurpation. The main essence of Quo warranto is to
object the appointed person or usurper because the
applicant is more deserving, not only because he objects.”
Topacio vs. Sandiganbayan, G.R. No. 179895 (2008):
The person instituting Quo Warranto proceedings on his
own behalf, under Section 5, Rule 66 of the Rules of
Court, must aver and be able to show that he is entitled to
the office in dispute. Without such averment or evidence
of such right, the action may be dismissed at any stage.
In this case, being a collateral attack on a public officer's
title, the petition for certiorari and prohibition must be
dismissed. The only way to assail title to public office is
through quo warranto proceedings. It cannot be attacked
collaterally through other actions such as mandamus or
motion to annul.
“Legal standing is important in Quo Warranto Cases”
Bongbong vs. Parado, 57 SCRA 623 (1974): Those
appointed in office without specific designation of
place cannot complain against any change in venue
assignment. They thus do not have a right to contest the
office just because of the place designation. In Ibañez,
this set up implied that the complainants may be
transferred as the exigencies of service require. Thus,
they have no right to complaint against any change of
assignment, specifically in venue. Ibañez Doctrine.
Romualdez vs. CSC, 225 SCRA 285 (1993): A person
claiming to be entitled to a public office or position
usurped or unlawfully held or exercised by another may
bring an action for quo warranto (Rule 66, Sec. 6, Rules
of Court). The petitioner therein must show a clear legal
right to the office allegedly held unlawfully by another. An
action for quo warranto should be brought within one (1)
year after ouster from office; the failure to institute the
same within the reglementary period constitutes more
than a sufficient basis for its dismissal since it is not proper
that the title to a public office be subjected to continued
uncertainty. An exception to this prescriptive period lies
only if the failure to file the action can be attributed to the
acts of a responsible government officer and not of the
dismissed employee.
Mendoza vs. Allas, 302 SCRA 623 (1999): Quo warranto
is a demand made by the state upon some individual or
corporation 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. In other words, a petition for quo
warranto is a proceeding to determine the right of a
person to the use or exercise of a franchise or office and
to oust the holder from its enjoyment, if his claim is not
well-founded, or if he has forfeited his right to enjoy the
privilege. The action may be commenced for the
Government by the Solicitor General or the fiscal against
individuals who usurp a public office, against a public
officer whose acts constitute a ground for the forfeiture of
his office, and against an association which acts as a
corporation without being legally incorporated. The action
may also be instituted by an individual in his own name
who claims to be entitled to public office or position
usurped or unlawfully held or exercised by another.
A judgment in quo warranto does not bind the
respondent's successor in office, even though such
successor may trace his title to the same source
“In other words, quo warranto cases, are targeted against
an incumbent who is not the right for an occupant.”
Republic vs. Sereno, supra: Quo warranto and
impeachment can proceed independently and
simultaneously. Aside from the difference in their origin
and nature, quo warranto and impeachment may proceed
independently of each other as these remedies are
distinct as to (1) jurisdiction (2) grounds, (3) applicable
rules pertaining to initiation, filing and dismissal, and (4)
limitations. An action for quo warranto may be
commenced by the Solicitor General or public prosecutor,
or by any person claiming to be entitled to the public office
or position usurped or unlawfully held or exercised by
another.
That usurpation of public office is treated as public wrong
and carries with it public interest in our jurisdiction is clear
when Section 1, Rule 66 provides that where the action is
for the usurpation of public office, position or franchise, it
shall be commenced by verified petition brought in the
name of the Republic of the Philippines through the
Solicitor General or public prosecutor.
Nonetheless, the Solicitor General, in the exercise of
sound discretion, may suspend or turn down the
institution of an action for quo warranto where there are
just and valid reasons. Upon receipt of case certified to
him, the Solicitor General may start the prosecution of the
case by filing the appropriate action in court or he may
choose not to file the case at all. The Solicitor General is
given permissible latitude within his legal authority in
actions for quo warranto, circumscribed only by the
national interest and the government policy on the matter
at hand.
2. By Election [Other modes of acquiring Office]
See Election Laws, supra
3. By Succession [Other modes of acquiring Office]
See Constitutional Law, supra, and Local
Governments, infra
4. By Operation of Law [Other modes of acquiring
Office]
37
E. Rights and Duties of Public Officers
3. Rights
a. To the Office
CASES:
Baybay Water District vs. COA, 374 SCRA 482 (2002):
The erroneous application and enforcement of the law by
public officers does not estop the Government from
making a subsequent correction of such errors. More
specifically, where there is an express provision of law
prohibiting the grant of certain benefits, the law must be
enforced even if it prejudices certain parties due to an
error committed by public officials in granting the benefit.
Management Prerogative. A power where an officer may
exercise. The right to exercise the power of the office.
Officials, Head of agencies, have the right to decide the
functions of the offices within a department. In other
words, officials have the right to design the functions of
the offices within the department. However it does not
happen in this case.
Pollo vs. David, G.R. No. 181881 (2011): Public
employers have an interest in ensuring that their agencies
operate in an effective and efficient manner, and the work
of these agencies inevitably suffers from the inefficiency,
incompetence, mismanagement, or other work-related
misfeasance of its employees.
The search of petitioner’s computer was justified there
being reasonable ground for suspecting that the files
stored therein would yield incriminating evidence relevant
to the investigation being conducted by the CSC as
government employer of such misconduct subject to the
anonymous complaint.
“Right to a physical office. Officers enjoy privacy in their
respective physical offices. FIRST AMJUR:
Two-fold inquiry to search a physical office. two-fold
inquiry:
(1) It’s whether the action finds there are reasonable
grounds for suspecting that the violation is work-related or
the search could be non-investigatory.
(2) The search is actually conducted of reasonably related
scope, the circumstances which justify the interference in
the first place meaning that the measures that are
adopted are reasonably.”
b. Security of Tenure
Sec. 2(3), Art. IX-B; Sec. 3, 2nd pa., Art. XIII
Sec. 2(3), Art. IX-B: No officer or employee of the civil
service shall be removed or suspended except for cause
provided by law.
Sec. 3, 2nd pa., Art. XIII: It shall guarantee the rights of
all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including
the right to strike in accordance with law. They shall be
entitled to security of tenure, humane conditions of work,
and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and
benefits as may be provided by law.
Discussion: It shall guarantee the rights of all workers to
self-organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to
strike in accordance with law. They shall be entitled to
security of tenure, humane conditions of work, and a living
wage. They shall also participate in policy and decision-
making processes affecting their rights and benefits as
may be provided by law.
As may be provided by laws. If you enjoy security of
tenure, it doesn’t mean that you can’t be removed
from service. But you could only be removed through
cause that is provided by law.
How do you remove a confidential employee? What
is the cause? The rights of laborers, the constitution
did not distinguish between public and private
employment, therefore it applies to all.
CASES:
CSC vs. Magnaye, G.R. No. 183337 (2010): Our
Constitution, in using the expressions “all workers” and
“no officer or employee,” puts no distinction between a
probationary and a permanent or regular employee which
means that both probationary and permanent employees
enjoy security of tenure. Probationary employees enjoy
security of tenure in the sense that during their
probationary employment, they cannot be dismissed
except for cause or for failure to qualify as regular
employees.
BOCEA vs. Teves, G.R. No. 181704 (2011): The
guarantee of security of tenure only means that an
employee cannot be dismissed from the service for
causes other than those provided by law and only after
due process is accorded the employee. Clearly, RA [No.]
9335 in no way violates the security of tenure of officials
and employees of the BIR and the BOC. In the case of
RA [No.] 9335, it lays down a reasonable yardstick for
removal (when the revenue collection falls short of the
target by at least 7.5%) with due consideration of all
relevant factors affecting the level of collection. This
standard is analogous to inefficiency and incompetence
in the performance of official duties, a ground for
disciplinary action under civil service laws. The action for
removal is also subject to civil service laws, rules and
regulations and compliance with substantive and
procedural due process.
Attrition Law. Reduction of workforce by applying certain
metrics. Constitutional. Though this law is never
implemented.
c. Compensation and other Pecuniary Benefits
38

Secs. 5, 8, Art. IX-B
SECTION 5. Art. IX-B: The Congress shall provide for the
standardization of compensation of government officials
and employees, including those in government-owned or
controlled corporations with original charters, taking into
account the nature of the responsibilities pertaining to,
and the qualifications required for their positions.
SECTION 8. Art. IX-B: No elective or appointive public
officer or employee shall receive additional, double, or
indirect compensation, unless specifically authorized by
law, nor accept without the consent of the Congress, any
present, emolument, office, or title of any kind from any
foreign government.
Pensions or gratuities shall not be considered as
additional, double, or indirect compensation.
Discussion: Compensation is set by law. If we need to
have a bargaining agreement, you can have that with your
public organization. You cannot still enjoy higher
compensation because it must be set by law.
Prohibited compensation: ADIC and reception of
emolument from a foreign government.
Additional [another office], double [twice compensated],
indirect [through another way, i.e. allowance]
compensation, Holding another office pero dumoble.
Indirect is through another way like getting an allowance.
CASES:
Cruz vs. Gangan, G.R. No. 143403 (2003): A
government employee who has not been proven to be
culpable or negligent should not be held accountable for
the loss of a cellular phone, which was stolen from her
while she was riding on the LRT.
DBP v. COA, G.R. No. 221706 (2018): The COA properly
held that the DBP Board members are not salaried
officials of the government, hence, they are not entitled to
benefits unless specifically provided by law. Again,
Section 8 of the DBP Chapter only mentions per diems as
the compensation of the Board Members; it does not
expressly provide the grant of other benefits to the said
members. DBM Circular Letter No. 2002-02 explains the
non-entitlement of the Board to benefits other than those
specifically provided by law, to wit:
2.0 To clarify and address issues/requests concerning the
same, the following compensation policies are hereby
reiterated:
2.1 PERA, ADCOM, YEB and retirement benefits are
personnel benefits granted in addition to salaries. As
fringe benefits, these shall be paid only when the basic
salary is also paid.
2.2 Members of the Board of Directors of agencies are not
salaried officials of the government. As non-salaried
officials, they are not entitled to PERA, ADCOM, YEB and
retirement benefits unless expressly provided by law. xxx.
(emphasis supplied)
Per diem, and other benefits by the BoD. BoD are not
entitled to other benefits especially expressly provided in
the law. So the ruling in this case is that the board of
directors are not entitled to other benefits, especially it is
expressly provided in the law that they are not required to
enjoy certain benefits so the law must be enforced.
d. Different and Applicable Leaves
e. Self-Organization
Sec. 8, Art. III; Sec. 3, 2nd pa., Art. XIII; Sec. 2(5), Art.
IX-B
Sec. 8, Art. III: The right of the people, including those
employed in the public and private sectors, to form
unions, associations, or societies for purposes not
contrary to law shall not be abridged.
Sec. 3, 2nd pa., Art. XIII: It shall guarantee the rights of
all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including
the right to strike in accordance with law. They shall be
entitled to security of tenure, humane conditions of work,
and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and
benefits as may be provided by law.
Sec. 2(5), Art. IX-B: The right to self-organization shall
not be denied to government employees.
Discussion: Public employees may organize. The right
of the people to form unions, societies not contrary to law.
Collective bargaining, right to strike according to the law
(all workers in constitution). Right to self-organization
shall not be denied to government employees.
CASES:
TUPAS vs. NHA, G.R. No. L-49677 (1989): For
employees in corporations and entities covered by the
Labor Code, the determination of the exclusive bargaining
representative is particularly governed by Articles 255 to
259 of said Code. Article 256 provides for the procedure
when there is a representation issue in organized
establishments, while Article 257 covers unorganized
establishments. These Labor Code provisions are fleshed
out by Rules V to VII, Book V of the Omnibus
Implementing Rules. The civil service now covers only
GOCC with original or legislative charters, that is those
created by an act of Congress or by special law, and not
those incorporated under and pursuant to a general
legislation.
CSC embraces only GOCCs with General Charters not
through the Corporation Code. If Corporation is created
through Corporation Code, covered by Labor Code.
39
SSSEA vs. CA, G.R. No. 85279 (1989): Art. IX (B), Sec.
2(5 ) of the Constitution, allowing for the right to self-
organization to government employees, do not include the
right to strike. While the constitution and statutes were
silent, as to whether or not government employees had
the right to strike (at the time the disputes arose), the
Court, nevertheless, held that the employees of the SSS
do not have the right to strike. The Court asserts that,
unlike private-sector employees, the terms and conditions
of employment of government employees are fixed by
law, as imposed by the legislature and the administrative
heads. In fact, right after the instant dispute arose, Sec.
4, Rule III of the Rules and Regulations to Govern the
Exercise of the Right of Government Employees to Self-
organization has now expressly ruled out the right of
government employees to strike for the purpose of
securing changes. Thus, the SSS employees do not have
the right to strike. The remedy for them as a union is to
petition to Congress the betterment of their terms and
conditions of employment.
“Right to strike. Government employees cannot exercise
the right to strike. There is no law that allows them to yet.
“As may be dealt with by law; As may be allowed by law.”
There is no Constitutional Prohibition regarding this right.”
Bangalisan, et al vs. CA, G.R. No. 124678 (1997): It is
the settled rule in this jurisdiction that employees in the
public service may not engage in strikes. While the
Constitution recognizes the right of government
employees to organize, they are prohibited from staging
strikes, demonstrations, mass leaves, walk-outs and
other forms of mass action which will result in temporary
stoppage or disruption of public services. The right of
government employees to organize is limited only to the
formation of unions or associations, without including the
right to strike.
Prohibited in engaging strike or performing strike because
there is no law which allows them.
GSIS vs. Kapisanan, G.R. No. 170132 (2006):
Employees in the public service may not engage in
strikes, mass leaves, walkouts, and other forms of mass
action that will lead in the temporary stoppage or
disruption of public service. The right of government
employees to organize is limited to the formation of unions
or associations only, without including the right to strike.
Public employees going on disruptive unauthorized
absences to join concerted mass actions may be held
liable for conduct prejudicial to the best interest of the
service.
“There is a limitation to the right of organization. Any
collective formed by government employees with intent of
service disruption or work stoppage in order for the
government to recognize the demand of the employees is
prohibited. If it causes disruption, albeit temporarily, it is
still prohibited. If it results in work stoppage, it's a strike.”
Davao City Water District vs. Aranjuez, G.R. No.
194192 (2015): Section 5. Definition of Prohibited
Concerted Mass Action. - As used in this Omnibus Rules,
the phrase ‘‘prohibited concerted activity or mass action’’
shall be understood to refer to any collective activity
undertaken by government employees, by themselves or
through their employees organizations, with the intent of
effecting work stoppage or service disruption in order to
realize their demands of force concession, economic or
otherwise, from their respective agencies or the
government. It shall include mass leaves, walkouts,
pickets and acts of similar nature.39 (Emphasis ours).
The operative phrases are "any collective activity" and
"work stoppage or service disruption." Without the intent
at work stoppage or service disruption, the concerted
activity is not prohibited. The time and place of the activity
are not determinative of the prohibition. Whether done
within government hours, a concerted activity is allowed if
it is without any intent at work stoppage.
“The concerted action was not prohibited. There was no
intent for work stoppage. The circumstances were not
determinative of the prohibition. Right to organization is
allowed as long as there is no work stoppage. Suffer to
work means forced to work”.
f. Retirement Pay
2. Duties
a. Hold Office as Public Trust
Sec. 1, Art. XI: 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.
b. Submit SALN
Sec. 17, Art. XI: A public officer or employee shall, upon
assumption of office and as often thereafter as may be
required by law, submit a declaration under oath of his
assets, liabilities, and net worth. In the case of the
President, the Vice-President, the Members of the
Cabinet, the Congress, the Supreme Court, the
Constitutional Commissions and other constitutional
offices, and officers of the armed forces with general or
flag rank, the declaration shall be disclosed to the public
in the manner provided by law.
Sec. 7, RA 3019: Statement of assets and liabilities.
Every public officer, within thirty days after the approval of
this Act or after assuming office, and within the month of
January of every other year thereafter, as well as upon
the expiration of his term of office, or upon his resignation
or separation from office, shall prepare and file with the
office of the corresponding Department Head, or in the
case of a Head of Department or chief of an independent
office, with the Office of the President, or in the case of
40
members of the Congress and the officials and
employees thereof, with the Office of the Secretary of the
corresponding House, a true detailed and sworn
statement of assets and liabilities, including a statement
of the amounts and sources of his income, the amounts
of his personal and family expenses and the amount of
income taxes paid for the next preceding calendar year:
Provided, That public officers assuming office less than
two months before the end of the calendar year, may file
their statements in the following months of January.
Sec. 8, RA 6713: Statements and Disclosure. - Public
officials and employees have an obligation to accomplish
and submit declarations under oath of, and the public has
the right to know, their assets, liabilities, net worth and
financial and business interests including those of their
spouses and of unmarried children under eighteen (18)
years of age living in their households.
A. Statements of Assets and Liabilities and Financial
Disclosure. - All public officials and employees, except
those who serve in an honorary capacity, laborers and
casual or temporary workers, shall file under oath their
Statement of Assets, Liabilities and Net Worth and a
Disclosure of Business Interests and Financial
Connections and those of their spouses and unmarried
children under eighteen (18) years of age living in their
households.
The two documents shall contain information on the
following:
a) real property, its improvements, acquisition costs,
assessed value and current fair market value;
b) personal property and acquisition cost;
c) all other assets such as investments, cash on hand or
in banks, stocks, bonds, and the like;
d) liabilities, and;
e) all business interests and financial connections.
The documents must be filed:
a) within thirty (30) days after assumption of office;
b) on or before April 30, of every year thereafter; and
c) within thirty (30) days after separation from the service.
All public officials and employees required under this
section to file the aforestated documents shall also
execute, within thirty (30) days from the date of their
assumption of office, the necessary authority in favor of
the Ombudsman to obtain from all appropriate
government agencies, including the Bureau of Internal
Revenue, such documents as may show their assets,
liabilities, net worth, and also their business interests and
financial connections in previous years, including, if
possible, the year when they first assumed any office in
the Government.
Husband and wife who are both public officials or
employees may file the required statements jointly or
separately.
The Statements of Assets, Liabilities and Net Worth and
the Disclosure of Business Interests and Financial
Connections shall be filed by:
1) Constitutional and national elective officials, with the
national office of the Ombudsman;
2) Senators and Congressmen, with the Secretaries of the
Senate and the House of Representatives, respectively;
Justices, with the Clerk of Court of the Supreme Court;
Judges, with the Court Administrator; and all national
executive officials with the Office of the President.
3) Regional and local officials and employees, with the
Deputy Ombudsman in their respective regions;
4) Officers of the armed forces from the rank of colonel or
naval captain, with the Office of the President, and those
below said ranks, with the Deputy Ombudsman in their
respective regions; and
5) All other public officials and employees, defined in
Republic Act No. 3019, as amended, with the Civil Service
Commission.
C. Identification and disclosure of relatives. - It shall be
the duty of every public official or employee to identify and
disclose, to the best of his knowledge and information, his
relatives in the Government in the form, manner and
frequency prescribed by the Civil Service Commission.
D. Accessibility of documents. -
1) Any and all statements filed under this Act, shall be
made available for inspection at reasonable hours.
2) Such statements shall be made available for copying
or reproduction after ten (10) working days from the time
they are filed as required by law.
3) Any person requesting a copy of a statement shall be
required to pay a reasonable fee to cover the cost of
reproduction and mailing of such statement, as well as the
cost of certification.
4) Any statement filed under this Act shall be available to
the public for a period of ten (10) years after receipt of the
statement. After such period, the statement may be
destroyed unless needed in an ongoing investigation.
E. Prohibited acts. - It shall be unlawful for any person to
obtain or use any statement filed under this Act for:
a) any purpose contrary to morals or public policy; or
b) any commercial purpose other than by news and
communications media for dissemination to the general
public.
CASES:
In re: SB AJ Jurado, A.M. OCA IPI No. 10-21-SB-J
(2017): In completing the SALN, particularly the portion
requiring the declaration of real properties, it is
compulsory for the declarant to disclose the kind, location,
year, and mode of acquisition, the assessed value,
current fair market value and the acquisition cost ·of the
property including the improvements thereon. Atty.
Buencamino candidly admitted the ownership of the real
properties listed by the OCA and these properties were
declared in all her SALNs. Though the properties were not
listed in detail, the same was not a violation of the rule as
the old SALN form merely required a general statement
of the assets, liabilities and net worth of the declarant.
41
Daplas v. DOF, G.R. No. 221153 (2017): By mandate of
law, i.e., RA 6713, it behooves every government official
or employee to accomplish and submit a sworn statement
completely disclosing his or her assets, liabilities, net
worth, and financial and business interests, including
those of his/her spouse and unmarried children under
eighteen (18) years of age living in their households, in
order to suppress any questionable accumulation of
wealth because the latter usually results from
nondisclosure of such matters.
Dishonesty is committed when an individual intentionally
makes a false statement of any material fact, practices or
attempts to practice any deception or fraud in order to
secure his examination, registration, appointment, or
promotion. It is understood to imply the disposition to lie,
cheat, deceive, betray or defraud; untrustworthiness; lack
of integrity; lack of honesty, probity or integrity in principle;
and the lack of fairness and straightforwardness.
On the other hand, misconduct is intentional wrongdoing
or deliberate violation of a rule of law or standard of
behavior. 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 an established rule
must be manifest. Without any of these elements, the
transgression of an established rule is properly
characterized as simple misconduct only. Most
importantly, without a nexus between the act complained
of and the discharge of duty, the charge of grave
misconduct shall necessarily fail.
Dishonesty requires malicious intent to conceal the truth
or to make false statements. In addition, a public officer
or employee becomes susceptible to dishonesty only
when such non-declaration results in the accumulated
wealth becoming manifestly disproportionate to his/her
income, and income from other sources, and he/she fails
to properly account or explain these sources of income
and acquisitions.
Indeed, the failure to file a truthful SALN puts in doubt the
integrity of the public officer or employee, and would
normally amount to dishonesty. It should be emphasized,
however, that mere non-declaration of the required data
in the SALN does not automatically amount to such an
offense.
Iglesias vs. Ombudsman, G.R. No. 180745 (2017): A
public officer or employee shall, upon assumption of office
and as often thereafter as may be required by law, submit
a declaration under oath of his assets, liabilities, and net
worth. In the case of the President, the Vice-President,
the Members of the Cabinet, the Congress, the Supreme
Court, the Constitutional Commissions and other
constitutional offices, and officers of the armed forces with
general or flag rank, the declaration shall be disclosed to
the public in the manner provided by law.
Substantial Compliance Principle: In good faith, there
must be substantial compliance when one fills up the
SALN. If real property, relay what is actually written from
the document to the SALN. i.e. bank accounts to SALN.
Understatement is prohibited. Question: If overstatement,
would a government employee be punished? If the SALN
was exaggerated? Yes, the respect of the law should be
upheld.
c. Owe Allegiance to the State and the Constitution
Sec. 4, Art. IX-B: All public officers and employees shall
take an oath or affirmation to uphold and defend this
Constitution.
Discussion: Tenure, the actual stay in the office
exercised by the officer. Term, the time stated an officer
should hold the office by law.
Sec. 18, Art. XI: Public officers and employees owe the
State and this Constitution allegiance at all times, and any
public officer or employee who seeks to change his
citizenship or acquire the status of an immigrant of
another country during his tenure shall be dealt with by
law.
d. Other Duties
Sec. 13, Art. VII: The President, Vice-President, the
Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure.
They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business,
or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government
or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity
within the fourth civil degree of the President shall not
during his tenure be appointed as members of the
Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their
subsidiaries.
Secs. 4, 5, 9, RA 6713
RA 6713 - Code of Conduct and Ethical Standards for
Public Officials and Employees.
Section 4. Norms of Conduct of Public Officials and
Employees. -
42
A. Every public official and employee shall observe the
following as standards of personal conduct in the
discharge and execution of official duties:
a) Commitment to public interest. - Public officials and
employees shall always uphold the public interest over
and above personal interest. All government resources
and powers of their respective offices must be employed
and used efficiently, effectively, honestly and
economically, particularly to avoid wastage in public funds
and revenues.
b) Professionalism. - Public officials and employees shall
perform and discharge their duties with the highest
degree of excellence, professionalism, intelligence and
skill. They shall enter public service with utmost devotion
and dedication to duty. They shall endeavor to discourage
wrong perceptions of their roles as dispensers or peddlers
of undue patronage.
c) Justness and sincerity. - Public officials and employees
shall remain true to the people at all times. They must act
with justness and sincerity and shall not discriminate
against anyone, especially the poor and the
underprivileged. They shall at all times respect the rights
of others, and shall refrain from doing acts contrary to law,
good morals, good customs, public policy, public order,
public safety and public interest. They shall not dispense
or extend undue favors on account of their office to their
relatives whether by consanguinity or affinity except with
respect to appointments of such relatives to positions
considered strictly confidential or as members of their
personal staff whose terms are coterminous with theirs.
d) Political neutrality. - Public officials and employees
shall provide service to everyone without unfair
discrimination and regardless of party affiliation or
preference.
e) Responsiveness to the public. - Public officials and
employees shall extend prompt, courteous, and adequate
service to the public. Unless otherwise provided by law or
when required by the public interest, public officials and
employees shall provide information of their policies and
procedures in clear and understandable language,
ensure openness of information, public consultations and
hearings whenever appropriate, encourage suggestions,
simplify and systematize policy, rules and procedures,
avoid red tape and develop an understanding and
appreciation of the socio-economic conditions prevailing
in the country, especially in the depressed rural and urban
areas.
f) Nationalism and patriotism. - Public officials and
employees shall at all times be loyal to the Republic and
to the Filipino people, promote the use of locally produced
goods, resources and technology and encourage
appreciation and pride of country and people. They shall
endeavor to maintain and defend Philippine sovereignty
against foreign intrusion.
g) Commitment to democracy. - Public officials and
employees shall commit themselves to the democratic
way of life and values, maintain the principle of public
accountability, and manifest by deeds the supremacy of
civilian authority over the military. They shall at all times
uphold the Constitution and put loyalty to country above
loyalty to persons or party.
h) Simple living. - Public officials and employees and their
families shall lead modest lives appropriate to their
positions and income. They shall not indulge in
extravagant or ostentatious display of wealth in any form.
B. The Civil Service Commission shall adopt positive
measures to promote (1) observance of these standards
including the dissemination of information programs and
workshops authorizing merit increases beyond regular
progression steps, to a limited number of employees
recognized by their office colleagues to be outstanding in
their observance of ethical standards; and (2) continuing
research and experimentation on measures which
provide positive motivation to public officials and
employees in raising the general level of observance of
these standards.
Section 5. Duties of Public Officials and Employees. -
In the performance of their duties, all public officials and
employees are under obligation to:
a) Act promptly on letters and requests. - All public
officials and employees shall, within fifteen (15) working
days from receipt thereof, respond to letters, telegrams or
other means of communications sent by the public. The
reply must contain the action taken on the request.
b) Submit annual performance reports. - All heads or
other responsible officers of offices and agencies of the
government and of government-owned or controlled
corporations shall, within forty-five (45) working days from
the end of the year, render a performance report of the
agency or office or corporation concerned. Such report
shall be open and available to the public within regular
office hours.
c) Process documents and papers expeditiously. - All
official papers and documents must be processed and
completed within a reasonable time from the preparation
thereof and must contain, as far as practicable, not more
than three (3) signatories therein. In the absence of duly
authorized signatories, the official next-in-rank or officer
in charge shall sign for and in their behalf.
d) Act immediately on the public's personal transactions.
- All public officials and employees must attend to anyone
who wants to avail himself of the services of their offices
and must, at all times, act promptly and expeditiously.
e) Make documents accessible to the public. - All public
documents must be made accessible to, and readily
available for inspection by, the public within reasonable
working hours.
Section 9. Divestment. - A public official or employee
shall avoid conflicts of interest at all times. When a conflict
of interest arises, he shall resign from his position in any
private business enterprise within thirty (30) days from his
assumption of office and/or divest himself of his
shareholdings or interest within sixty (60) days from such
assumption.
The same rule shall apply where the public official or
employee is a partner in a partnership.
43
The requirement of divestment shall not apply to those
who serve the Government in an honorary capacity nor to
laborers and casual or temporary workers.
F. Prohibitions
1. Additional, Double, Indirect Compensation
Sec. 8, Art. IX-B: No elective or appointive public officer
or employee shall receive additional, double, or indirect
compensation, unless specifically authorized by law, nor
accept without the consent of the Congress, any present,
emolument, office, or title of any kind from any foreign
government.
CASES:
Dela Cruz vs. COA, G.R. No. 138489 (2001): The
members of the Board of Directors was increased from 8
to 13, specifying therein that it is the undersecretaries of
the different Departments who should sit as board
members of the PEZA. The option of designating his
representative to the Board by the different Cabinet
Secretaries was deleted. Likewise, the last paragraph as
to the payment of per diems to the members of the Board
of Directors was also deleted, considering that such
stipulation was clearly in conflict with the proscription set
by the Constitution. Prescinding from the above, the
petitioner is, indeed, not entitled to receive a per diem for
his attendance at board meetings during his tenure as
member of the Board of Directors of the PEZA
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. It should be obvious that if, say, the Secretary of
Finance attends a meeting of the Monetary Board as an
ex-officio member thereof, he is actually and in legal
contemplation performing the primary function of his
principal office in defining policy in monetary and banking
matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not
entitled to collect any extra compensation, whether it be
in the form of a per diem or an honorarium or an
allowance, or some other such euphemism. By whatever
name it is designated, such additional compensation is
prohibited by the Constitution.
Posadas vs. Sandiganbayan, supra: Section 7, Article
IX-B of the 1987 Constitution provides 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 corporations or their
subsidiaries.
The prohibition on dual employment and double
compensation is further specified under Sections 1 and 2,
Rule XVIII of the Omnibus Rules Implementing BOOK V
of E.O. No. 292 as follows:
Sec. 1. No appointive official shall hold any other office or
employment in the Government or any subdivision,
agency or instrumentality thereof, including government-
owned or corporations with original charters or their
subsidiaries, unless otherwise allowed by law or by the
primary functions of his position.
Section 2. No elective or appointive public officer or
employee shall receive additional, double, or indirect
compensation, unless authorized by law.
Santos vs. CA, G.R. No. 139792 (2000): Chavez, Sr. vs.
Mathay: "The ‘common-sense consideration’ is that if a
retiree is being credited with his years of service under his
first retirement in computing his gratuity under his second
retirement, it is but just that the retirement gratuity
received by him under his first retirement should also be
charged to his account.
Anciano v. Otadoy: Claims for double retirement or
pension ‘would run roughshod over the well-settled rule
that in the absence of an express legal exception, pension
and gratuity laws should be so construed as to preclude
any person from receiving double pension.’
“Computation of salary regarding transfer from one
government office to another. Sec. 8. Pensions are not
ADIC. Retirement pay is not double salary while receiving
salary. [i.e. Congressman nag retire. Inappoint ng
Cabinet.] On the other hand, years of service as a judge
is included as years of mmda then that is double
compensation. [i.e. Congressman nag retire. Nagretire
nadin sa Cabinet.]”
National Transmission Corporation vs. COA, G.R. No.
204800 (2014): It is undisputed that TransCo is a GOCC
as it was created by virtue of the EPIRA. As such, it was
bound by civil service laws. Section 63 of the EPIRA
provides for the separation benefits to be awarded to
officials and employees displaced by the restructuring
electricity industry and privatization of NPC assets. It is
clear that based on the EPIRA and its IRR that all
employees of TransCo are entitled to separation benefits,
with an additional requirement imposed on casual or
contractual employees - their appointments must have
been approved or attested by the CSC.
“Government Service because NaTransCo was created
via special charter, hence governed by Civil Service
Rules. Contractual employees may enjoy retirement
benefits, but their appointment must be attested to by the
Civil Service Commission. This is necessary because in
this case, her appointment was not attested hence no
retirement benefits.”
Maritime Industry Authority vs. COA, G.R. No. 185812
(2015): Republic Act No. 6758 deems all allowances and
benefits received by government officials and employees
as incorporated in the standardized salary, unless
44
excluded by law or an issuance by the Department of
Budget and Management.
Ocampo vs. COA, G.R. No. 188716 (2013): Double
Compensation; Claims for double retirement benefits fall
under the prohibition against the receipt of double
compensation when they are based on exactly the same
services and on the same creditable period. Section 1 of
Republic Act No. 1568 grants two (2) types of retirement
benefits to a qualified retiree, i.e., a gratuity or a lump sum
payment and an annuity or monthly pension, viz.: Section
1. When the Auditor General or the Chairman or any
Member of the Commission on Elections retires from the
service for having completed his term or office or by
reason of his incapacity to discharge the duties of his
office, or dies while in the service, or resigns at any time
after reaching the age of sixty years but before the
expiration of this term of office, he or his heirs shall be
paid in lump sum his salary for one year, not exceeding
five years, for every year of service based upon the last
annual salary that he was receiving at the time of
retirement, incapacity, death or resignation, as the case
may be: Provided, That in case of resignation, he has
rendered not less than twenty years of service in the
government; And, provided, further, That he shall receive
an annuity payable monthly during the residue of his
natural life equivalent to the amount of monthly salary he
was receiving on the date of retirement, incapacity or
resignation. (Emphasis supplied). Applying the above
provision, We discern that Ocampo may recover one
gratuity in an amount equivalent to her last annual salary
multiplied by her actual years of service in the ERB but
not to exceed five (5) years. In addition, Ocampo is
entitled to receive only one annuity equivalent to the
amount of her last monthly salary.
While Ocampo is entitled to receive only one set of
retirement benefits under Republic Act No. 1568, as
amended, despite her two (2) retirements, We believe that
her subsequent stint as Chairman of the ERB and her
consequent second retirement necessitated an
adjustment of the retirement benefits she is entitled to
under the law. This is because Republic Act No. 1568, as
amended, reckons the amount of gratuity on the retiree’s
last annual salary and actual years of service not
exceeding five (5) years, and it bases the amount of
annuity on the retiree’s last monthly salary. Hence, for
purposes of computing her gratuity, Ocampo’s last annual
salary shall be that which she was receiving at the time of
her second retirement and her actual years of service
shall be the sum of her years of service both as ERB
member and chairman, but not to exceed five (5) years.
On the other hand, for purposes of computing her annuity,
Ocampo’s last monthly salary shall be that which she was
receiving monthly as of the date of her second retirement
“There are offices which enjoy fiscal autonomy. CFAG
group. These enjoy additional bonuses.
Q: Under Salary Standardization Law, Sante enjoys up to
18 months’ pay without any guidelines. Congress is
invoking fiscal autonomy. DBM says the budget is just like
this. HoR says no. This is not income or compensation;
this is sourced from maintenance and other operating
expenses. Is Senate President Correct? Is there an ADIC
violation?
A: There is an ADIC violation.
Q: What about the invocation of compensation and not
expense?
A: Regardless of what it is called, but the nature of it looks
like compensation then it is ADIC.
Compensation is income. Flow-in. Thus, it must be
taxed.”
2. Electioneering or Partisan Political
Campaign/Activity
Sec. 2(4), Art. IX-B; Sec. 5 (3), Art. XVI
Sec. 2(4), Art. IX-B: No officer or employee in the civil
service shall engage, directly or indirectly, in any
electioneering or partisan political campaign.
Sec. 5 (3), Art. XVI: Professionalism in the armed forces
and adequate remuneration and benefits of its members
shall be a prime concern of the State. The armed forces
shall be insulated from partisan politics.
No member of the military shall engage, directly or
indirectly, in any partisan political activity, except to vote.
Sec. 4, Art. III: No law shall be passed abridging the
freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the
government for redress of grievances.
Discussion: Public officers’ exercises influence over
their subordinates or over the public. Favors. Why can’t
public officers’ campaign for politicians? You are using
your office, your prerogatives, your time, your resources
for politicians. You have to be fair, and partisanship is not
fair.
CASES:
Luzuriaga vs. Valenciano, G.R. No. 185559 (2017): No
less than the Constitution prohibits such officers and
employees in the civil service in engaging in partisan
political activity, to wit:
Section 2(4). No officer or employee in the civil service
shall engage, directly or indirectly, in any electioneering
or partisan political campaign.
Correspondingly, the Revised Administrative Code of
1987, in its provisions on the Civil Service, provides:
SEC. 55. Political Activity.—No officer or employee in
the Civil Service including members of the Armed Forces,
shall engage directly or indirectly in any partisan political
activity or take part in any election except to vote nor shall
he use his official authority or influence to coerce the
political activity of any other person or body. Nothing
herein provided shall be understood to prevent any officer
45
or employee from expressing his views on current political
problems or issues, or from mentioning the names of
candidates for public office whom he supports: Provided,
That public officers and employees holding political
offices may take part in political and electoral activities but
it shall be unlawful for them to solicit contributions from
their subordinates or subject them to any of the acts
involving subordinates prohibited in the Election Code.
3. Financial Accommodations to Certain Public
Officers
Sec. 16, Art. XI: No loan, guaranty, or other form of
financial accommodation for any business purpose may
be granted, directly or indirectly, by any government-
owned or controlled bank or financial institution to the
President, the Vice-President, the Members of the
Cabinet, the Congress, the Supreme Court, and the
Constitutional Commissions, the Ombudsman, or to any
firm or entity in which they have controlling interest, during
their tenure.
4. Practice of Profession
Sec. 13, 1st pa., Art. VII: The President, Vice-President,
the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during
their tenure. They shall not, during said tenure, directly or
indirectly, practice any other profession, participate in any
business, or be financially interested in any contract with,
or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or
instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall
strictly avoid conflict of interest in the conduct of their
office.
The spouse and relatives by consanguinity or affinity
within the fourth civil degree of the President shall not,
during his tenure, be appointed as Members of the
Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their
subsidiaries.
Sec. 2, Art. IX-A: No member of a Constitutional
Commission shall, during his tenure, hold any other office
or employment. Neither shall he engage in the practice of
any profession or in the active management or control of
any business which, in any way, may be affected by the
functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in
any franchise or privilege granted by the Government, any
of its subdivisions, agencies, or instrumentalities,
including government-owned or controlled corporations or
their subsidiaries.
Sec. 90, LGC: Practice of Profession. –
a) All governors, city and municipal mayors are prohibited
from practicing their profession or engaging in any
occupation other than the exercise of their functions as
local chief executives.
b) Sanggunian members may practice their professions,
engage in any occupation, or teach in schools except
during session hours: Provided, That sanggunian
members who are also members of the Bar shall not:
1) Appear as counsel before any court in any civil case
wherein a local government unit or any office, agency, or
instrumentality of the government is the adverse party;
2) Appear as counsel in any criminal case wherein an
officer or employee of the national or local government is
accused of an offense committed in relation to his office.
3) Collect any fee for their appearance in administrative
proceedings involving the local government unit of which
he is an official; and
4) Use property and personnel of the government except
when the sanggunian member concerned is defending
the interest of the government.
c) Doctors of medicine may practice their profession even
during official hours of work only on occasions of
emergency: Provided, That the officials concerned do not
derive monetary compensation therefrom.
5. Nepotism
Sec. 13, 2nd. pa., Art. VI: No Senator or Member of the
House of Representatives may hold any other office or
employment in the Government, or any subdivision,
agency, or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries,
during his term without forfeiting his seat. Neither shall he
be appointed to any office which may have been created
or the emoluments thereof increased during the term for
which he was elected.
Sec. 59, Book V, LGC. Nepotism:
1) All appointments in the national, provincial, city and
municipal governments or in any branch or instrumentality
thereof, including government-owned or controlled
corporations, made in favor of a relative of the appointing
or recommending authority, or of the chief of the bureau
or office, or of the persons exercising immediate
supervision over him, are hereby prohibited.
As used in this Section the word "relative" and members
of the family referred to are those related within the third
degree either of consanguinity or of affinity.
2) The following are exempted from the operation of the
rules on nepotism:
(a) persons employed in a confidential capacity, (b)
teachers, (c) physicians, and (d) members of the Armed
Forces of the Philippines:
Provided, however, That in each particular instance full
report of such appointment shall be made to the
Commission.
The restriction mentioned in subsection (1) shall not be
applicable to the case of a member of any family who,
after his or her appointment to any position in an office or
bureau, contracts marriage with someone in the same
office or bureau, in which event the employmentor
retention therein of both husband and wife may be
allowed.
46

3) In order to give immediate effect to these provisions,
cases of previous appointment which are in contravention
hereof shall be corrected by transfer and pending such
transfer, no promotion or salary increase shall be allowed
in favor of the relative or relatives who were appointed in
violation of these provisions. (Emphasis supplied).
Sec. 79, LGC: Limitation on Appointments. – No
person shall be appointed in the career service of the local
government if he is related within the fourth civil degree of
consanguinity or affinity to the appointing or
recommending authority.
CASES:
Debulgado vs. CSC, 237 SCRA 184 (1994): Both an
original appointment and a promotion are particular
species of personnel action. The original appointment of
a civil service employee and all subsequent personnel
actions undertaken by or in respect of that employee such
as promotion, transfer, reinstatement, reemployment,
etc., must comply with the Implementing Rules including,
of course, the prohibition against nepotism in Rule XVIII.
To the extent that all personnel actions occurring after an
original appointment, require the issuance of a new
appointment to another position (or to the original position
in case of reinstatement), we believe that such
appointment must comply with all applicable rules and
prohibitions, including the statutory and regulatory
prohibition against nepotism.
“Wife was already in the office when Husband became
Mayor. Nepotism still applies. Prohibition on appointment
also refers to vertical appointment.”
CSC vs. Cortes, G.R. No. 200103 (2014): Nepotism is
defined as an appointment issued in favor of a relative
within the third civil degree of consanguinity or affinity of
any of the following: (1) appointing authority; (2)
recommending authority; (3) chief of the bureau or office;
and (4) person exercising immediate supervision over the
appointee.
Exception, the following shall not be covered by the
prohibition: (1) persons employed in a confidential
capacity; (2) teachers; (3) physicians; and (4) members of
the Armed Forces of the Philippines.
“Appointment by board. A relative is part of the board. Still
nepotic.”
CSC vs. Tinaya, G.R. NO. 154898 (2005): Section 59,
Chapter 8 of the Civil Service Law, which provides:
"SEC. 59. Nepotism. – (1) All appointments in the
national, provincial, city and municipal governments or in
any branch or instrumentality thereof, including
government-owned or controlled corporations, made in
favor of a relative of the appointing or recommending
authority, or of the chief of the bureau or office, or of the
persons exercising immediate supervision over him, are
hereby prohibited.
“Extent of the prohibition. Up to what degree.
● Other National appointees Third degree.
● Sec. 79 LGC Local. Fourth degree.
● Sec. 13, Art. 7. Presidential appointment. Fourth
degree.”
Q: A & B were annulled. May A appoint B?
A: Yes, no vinculum juris. Pero technically no.
Q: A & B were married. May B appoint the stepson of A?
A: Yes, liberal interpretation. Not in anyway related. [Is
the step son related by affinity? Consider
affinity/consanguinity]
Q: A is the mayor. Son-in-law is in the public service, city
hall. A took a very long medical absence. May the acting
Mayor appoint Son-in-law?
A: No.
6. Detail or Reassignment During the Campaign
Period
Sec. 58, Book V, Administrative Code
SECTION 58. Prohibition on Detail or
Reassignment.—No detail or reassignment whatever
shall be made within three (3) months before any election.
Discussion: “During election season. 45 days before
election proper. Employees cannot be moved. Movement
from one office to another is prohibited.”
CASES:
People vs. Reyes, G.R. No. 115022 (1995): It ought to
be immediately obvious that Section 261 (h) of B.P. Blg.
881 does not per se outlaw the transfer of a government
officer or employee during the election period. To be sure,
the transfer or detail of a public officer or employee is a
prerogative of the appointing authority. It is necessary to
meet the exigencies of public service sometimes too
difficult to perceive and predict. Without this inherent
prerogative, the appointing authority may not be able to
cope with emergencies to the detriment of public service.
Clearly then, the transfer or detail of government officer
or employee will not be penalized by Section 261 (h) of
B.P. Blg. 881 if done to promote efficiency in the
government service. Hence, Section 2 of Resolution No.
2333 provides that the COMELEC has to pass upon the
reason for the proposed transfer or detail, viz: "Any
request for authority to make or cause any transfer or
detail of any officer or employee in the civil service,
including public school teachers, shall be submitted in
writing to the Commission indicating therein the office and
place to which the officer or employee is proposed to be
transferred or detailed, and stating the reason therefor.
Two (2) elements must be established to prove a violation
of Section 261 (h) of B.P. Blg. 881, viz:
(1) The fact of transfer or detail of a public officer or
employee within the election period as fixed by the
47
COMELEC, and
(2) the transfer or detail was effected without prior
approval of the COMELEC in accordance with its
implementing rules and regulations.
“The transfer or detail of a public officer or employee is a
prerogative of the appointing authority. The transfer or
detail of a government officer or employee will not be
penalized by Section 261 (h) of B.P. Blg. 881 if done to
promote efficiency in the government service. Hence,
Section 2 of Resolution No. 2333 provides that the
COMELEC has to pass upon the reason for the proposed
transfer or detail.”
7. Intervention of Relatives
Sec. 5, RA 3019: Anti-Graft and Corrupt Practices Act:
Prohibition on certain relatives. It shall be unlawful for the
spouse or for any relative, by consanguinity or affinity,
within the third civil degree, of the President of the
Philippines, the Vice-President of the Philippines, the
President of the Senate, or the Speaker of the House of
Representatives, to intervene, directly or indirectly, in any
business, transaction, contract or application with the
Government:
Provided, That this section shall not apply to any person
who, prior to the assumption of office of any of the above
officials to whom he is related, has been already dealing
with the Government along the same line of business, nor
to any transaction, contract or application already existing
or pending at the time of such assumption of public office,
nor to any application filed by him the approval of which
is not discretionary on the part of the official or officials
concerned but depends upon compliance with requisites
provided by law, or rules or regulations issued pursuant
to law, nor to any act lawfully performed in an official
capacity or in the exercise of a profession.
8. Other Prohibited Acts and Transactions
Sec. 7, RA 6713: Code of Conduct and Ethical
Standards for Public Officials and Employees
Section 7. Prohibited Acts and Transactions. - In
addition to acts and omissions of public officials and
employees now prescibed in the Constitution and existing
laws, the following shall constitute prohibited acts and
transactions of any public official and employee and are
hereby declared to be unlawful:
a) Financial and material interest. - Public officials and
employees shall not, directly or indirectly, have any
financial or material interest in any transaction requiring
the approval of their office.
b) Outside employment and other activities related
thereto. - Public officials and employees during their
incumbency shall not:
1) Own, control, manage or accept employment as officer,
employee, consultant, counsel, broker, agent, trustee or
nominee in any private enterprise regulated, supervised
or licensed by their office unless expressly allowed by law;
2) Engage in the private practice of their profession unless
authorized by the Constitution or law, provided, that such
practice will not conflict or tend to conflict with their official
functions; or
3) Recommend any person to any position in a private
enterprise which has a regular or pending official
transaction with their office.
These prohibitions shall continue to apply for a period of
one (1) year after resignation, retirement, or separation
from public office, except in the case of subparagraph (b)
(2) above, but the professional concerned cannot practice
his profession in connection with any matter before the
office he used to be with, in which case the one-year
prohibition shall likewise apply.
c) Disclosure and/or misuse of confidential information. -
Public officials and employees shall not use or divulge,
confidential or classified information officially known to
them by reason of their office and not made available to
the public, either:
1. To further their private interests, or give undue
advantage to anyone; or
2. To prejudice the public interest.
d) Solicitation or acceptance of gifts. - Public officials and
employees shall not solicit or accept, directly or indirectly,
any gift, gratuity, favor, entertainment, loan or anything of
monetary value from any person in the course of their
official duties or in connection with any operation being
regulated by, or any transaction which may be affected by
the functions of their office.
As to gifts or grants from foreign governments, the
Congress consents to:
i. The acceptance and retention by a public official or
employee of a gift of nominal value tendered and received
as a souvenir or mark of courtesy;
ii. The acceptance by a public official or employee of a
gift in the nature of a scholarship or fellowship grant or
medical treatment; or
iii. The acceptance by a public official or employee of
travel grants or expenses for travel taking place entirely
outside the Philippine (such as allowances,
transportation, food, and lodging) of more than nominal
value if such acceptance is appropriate or consistent with
the interests of the Philippines, and permitted by the head
of office, branch or agency to which he belongs.
The Ombudsman shall prescribe such regulations as may
be necessary to carry out the purpose of this subsection,
including pertinent reporting and disclosure requirements.
Nothing in this Act shall be construed to restrict or prohibit
any educational, scientific or cultural exchange programs
subject to national security requirements.
PD 46: MAKING IT PUNISHABLE FOR PUBLIC
OFFICIALS AND EMPLOYEES TO RECEIVE, AND
FOR PRIVATE PERSONS TO GIVE, GIFTS ON ANY
OCCASION, INCLUDING CHRISTMAS
WHEREAS, under existing laws and the civil service
rules, it is prohibited to receive, directly or indirectly, any
48
gift, present or any other form of benefit in the course of
official duties;
WHEREAS, it is believed necessary to put more teeth to
existing laws and regulations to wipe out all conceivable
forms of graft and corruption in the public service, the
members of which should not only be honest but above
suspicion and reproach; and
WHEREAS, the stoppage of the practice of gift-giving to
government men is a concrete step in the administration's
program of reforms for the development of new moral
values in the social structure of the country, one of the
main objectives of the New Society;
NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers
vested in me by the Constitution as Commander-in-Chief
of all the Armed Forces of the Philippines, and pursuant
to Proclamation No. 1081 dated September 21, 1972, and
General Order No. 1 dated September 22, 1972, do
hereby make it punishable for any public official or
employee, whether of the national or local governments,
to receive, directly or indirectly, and for private persons to
give, or offer to give, any gift, present or other valuable
thing to any occasion, including Christmas, when such
gift, present or other valuable thing is given by reason of
his official position, regardless of whether or not the same
is for past favor or favors or the giver hopes or expects to
receive a favor or better treatment in the future from the
public official or employee concerned in the discharge of
his official functions. Included within the prohibition is the
throwing of parties or entertainments in honor of the
official or employees or his immediate relatives.
For violation of this Decree, the penalty of imprisonment
for not less than one (1) year nor more than five (5) years
and perpetual disqualification from public office shall be
imposed. The official or employee concerned shall
likewise be subject to administrative disciplinary action
and, if found guilty, shall be meted out the penalty of
suspension or removal, depending on the seriousness of
the offense.
Sec. 14, RA 3019: Anti-Graft and Corrupt Practices
Act
Section 14. Exception. 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, shall be excepted from the provisions
of this Act.
Nothing in this Act shall be interpreted to prejudice or
prohibit the practice of any profession, lawful trade or
occupation by any private person or by any public officer
who under the law may legitimately practice his
profession, trade or occupation, during his incumbency,
except where the practice of such profession, trade or
occupation involves conspiracy with any other person or
public official to commit any of the violations penalized in
this Act.
9. On Members of Congress
Sec. 14, Art. VI: No Senator or Member of the House of
Representatives may personally appear as counsel
before any court of justice or before the Electoral
Tribunals, or quasi-judicial and other administrative
bodies.
Neither shall he, directly or indirectly, be interested
financially in any contract with, or in any franchise or
special privilege granted by the Government, or any
subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation, or its
subsidiary, during his term of office.
He shall not intervene in any matter before any office of
the Government for his pecuniary benefit or where he may
be called upon to act on account of his office.
Sec. 6, RA 3019: Anti-Graft and Corrupt Practices Act
Section 6. Prohibition on Members of Congress: It shall
be unlawful hereafter for any Member of the Congress
during the term for which he has been elected, to acquire
or receive any personal pecuniary interest in any specific
business enterprise which will be directly and particularly
favored or benefited by any law or resolution authored by
him previously approved or adopted by the Congress
during the same term.
The provision of this section shall apply to any other public
officer who recommended the initiation in Congress of the
enactment or adoption of any law or resolution, and
acquires or receives any such interest during his
incumbency.
It shall likewise be unlawful for such member of Congress
or other public officer, who, having such interest prior to
the approval of such law or resolution authored or
recommended by him, continues for thirty days after such
approval to retain such interest.
G. Immunities
Sec. 3, Art. XVI, Constitution: The State may not be
sued without its consent.
Discussion: (1) “A sovereign state and its political
subdivisions cannot be sued in the courts except upon the
statutory consent of the state. But the rule applies only
when the state or its subdivision is actually made a party
upon the record, or is actually necessary to be made a
party in order to furnish the relief demanded by the suit. It
does not apply when the suit is against an officer or
agent of the state, and the relief demanded by the suit
requires no affirmative official action on the part of
the state nor the affirmative discharge of any
obligation which belongs to the state in its political
capacity.
Thus it will be found, that nearly all the cases wherein the
rule of immunity from suit against the state, or subdivision
thereof, has been applied or upheld, are those which
49
demanded a money judgment, and wherein the
discharge, if obtained, would require the appropriation
or an expenditure therefrom, which being legislative in
its character is a province exclusively of the political
departments of the state.” Ruiz vs. Cabahug, G.R. No. L-
9990 (1957)
(2) While the doctrine of state immunity (the royal
prerogative of dishonesty) of appears to prohibit only suits
against the state without its consent, it is also applicable
to complaints filed against officials of the state for acts
allegedly performed by them in the discharge of their
duties. The rule is that if the judgment against such
officials will require the state itself to perform an
affirmative act to satisfy the same, such as
appropriation of the amount needed to pay the
damages awarded against them, the suit must be
regarded as against the state itself although it has not
been formally impleaded. Wylie vs. Rarang, G.R. No.
74135 (1992)
(3) The consent of the state to be sued may be manifested
expressly or impliedly. Express consent may be
embodied in a general law or special law. Consent is
implied when a state enters into a contract it itself
commences litigation.
(4) Express consent is effected only by the will of the
legislature through the medium of a duly enacted statute.
Republic v. Purisima, 78 SCRA 470
(5) Not all contracts entered into by the government will
operate as a waiver of its non-suability; distinction must
be made between its sovereign and proprietary acts.
United States of America v. Ruiz, 136 SCRA 487
(6) State immunity applies only to acts jure imperii or
sovereign/governmental acts and not to acts jure
gestionis or proprietary acts.
Secs. 38, 39, Book I, Administrative Code
SECTION 38. Liability of Superior Officers.
(1) A public officer shall not be civilly liable for acts
done in the performance of his official duties,
unless there is a clear showing of bad faith, malice or
gross negligence.
(2) Any public officer who, without just cause, neglects to
perform a duty within a period fixed by law or
regulation, or within a reasonable period if none is
fixed, shall be liable for damages to the private party
concerned without prejudice to such other liability as
may be prescribed by law.
(3) A head of a department or a superior officer shall not
be civilly liable for the wrongful acts, omissions of
duty, negligence, or misfeasance of his subordinates,
unless he has actually authorized by written order the
specific act or misconduct complained of.
SECTION 39. Liability of Subordinate Officers. – No
subordinate officer shall be liable for acts done by him in
good faith in the performance of his duties. However, he
shall be liable for willful or negligent acts done by him
which are contrary to law, morals, public policy and good
customs even if he acted under orders or instructions of
his superiors.
State cannot be sued without its consent. State include its
agents and officers in the performance of their duties.
CASES:
Ruiz vs. Cabahug, G.R. No. L-9990 (1957): A sovereign
state and its political subdivisions cannot be sued in the
courts except upon the statutory consent of the state.
However, the rule applies only when the state or its
subdivisions is actually made a party upon the record, or
is actually necessary to be made a party in order to furnish
the relief demanded by the suit. It does not apply when
the suit is against an officer or agent of the state, and the
relief demanded by the suit requires no affirmative official
action on the part of the state nor affirmative discharge of
any obligation which belongs to the state in its political
capacity.
This is not a case against the government, but against a
public officer (the Secretary of National Defense) to
compel them to act in accordance with the rights to be
established by the contending architects, or to prevent
them from making payment and recognition until the
contending architects have established their respective
rights and interests in the funds retained and in the credit
for the work done.
Festejo vs. Fernando, G.R. No. L-5156 (1954): It is a
general rule that an officer-executive, administrative
quasi-judicial, ministerial, or otherwise who acts outside
the scope of his jurisdiction and without authorization of
law may thereby render himself amenable to personal
liability in a civil suit.
If he exceeds the power conferred on him by law, he
cannot shelter himself by the plea that he is a public agent
acting under the color of his office, and not personally. In
the eye of the law, his acts then are wholly without
authority.
The parcels of land that Fernando took was for his
personal gain not as Director for Public Works.
Wylie vs. Rarang, G.R. No. 74135 (1992):
The doctrine of state immunity is based on the justification
that "there can be no legal right against the authority
which makes the law on which the right depends." All
states are sovereign equals and cannot assert jurisdiction
over one another. A contrary disposition would, in the
language of a celebrated case, "unduly vex the peace of
nations."
It is also referred to as "the royal prerogative of
dishonesty" because of the privilege it grants the state to
50
defeat any legitimate claim against it by invoking its non-
suability. The doctrine is not absolute and does not say
the state may not be sued under any circumstance. The
rule says that the state may not be sued without its
consent, which clearly imports that it may be sued if it
consents. The consent of the state to be sued may be
manifested expressly or impliedly. Express consent may
be embodied in a general law or a special law. Consent is
implied when the state enters into a contract it itself
commences litigation.
Petitioners made a libelous publication about Auring
Rarang (Filipino) and they are not immune from the suit
because publications were performed in his own
prerogative not involving performance of his US Naval
Base duties.
Philippine Agila vs. Lichauco, G.R. No. 142362 (2006):
DOTC Secretary Lichauco uttered several disparaging
and defamatory remarks against petitioners and made
false assertions against them in her letter. If these
allegations were proven, they would establish liability on
the part of Lichauco that is not shielded by the doctrine of
State Immunity.
Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or
officers are not acts of the State from suits. An action at
law or suit in equity against a State officer or the director
of a State Department on the ground that, while claiming
to act for the State, he violates or invades the personal
and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority
which he does not have, is not a suit against the State
with its Constitutional provision that the State may not be
sued without its consent. The rationale for this ruling is
that the doctrine of state immunity cannot be used as an
instrument for perpetrating justice.
H. Accountability
1. The Ombudsman
a. Appointment; Independence
Secs. 5-6, Art. XI, Constitution
SECTION 5. There is hereby created the independent
Office of the Ombudsman, composed of the Ombudsman
to be known as Tanodbayan, one overall Deputy and at
least one Deputy each for Luzon, Visayas, and Mindanao.
A separate Deputy for the military establishment may
likewise be appointed.
SECTION 6. The officials and employees of the Office of
the Ombudsman, other than the Deputies, shall be
appointed by the Ombudsman according to the Civil
Service Law.
CASES:
Ifurung vs. Carpio-Morales, G.R. No. 232131 (2018):
The Constitution is clear that the term of the Ombudsman
and the Deputies shall be 7 years without reappointment
without distinction on the cause of filling the vacancy.
The Office of the Ombudsman is composed of the
Ombudsman to be known as Tanodbayan, the Overall
Deputy, the Deputy for Luzon, the Deputy for the Visayas,
the Deputy for Mindanao, the Deputy for the Military and
Other Law Enforcement Office (MOLEO), and the Special
Prosecutor, IS NOT A COLLEGIAL BODY. The
Ombudsman and the deputies do not resolve cases by a
majority of all its members but rather are confined within
the sphere of their respective jurisdiction.
Gonzales vs. OP, G.R. No. 196231- MR (2014): The
independence enjoyed by the Office of the Ombudsman
and by the Constitutional Commissions shares certain
characteristics – they do not owe their existence to any
act of Congress, but are created by the Constitution itself;
additionally, they all enjoy fiscal autonomy.
Subjecting the Deputy Ombudsman to discipline and
removal by the President, whose own alter egos and
officials in the Executive Department are subject to the
Ombudsman’s disciplinary authority, cannot but seriously
place at risk the independence of the Office of the
Ombudsman itself.
Morales vs. Carpio-Morales, G.R. No. 208086
(2016): The Court has always adhered to the general rule
upholding the “noninterference by the courts in the
exercise by the office of the prosecutor or the
Ombudsman of its plenary investigative and prosecutorial
powers.”
The Office of the Ombudsman is “empowered to
determine whether there exists reasonable ground to
believe that a crime has been committed and that the
accused is probably guilty thereof and, thereafter, to file
the corresponding information with the appropriate
courts.”
In its role as “protector of the people,” the Office of the
Ombudsman has the power and duty “to act promptly on
complaints filed in any form or manner against public
officials” and “to investigate any act or omission of any
public official when such act or omission appears to be
illegal, unjust, improper, or inefficient.”
If upon evaluation, finds that the case has no merit, it has
the power to recommend that the same be “dismissed
outright.” Likewise, it has the authority to determine if a
preliminary investigation is necessary in the case.
The Office of the Ombudsman is empowered to determine
if there exists probable cause or “whether there exists a
reasonable ground to believe that a crime has been
committed, and that the accused is probably guilty thereof
and, thereafter, to file the corresponding information with
the appropriate courts.”
This determination is done by means of a preliminary
investigation. However, “a preliminary investigation is by
no means mandatory.” The Office of the Ombudsman
51
“has full discretion to determine whether a criminal case
should be filed, including whether a preliminary
investigation is warranted.” Thus, it is still acting within its
powers when it finds that preliminary investigation is
unnecessary and that the complaint should be dismissed.
The Court gives due deference to said decision and will
not interfere with such exercise of power.
Cambe vs. Ombudsman, G.R. Nos. 212014 (2016):
Criminal and administrative cases are distinct from each
other. The settled rule is that criminal and civil cases are
altogether different from administrative matters, such that
the first two will not inevitably govern or affect the third
and vice versa. Verily, administrative cases may proceed
independently of criminal proceedings.
Espaldon vs. Buban, G.R. No. 202784 (2018):
Dismissal based on the grounds provided under Sec. 20
is not mandatory and is discretionary on the part of the
evaluating Ombudsman or Deputy Ombudsman
evaluating the administrative complaint.
Nothing in the assailed Orders would show that the
Ombudsman found the complaint to have suffered from
utter lack of merit. The assailed Orders are empty except
for the citation of SECTION 20 as basis for outright
dismissal. It is thus inaccurate and misleading for the
Ombudsman to profess that the criminal complaint was
dismissed only after the conduct of a preliminary
investigation, when the complaint never reached that
stage to begin with.
Clearly, the Ombudsman committed grave abuse of
discretion when it evaluated and consequently dismissed
a criminal complaint based on grounds peculiar to
administrative cases and in an unexplained deviation from
its own rules of procedure.
b. Qualifications and Disqualifications
Sec. 8, Art. XI; Sec. 2, Art. XI-A
Sec. 8, Art. XI, Constitution: The Ombudsman and his
Deputies shall be natural-born citizens of the Philippines,
and at the time of their appointment, at least forty years
old, of recognized probity and independence, and
members of the Philippine Bar, and must not have been
candidates for any elective office in the immediately
preceding election. The Ombudsman must have for ten
years or more been a judge or engaged in the practice of
law in the Philippines.
During their tenure, they shall be subject to the same
disqualifications and prohibitions as provided for in
SECTION 2 of Article IX-A of this Constitution.
Sec. 2, Art. IX-A, Constitution: No Member of a
Constitutional Commission shall, during his tenure, hold
any other office or employment. Neither shall he engage
in the practice of any profession or in the active
management or control of any business which in any way
be affected by the functions of his office, nor shall he be
financially interested, directly or indirectly, in any contract
with, or in any franchise or privilege granted by the
Government, any of its subdivisions, agencies, or
instrumentalities, including government-owned or
controlled corporations or their subsidiaries.
Discussion: Citizenship, age, ability; Political read and
write; practice of law for 10 years or more be a Judge or
engaged in practice of law
Question Board exam: May a person be appointed
Deputy Ombudsman if engaged in practice of law for
only 7 years? The Deputy Ombudsman needs to be a
lawyer, member of IBP, not required to be in 10yrs
practice or being a Judge.
(Will lift questions from previous Bar exams.)
c. The Special Prosecutor
Sec. 7. Art. XI, Constitution: The existing Tanodbayan
shall hereafter be known as the Office of the Special
Prosecutor. It shall continue to function and exercise its
powers as now or hereafter may be provided by law,
except those conferred on the Office of the Ombudsman
created under this Constitution.
d. Rank and Salary
Sec. 10, Art. XI, Constitution: The Ombudsman and his
Deputies shall have the rank of Chairman and Members,
respectively, of the Constitutional Commissions, and they
shall receive the same salary, which shall not be
decreased during their term of office.
e. Term and Prohibition
Sec. 11, Art. XI, Constitution: SECTION 11. The
Ombudsman and his Deputies shall serve for a term of
seven years without reappointment. They shall not be
qualified to run for any office in the election immediately
succeeding their cessation from office.
f. Powers, Functions and Duties
Secs. 12-13, Art. XI, Constitution
SECTION 12. The Ombudsman and his Deputies, as
protectors of the people, shall act promptly on complaints
filed in any form or manner against public officials or
employees of the Government, or any subdivision,
agency or instrumentality thereof, including government-
owned or controlled corporations, and shall, in
appropriate cases, notify the complainants of the action
taken and the result thereof.
SECTION 13. The Office of the Ombudsman shall have
the following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person,
any act or omission of any public official, employee, office
or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient.
52
(2) Direct, upon complaint or at its own instance, any
public official or employee of the Government, or any
subdivision, agency or instrumentality thereof, as well as
of any government-owned or controlled corporation with
original charter, 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.
(3) Direct the officer concerned to take appropriate action
against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance
therewith.
(4) Direct the officer concerned, in any appropriate case,
and subject to such limitations as may be provided by law,
to furnish it with copies of documents relating to contracts
or transactions entered into by his office involving the
disbursement or use of public funds or properties, and
report any irregularity to the Commission on Audit for
appropriate action.
(5) Request any government agency for assistance and
information necessary in the discharge of its
responsibilities, and to examine, if necessary, pertinent
records and documents.
(6) Publicize matters covered by its investigation when
circumstances so warrant and with due prudence.
(7) Determine the causes of inefficiency, red tape,
mismanagement, fraud, and corruption in the
Government and make recommendations for their
elimination and the observance of high standards of
ethics and efficiency.
(8) Promulgate its rules of procedure and exercise such
other powers or perform such functions or duties as may
be provided by law.
Secs. 13-15, 19-21, 24, RA 6770
SECTION 13. Mandate. — The Ombudsman and his
Deputies, as protectors of the people, shall act promptly
on complaints filed in any form or manner against officers
or employees of the Government, or of any subdivision,
agency or instrumentality thereof, including government-
owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case
where the evidence warrants in order to promote efficient
service by the Government to the people.
SECTION 14. Restrictions. — No writ of injunction shall
be issued by any court to delay an investigation being
conducted by the Ombudsman under this Act, unless
there is a prima facie evidence that the subject matter of
the investigation is outside the jurisdiction of the Office of
the Ombudsman.
No court shall hear any appeal or application for remedy
against the decision or findings of the Ombudsman,
except the Supreme Court, on pure question of law.
SECTION 15. Powers, Functions and Duties. — The
Office of the Ombudsman shall have the following
powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint
by any person, any act or omission of any public officer or
employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient.t has
primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary
jurisdiction, it may take over, at any stage, from any
investigatory agency of Government, the investigation of
such cases;
(2) 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 corporations with
original charter, 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;
(3) Direct the officer concerned to take appropriate action
against a public officer or employee at fault or who neglect
to perform an act or discharge a duty required by law, and
recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance
therewith; or enforce its disciplinary authority as provided
in SECTION 21 of this Act: provided, that the refusal by
any officer without just cause to comply with an order of
the Ombudsman to remove, suspend, demote, fine,
censure, or prosecute an officer or employee who is at
fault or who neglects to perform an act or discharge a duty
required by law shall be a ground for disciplinary action
against said officer;
(4) Direct the officer concerned, in any appropriate case,
and subject to such limitations as it may provide in its rules
of procedure, to furnish it with copies of documents
relating to contracts or transactions entered into by his
office involving the disbursement or use of public funds or
properties, and report any irregularity to the Commission
on Audit for appropriate action;
(5) Request any government agency for assistance and
information necessary in the discharge of its
responsibilities, and to examine, if necessary, pertinent
records and documents;
6) Publicize matters covered by its investigation of the
matters mentioned in paragraphs (1), (2), (3) and (4)
hereof, when circumstances so warrant and with due
prudence: provided, that the Ombudsman under its rules
and regulations may determine what cases may not be
made public: provided, further, that any publicity issued
by the Ombudsman shall be balanced, fair and true;
53
(7) Determine the causes of inefficiency, red tape,
mismanagement, fraud, and corruption in the
Government, and make recommendations for their
elimination and the observance of high standards of
ethics and efficiency;
(8) Administer oaths, issue subpoena and subpoena
duces tecum, and take testimony in any investigation or
inquiry, including the power to examine and have access
to bank accounts and records;
(9) Punish for contempt in accordance with the Rules of
Court and under the same procedure and with the same
penalties provided therein;
(10) Delegate to the Deputies, or its investigators or
representatives such authority or duty as shall ensure the
effective exercise or performance of the powers,
functions, and duties herein or hereinafter provided;
(11) Investigate and initiate the proper action for the
recovery of ill-gotten and/or unexplained wealth amassed
after February 25, 1986 and the prosecution of the parties
involved therein.
The Ombudsman shall give priority to complaints filed
against high ranking government officials and/or those
occupying supervisory positions, complaints involving
grave offenses as well as complaints involving large sums
of money and/or properties.
Secs. 19-21, 24, RA 6770
SECTION 19. Administrative Complaints. — The
Ombudsman shall act on all complaints relating, but not
limited to acts or omissions which:
(1) Are contrary to law or regulation;
(2) Are unreasonable, unfair, oppressive or
discriminatory;
(3) Are inconsistent with the general course of an
agency's functions, though in accordance with law;
(4) Proceed from a mistake of law or an arbitrary
ascertainment of facts;
(5) Are in the exercise of discretionary powers but for an
improper purpose; or
(6) Are otherwise irregular, immoral or devoid of
justification.
SECTION 20. Exceptions. — The Office of the
Ombudsman may not conduct the necessary
investigation of any administrative act or omission
complained of if it believes that:
(1) The complainant has an adequate remedy in another
judicial or quasi-judicial body;
(2) The complaint pertains to a matter outside the
jurisdiction of the Office of the Ombudsman;
(3) The complaint is trivial, frivolous, vexatious or made in
bad faith;
(4) The complainant has no sufficient personal interest in
the subject matter of the grievance; or
(5) The complaint was filed after one (1) year from the
occurrence of the act or omission complained of.
SECTION 21. Official Subject to Disciplinary
Authority; Exceptions. — The Office of the
Ombudsman shall have disciplinary authority over all
elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government, government-
owned or controlled corporations and their subsidiaries,
except over officials who may be removed only by
impeachment or over Members of Congress, and the
Judiciary.
SECTION 24. Preventives Suspension. — The
Ombudsman or his Deputy may preventively suspend any
officer or employee under his authority pending an
investigation, if in his judgment the evidence of guilt is
strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty; (b) the
charges would warrant removal from the service; or (c)
the respondent's continued stay in office may prejudice
the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more
than six (6) months, without pay, except when the delay
in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of
the respondent, in which case the period of such delay
shall not be counted in computing the period of
suspension herein provided.
Discussion: Highlight: Sec 13 - first word investigate act
or omission public officers/officials
● Direct perform expedite, act or duty
● Direct appropriate action
● Publicize matters
● Red-tape
● Promulgate rules and procedures
What is red tape? Because of the step-by-step procedure
in availing a particular service, applicant would hire
"fixers" who would make special arrangements to speed
up transactions in exchange for a fee. See Anti-Red Tape
Act
CASES
54

Canlas vs. Bongolan, G.R. No. 199625 (2018): The
decision of the Ombudsman may be reviewed, modified
or reversed via petition for certiorari under Rule 65 of the
Rules of Court, on a finding that it had no jurisdiction over
the complaint, or of grave abuse of discretion. Decisions
are appealable to the Office of Ombudsman, penalties 1
month salary, reprimand no longer appealable
Standing of Canlas to file such case: the Ombudsman’s
decision exonerated respondents; Canlas has no right to
appeal. Even if he did, he may only do so if the
Ombudsman had acted with GADALEJ. If this is shown,
then the complainant should file a Rule 65 petition w/ the
proper court.
Pasok vs. Ombudsman, G.R. No 218413 (2018):
Ombudsman may ask help from other agencies COA in
performing duties.
It is clear from SECTION 13(1), Article XI of the
Constitution that the Office of the Ombudsman has the
power to investigate on its own or on complaint, any act
of a public official when the act appears to be illegal,
unjust, improper, or inefficient. The Office of the
Ombudsman may also ask for the assistance of a
government agency, like the COA in this case, to carry out
its duties.
PCGG vs. Ombudsman, G.R. No. 206357 (2014): If
prescription has already been set in when a proper case
is filed, the Ombudsman may dismiss the same.
The Court counted the running of the prescriptive period
from the date of discovery thereof on January 4, 1993,
when the Presidential Ad Hoc Fact-Finding Committee
reported to the President its findings and conclusions
anent RHC’s loans. This being the case, the filing by the
PCGG of its Affidavit-Complaint before the Office of the
Ombudsman on January 6,2003, a little over 10 years
from the date of discovery of the crimes, is clearly belated.
Undoubtedly, the ten-year period within which to institute
the action has already lapsed, making it proper for the
Ombudsman to dismiss petitioner’s complaint on the
ground of prescription.
Magante vs. Sandiganbayan, G.R. Nos. 230950 (2018):
To attain the mandate of speedy disposition of cases and
right to speedy trial, Sec. 15 and 16 of RA 6770 bestowed
unto the Ombudsman broad and tremendous powers and
functions that are aimed towards enabling the office to be
a more active and effective agent of the people in
ensuring accountability in public office. Regardless, the
above-quoted provisions, as couched, do not specify a
period for the OMB to render its ruling in cases or matters
before it. Neither did the mentioned laws enumerate the
criteria in determining what duration of disposition could
be considered as "prompt."
The lack of statutory definition on what constitutes
"prompt" action on a complaint opened the gates for
judicial interpretation, which did not draw definite lines,
but merely listed factors to consider in treating petitions
invoking the right to speedy disposition of cases.
Factors to consider in determining inordinate delay:
(1) Length of the Delay
(2) Reasons of the Delay
(3) Assertion of Right by the Accused
(4) Prejudice to the Respondent
(5) Fiscal Autonomy
A motion to dismiss invoking right to speedy trial and
capricious delays need to be explained (2011
investigation, resolution 2016).
g. Fiscal Autonomy
Sec. 14, Art. XI, Constitution: The Office of the
Ombudsman shall enjoy fiscal autonomy. Its approved
annual appropriations shall be automatically and regularly
released.
Discussion: Ombudsman enjoys FA, (1 facet) agency
budget must be automatically and regularly released.
How automatically (Pimentel vs Batangas case)
h. Recovery of Ill-gotten Wealth
Sec. 15, Art. XI, Constitution: The right of the State to
recover properties unlawfully acquired by public officials
or employees, from them or from their nominees or
transferees, shall not be barred by prescription, laches, or
estoppel.
Discussion: right of the State to recover ill-gotten shall
not be barred by prescription or laches (referring to civil
aspect of the case, as to the criminal aspect we follow
criminal law principles)
CASES:
Republic vs. Desierto, G.R. No. 136506 (2001): It has
already been settled in Presidential Ad Hoc Fact-Finding
Committee on Behest Loans vs. Desierto that SECTION
15 of Article XI of the Constitution applies only to civil
actions for recovery of ill-gotten wealth, and not to criminal
cases such as the complaint against the respondents in
OMB-0-90-2808. Conversely, prescription of criminal
cases are governed by special laws on prescription.
The right of the State to recover properties unlawfully
acquired by public officials or employees, from them or
their nominees, shall not be barred by prescription,
Laches, or estoppel.
i. Restriction on Loans
Sec. 16, Art. XI, Constitution: No loan, guaranty, or
other form of financial accommodation for any business
purpose may be granted, directly or indirectly, by any
government-owned or controlled bank or financial
institution to the President, the Vice-President, the
55
Members of the Cabinet, the Congress, the Supreme
Court, and the Constitutional Commissions, the
Ombudsman, or to any firm or entity in which they have
controlling interest, during their tenure.
j. Submission and Disclosure of SALN
Sec.17, Art. XI, Constitution: A public officer or
employee shall, upon assumption of office and as often
thereafter as may be required by law, submit a declaration
under oath of his assets, liabilities, and net worth. In the
case of the President, the Vice-President, the Members
of the Cabinet, the Congress, the Supreme Court, the
Constitutional Commissions and other constitutional
offices, and officers of the armed forces with general or
flag rank, the declaration shall be disclosed to the public
in the manner provided by law.
I. Liabilities
Sec. 15, Art. XI, Constitution: The right of the State to
recover properties unlawfully acquired by public officials
or employees, from them or from their nominees or
transferees, shall not be barred by prescription, laches
or estoppel.
Secs. 38, 39, Book I, Administrative Code
SECTION 38. Liability of Superior Officers.
(1) A public officer shall not be civilly liable for acts
done in the performance of his official duties, unless
there is a clear showing of bad faith, malice or gross
negligence.
(2) Any public officer who, without just cause, neglects to
perform a duty within a period fixed by law or regulation,
or within a reasonable period if none is fixed, shall be
liable for damages to the private party concerned without
prejudice to such other liability as may be prescribed by
law.
(3) A head of a department or a superior officer shall not
be civilly liable for the wrongful acts, omissions of duty,
negligence, or misfeasance of his subordinates, unless he
has actually authorized by written order the specific act or
misconduct complained of.
SECTION 39. Liability of Subordinate Officers. – No
subordinate officer shall be liable for acts done by him in
good faith in the performance of his duties. However, he
shall be liable for willful or negligent acts done by him
which are contrary to law, morals, public policy and good
customs even if he acted under orders or instructions of
his superiors.
Art. 27, 32 NCC
ARTICLE 27. Any person suffering material or moral loss
because a public servant or employee refuses or
neglects, without just cause, to perform his official duty
may file an action for damages and other relief
against the latter, without prejudice to any disciplinary
administrative action that may be taken.
ARTICLE 32. Any public officer or employee, or any
private individual, who directly or indirectly obstructs,
defeats, violates or in any manner impedes or impairs
any of the following rights and liberties of another person
shall be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a
periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom from suffrage;
(6) The right against deprivation of property without due
process of law;
(7) The right to a just compensation when a private
property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secured in one’s person, house,
papers, and effects against unreasonable searches and
seizures;
(10) The liberty of abode and changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of association or
societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly to
petition the Government for redress of grievances;
(14) The right to be free from involuntary servitude in any
form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and
counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy and public trial;
(17) Freedom from being compelled to be a witness
against one’s self, or from being forced to confess guilt,
or from being induced by a promise of immunity or reward
or to make such confession, except when the person
confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual
punishment , unless the same is imposed or inflicted in
accordance with a statute which has not been judicially
declared unconstitutional; and
(19) Freedom of access to courts.
In any of the cases referred to in this article, whether or
not the defendant’s act or omission constitutes a criminal
offense, the aggrieved party has the right to commence
an entirely separate and distinct civil action for damages,
and for other relief. Such civil action shall proceed
independently of any criminal prosecution and may be
proved by preponderance of evidence.
The indemnity shall include moral damages. Exemplary
damages may also be adjudicated.
The responsibility herein set forth is not demandable from
a judge unless his act or omission constitutes a violation
of the Penal Code or other penal statute.
Note: Arts. 27, 32, 34, Civil Code, a person suffering
material or moral loss may file an action for damages.
Introduces 2 liabilities: (1) civil suit for damages and (2)
administrative damages.
56
Discussion: Even public officers are subsumed by Art
32.
Art. 34 NCC: When a member of a city or municipal police
force refuses or fails to render aid or protection to any
person in case of danger to life or property, such police
officer shall be primarily liable for damages, and the city
or municipality shall be subsidiarily responsible therefor.
The civil action herein recognized shall be independent of
any criminal proceedings, and a preponderance of
evidence shall suffice to support such action.
Discussion: Art 34 - is a private person obliged to report
a crime or aid a victim in a crime that he is witnessing? No
law. If that witness is a member of police officer (invoke
Art. 34); Will discuss 3-fold liability rule
Sec. 24, LGC: Liability for damages. Local government
units and their officials are not exempt from liability for
death or injury to persons or damage to property.
Discussion: Sec. 24, LGC - liability of local government
officials (will get into this topic refer Torio vs. Fontanilla
mentioned in Laurel vs. Desierto)
Title VII, RPC CRIMES COMMITTED BY PUBLIC
OFFICERS
Chapter One: PRELIMINARY PROVISIONS
Art 203. Who Are Public Officers. – For the purpose of
applying the provisions of this and the preceding titles of
this book, any person who, by direct provision of the law,
popular election or appointment by competent authority,
shall take part in the performance of public functions in
the Government of the Philippine Islands, or shall perform
in said Government, or in any of its branches public duties
as an employee, agent or subordinate official, of any rank
or class, shall be deemed to be a public officer.
Chapter Two: MALFEASANCE AND MISFEASANCE
IN OFFICE
SECTION One – Dereliction of Duty
Art. 204. Knowingly rendering unjust judgment.
Art. 205. Judgment rendered through negligence.
Art. 206. Unjust interlocutory order.
Art. 207. Malicious delay in the administration of justice.
Art. 208. Prosecution of offenses; negligence and
tolerance.
Art. 209. Betrayal of trust by an attorney or solicitor –
Revelation of secrets.
SECTION Two – Bribery
Art. 210. Direct bribery
Art. 211. Indirect bribery.
Art. 211–A. Qualified Bribery.
Art. 212. Corruption of Public officials.
Chapter Three: FRAUDS AND ILLEGAL EXACTIONS
AND TRANSACTIONS
Art. 213. Frauds against the public treasury and similar
offenses.
Art. 214. Other frauds.
Art. 215. Prohibited transactions.
Art. 216. Possession of prohibited interest by a public
officer.
Chapter Four: MALVERSATION OF PUBLIC FUNDS
OR PROPERTY
Art. 217. Malversation of public funds or property –
Presumption of malversation.
Art. 218. Failure of accountable officer to render accounts.
Art. 219. Failure of a responsible public officer to render
accounts before leaving the country.
Art. 220. Illegal use of public funds or property.
Art. 221. Failure to make delivery of public funds or
property.
Art. 222. Officers included in the preceding provisions
Chapter Five: INFIDELITY OF PUBLIC OFFICERS
SECTION One – Infidelity in the custody of prisoners
Art. 223. Conniving with or consenting to evasion.
Art. 224. Evasion through negligence.
Art. 225. Escape of prisoner under the custody of a
person not a public officer.
SECTION Two – Infidelity in the custody of documents
Art. 226. Removal, concealment or destruction of
documents.
Art. 227. Officer breaking seal.
Art. 228. Opening of closed documents.
SECTION Three – Revelation of Secrets
Art. 229. Revelation of secrets by an officer.
Art. 230. Public officer revealing secrets of private
individual.
Chapter Six OTHER OFFENSES OR IRREGULARITIES
BY PUBLIC OFFICERS
SECTION One – Disobedience, refusal of assistance and
maltreatment of prisoners Art. 231. Open disobedience
Art. 232. Disobedience to order of superior officer, when
said order was suspended by inferior officer.
Art. 233. Refusal of assistance.
Art. 234. Refusal to discharge elective office.
Art. 235. Maltreatment of prisoners.
SECTION Two. – Anticipation, prolongation, and
abandonment of the duties and powers of public office
Art. 236. Anticipation of duties of a public office.
Art. 237. Prolonging performance of duties and powers.
Art. 238. Abandonment of office or position
SECTION Two. – Anticipation, prolongation, and
abandonment of the duties and powers of public office
Art. 236. Anticipation of duties of a public office.
Art. 237. Prolonging performance of duties and powers.
Art. 238. Abandonment of office or position.
Art. 243. Orders or request by executive officers to any
judicial authority.
Art. 244. Unlawful appointments.
57
SECTION Four. – Abuses against chastity Art. 245.
Abuses against chastity – Penalties.
Secs. 1, 2, 11, RA 1379
SECTION 1. Definitions.
(a) For the purposes of this Act, a "public officer or
employee" means any person holding any public office
or employment by virtue of an appointment, election or
contract, and any person holding any office or
employment, by appointment or contract, in any State
owned or controlled corporation or enterprise.
(b) "Other legitimately acquired property" means any
real or personal property, money or securities which the
respondent has at any time acquired by inheritance and
the income thereof, or by gift inter vivos before his
becoming a public officer or employee, or any property (or
income thereof) already pertaining to him when he
qualified for public office or employment, or the fruits and
income of the exclusive property of the respondent's
spouse. It shall not include:
1. Property unlawfully acquired by the respondent, but its
ownership is concealed by its being recorded in the name
of, or held by, the respondent's spouse, ascendants,
descendants, relatives, or any other person.
2. Property unlawfully acquired by the respondent, but
transferred by him to another person or persons on or
after the effectivity of this Act.
3. Property donated to the respondent during his
incumbency, unless he can prove to the satisfaction of the
court that the donation is lawful.
SECTION 2. Filing of petition. Whenever any public
officer or employee has acquired during his incumbency
an amount of property which is manifestly out of
proportion to his salary as such public officer or employee
and to his other lawful income and the income from
legitimately acquired property, said property shall be
presumed prima facie to have been unlawfully
acquired. The Solicitor General, upon complaint by any
taxpayer to the city or provincial fiscal who shall conduct
a previous inquiry similar to preliminary investigations in
criminal cases and shall certify to the Solicitor General
that there is reasonable ground to believe that there has
been committed a violation of this Act and the respondent
is probably guilty thereof, shall file, in the name and on
behalf of the Republic of the Philippines, in the Court of
First Instance of the city or province where said public
officer or employee resides or holds office, a petition for a
writ commanding said officer or employee to show cause
why the property aforesaid, or any part thereof, should not
be declared property of the State: Provided, That no such
petition shall be filed within one year before any general
election or within three months before any special
election.
SECTION 11. Laws on prescription. The laws
concerning acquisitive prescription and limitation of
actions cannot be invoked by, nor shall they benefit the
respondent, in respect of any property unlawfully acquired
by him.
Discussion: Forfeiture law if you have an illegal wealth,
forfeited for the State under Secs. 1, 2, 11, RA 1379.
Secs. 8, 9, RA 3019 Anti-Graft and Corrupt Practices
Act
SECTION 8. Dismissal due to unexplained wealth. If in
accordance with the provisions of Republic Act Numbered
One thousand three hundred seventy-nine, a public
official has been found to have acquired during his
incumbency, whether in his name or in the name of
other persons, an amount of property and/or money
manifestly out of proportion to his salary and to his
other lawful income, that fact shall be a ground for
dismissal or removal. Properties in the name of the
spouse and unmarried children of such public official may
be taken into consideration when their acquisition through
legitimate means cannot be satisfactorily shown. Bank
deposits shall be taken into consideration in the
enforcement of this section, notwithstanding any
provision of law to the contrary.
SECTION 9. Penalties for violations. (a) Any public officer
or private person committing any of the unlawful acts or
omissions enumerated in SECTIONS 3, 4, 5 and 6 of this
Act shall be punished with imprisonment for not less than
one year nor more than ten years, perpetual
disqualification from public office, and confiscation or
forfeiture in favor of the Government of any prohibited
interest and unexplained wealth manifestly out of
proportion to his salary and other lawful income.
Any complaining party at whose complaint the criminal
prosecution was initiated shall, in case of conviction of the
accused, be entitled to recover in the criminal action with
priority over the forfeiture in favor of the Government, the
amount of money or the thing he may have given to the
accused, or the value of such thing.
(b) Any public officer violation any of the provisions of
SECTION 7 of this Act shall be punished by a fine of not
less than one hundred pesos nor more than one thousand
pesos, or by imprisonment not exceeding one year, or by
both such fine and imprisonment, at the discretion of the
Court.
The violation of said section proven in a proper
administrative proceeding shall be sufficient cause for
removal or dismissal of a public officer, even if no criminal
prosecution is instituted against him.
Sec. 11, RA 6713
SECTION 11. Penalties. - (a) Any public official or
employee, regardless of whether or not he holds office or
58
employment in a casual, temporary, holdover, permanent
or regular capacity, committing any violation of this Act
shall be punished with a fine not exceeding the equivalent
of six (6) months' salary or suspension not exceeding one
(1) year, or removal depending on the gravity of the
offense after due notice and hearing by the appropriate
body or agency. If the violation is punishable by a heavier
penalty under another law, he shall be prosecuted under
the latter statute. Violations of sections 7, 8 or 9 of this Act
shall be punishable with imprisonment not exceeding five
(5) years, or a fine not exceeding five thousand pesos
(P5,000), or both, and, in the discretion of the court of
competent jurisdiction, disqualification to hold public
office.
(b) Any violation hereof proven in a proper administrative
proceeding shall be sufficient cause for removal or
dismissal of a public official or employee, even if no
criminal prosecution is instituted against him.
(c) Private individuals who participate in conspiracy as co-
principals, accomplices or accessories, with public
officials or employees, in violation of this Act, shall be
subject to the same penal liabilities as the public officials
or employees and shall be tried jointly with them.
(d) The official or employee concerned may bring an
action against any person who obtains or uses a report
for any purpose prohibited by Section 8 (D) of this Act.
The Court in which such action is brought may assess
against such person a penalty in any amount not to
exceed twenty-five thousand pesos (P25,000). If another
sanction hereunder or under any other law is heavier, the
latter shall apply.
Discussion: Sec. 11, RA 6713 penalties - any official or
employee shall be punished.
CASES:
MWSS vs. COA, G.R. No. 195105 (2017): Despite the
lack of authority for granting the benefits, they still
approved the grant and release of the benefits in excess
of the allowable amounts and extended the same benefits
to its officials and employees not entitled thereto, patently
contravening the letter and spirit of R.A. No. 6758 and
related laws.
The COA has not proved or shown that the petitioners,
among others, were the approving officers contemplated
by law to be personally liable to refund the illegal
disbursements in the MWSS. While it is true that there
was no distinct and specific definition as to who were the
particular approving officers as well as the respective
extent of their participation in the process of determining
their liabilities for the refund of the disallowed amounts,
we can conclude from the fiscal operation and
administration of the MWSS how the process went when
it granted and paid out benefits to its personnel.
Under the circumstances, the petitioners in G.R. No.
220727, albeit officials of the MWSS, were not members
of the Board of Trustees and, as such, could not be held
personally liable for the disallowed benefits by virtue of
their having had no part in the approval of the disallowed
benefits. In turn, the recipients of the benefits - officials
and employees alike - were not liable to refund the
amounts received for having acted in good faith due to
their honest belief that the grant of the benefits had legal
basis.
Vinzons-Chato vs. Fortune, G.R. No. 141309 (2007):
Respondent invoked Article 32, Civil Code when it sued
petitioner for damages for having issued, when she was
BIR Commissioner, RMC 37-93 without the requisite of
notice, hearing and publication, and which was
characterized by the Supreme Court as having fallen
short of a valid and effective administrative issuance.
In deciding the case, the Supreme Court held that Article
32 is the special provision that deals specifically with
violation of constitutional rights by public officers.
Bad faith and malice are not necessary in an action
based on Article 32; the failure to specifically allege the
same will not amount to failure to state a cause of action.
The general rule is that a public officer is not liable for
damages which a person may suffer arising from the just
performance of his official duties and within the scope of
his assigned tasks.
An officer who acts within his authority to administer the
affairs of the office which he/she heads is not liable for
damages that may have been caused to another, as it
would virtually be a charge against the Republic, which is
not amenable to judgment for monetary claims without its
consent.
However, a public officer is by law not immune from
damages in his/her personal capacity for acts done in bad
faith which, being outside the scope of his authority, are
no longer protected by the mantle of immunity for official
actions.
Cojuangco vs. CA, 309 SCRA 602 (1999): To hold
public officers personally liable for moral and exemplary
damages and for attorney’s fees for acts done in the
performance of official functions, the plaintiff must prove
that these officers exhibited acts characterized by evident
bad faith, malice, or gross negligence. But even if their
acts had not been so tainted, public officers may still be
held liable for nominal damages if they had violated the
plaintiff’s constitutional rights.
In the case at bar, Cojuangco’s right to use his property
was unduly impeded. While Carracoso may have relied
upon PCGG’s instructions, he could have further sought
the specific legal basis therefor. A little exercise of
prudence would have disclosed that there was no writ
issued specifically for the sequestration of the racehorse
winnings of petitioner. The withholding of the prize
winnings of petitioner without a properly issued
sequestration order clearly spoke of a violation of his
property rights without due process of law.
59

Garcia vs. Sandiganbayan, G.R. NO. 167103 (2006):
Interlocutory orders, Sandiganbayan over forfeiture
involves civil aspect (will be covered by three-fold liability
rule)
In cases where the Sandiganbayan's interlocutory orders
are challenged before this Court, the Sandiganbayan
should continue, not suspend, proceedings before it
where no temporary restraining order or writ of preliminary
injunction is issued by this Court and there is an absence
of a strong probability that the issues raised before this
Court would be rendered moot by the continuation of the
proceedings.
Marcos, Jr. vs. Republic, G.R. No. 189434 (2014): In
determining whether the presumption of ill-gotten wealth
should be applied, the relevant period is incumbency, or
the period in which the public officer served in that
position. The amount of the public officer’s salary and
lawful income is compared against any property or
amount acquired for that same period.
In the Swiss Deposits Decision, the Court ruled that
petitioner Republic was able to establish the prima facie
presumption that the assets and properties acquired by
the Marcoses "were manifestly and patently
disproportionate to their aggregate salaries as public
officials.
1. Threefold Liability Rule
Discussion: One act triggers 3 distinct separate
liabilities; Sandiganbayan and Ombudsman may rule on
all 3; it can also happen that they are lodged in different
offices.
Civil, administrative and criminal aspects of the case are
separate and distinct from one another. The dismissal of
one will not bar the prosecution of the other because of
their distinct weight of evidence.
Quantum of evidence required:
1. Criminal case-proof beyond reasonable doubt
2. Civil case- preponderance of evidence
3. Administrative case- substantial evidence
CASES:
Tecson vs. Sandiganbayan, 318 SCRA 80 (1999): It is
a basic principle of the law on public officers that a public
official or employee is under a threefold responsibility for
violation of duty or for a wrongful act or omission. This
simply means that a public officer may be held civilly,
criminally, and administratively liable for a wrongful
doing.
It is settled that a complaint for misconduct, malfeasance
or misfeasance against a public officer or employee
cannot just be withdrawn at any time by the complainant
This administrative liability is separate and distinct from
the penal and civil liabilities. Thus, the dismissal of an
administrative case does not necessarily bar the filing of
a criminal prosecution for the same or similar acts, which
were the subject of the administrative complaint.
Fajardo vs. Ombudsman, G.R. No. 173268 (2012):
Effect of dismissal of criminal case is that civil and admin
cases continue. They are independent. They are distinct
because of evidence; admin case requires substantial
evidence.
Under the "threefold liability rule," any act or omission of
any public official or employee can result in criminal, civil,
or administrative liability, each of which is independent of
the other.
The discrepancy between the "audit sales" and the actual
amount remitted by petitioner is sufficient evidence of
dishonesty and grave misconduct warranting his
dismissal from public service.
Unlike in a criminal case where proof beyond reasonable
doubt is required, administrative proceedings only require
substantial evidence or "such relevant evidence as a
reasonable mind may accept as adequate to support a
conclusion."
Jorolan vs. Acuzar, G.R. No. 177878 (2010): The settled
rule is that criminal and administrative cases are separate
and distinct from each other. In criminal cases, proof
beyond reasonable doubt is needed whereas in
administrative proceedings, only substantial evidence is
required. Verily, administrative cases may proceed
independently of criminal proceedings.
PLEB may proceed with the administrative case despite
there being a criminal case filed in another trial court. The
two cases may proceed independently of each other.
Ocampo vs. Ombudsman, G.R. No. 114683 (2000): The
lack or absence of proof beyond reasonable doubt does
not mean an absence of any evidence whatsoever for
there is another class of evidence which, though
insufficient to establish guilt beyond reasonable doubt, is
adequate in civil cases; this is preponderance of
evidence.
Then too, there is the "substantial evidence" rule in
administrative proceedings which merely requires such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.
Thus, considering the difference in the quantum of
evidence, as well as the procedure followed and the
sanctions imposed in criminal and administrative
proceedings, the findings and conclusions in one should
not necessarily be binding on the other.
RTC in dismissing the criminal complaint, was simply
saying that the prosecution was unable to prove the guilt
of petitioner beyond reasonable doubt. However, the
evidence may still satisfy the substantial level required in
administrative cases.
60

As such, the Ombudsman decision will still hold despite
dismissal of the criminal cases in the RTC.
OCA vs. Macusi, A.M. No. P-13-3105 (2013): Cessation
from office of respondent by resignation or retirement
neither warrants the dismissal of the administrative
complaint filed against him while he was still in the service
nor does it render said administrative case moot and
academic.
Macusi’s prayer for dismissal of the admin case for being
moot is baseless. Macusi’s constructive resignation from
service through filing of his Certificate of Candidacy for
the 2010 Local Elections does not render the case against
him moot. Resignation is not a way out to evade
administrative liability when a court employee is facing
administrative sanction.
Considering the grave responsibilities imposed on him,
Macusi had been careless and imprudent in discharging
his duties. Neither neglect nor delay should be allowed to
stall the expeditious disposition of cases. As such, he is
indeed guilty of simple neglect of duty, which is the failure
of an employee to give proper attention to a required task.
Simple neglect of duty signifies “disregard of a duty
resulting from carelessness or indifference.”
Larin vs. Executive Secretary, G.R. No. 112745 (1997):
Where the very basis of the administrative case against
petitioner is his conviction in the criminal action which was
later on set aside by this Court upon a categorical and
clear finding that the acts for which he was
administratively held liable are not unlawful and irregular,
the acquittal of the petitioner in the criminal case
necessarily entails the dismissal of the administrative
action against him, because in such a case, there is no
more basis nor justifiable reason to maintain the
administrative suit.
There was a finding by which body that the act was not
criminal. Petitioner cannot be held negligent, there is
nothing illegal.
Discussion: Nullum crimen sine lege: There is no crime
if there is no law punishing it.
What happens to civil and administrative cases? No
reason for admin charge to continue; no act to begin with.
There is no conviction on civil case? There may be
conviction on criminal and administrative. There is
pronouncement on guilt, may be no guilt on other two
aspects.
a. Doctrine of Condonation
Discussion: Elective Officer + Charged + pending action,
he still got re-elected = there is presumption that the
public has CONDONED the offense done.
SC invented this doctrine and was expanded in Pascual
case in 1959 until it was abandoned in Carpio case in
2015. #NeverForgive
Situation 1: Elected as mayor in Cabanatuan + offense +
2013 ran for governor in Nueva Ecija. Is it condoned? No,
because there is larger electorate, which means it was not
the same electorate in the previous election.
Situation 2: Gov last term + admin offense + decided to
run as Mayor + you got elected. Is it condoned? Yes,
because it is the same partial electorate.
What happens to administrative offense? I leave it to you.
Answer carefully by reading of the cases.
Why discuss despite being abandoned? On-going
docketed cases.
CASES:
Carpio-Morales vs. CA, G.R. Nos. 217126-27 (2015):
The concept of public office is a public trust and the
corollary requirement of accountability to the people at all
times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local official's
administrative liability for a misconduct committed during
a prior term can be wiped off by the fact that he was
elected to a second term of office, or even another
elective post.
Election is not a mode of condoning an administrative
offense, and there is simply no constitutional or statutory
basis in our jurisdiction to support the notion that an
official elected for a different term is fully absolved of any
administrative liability arising from an offense done during
a prior term.
It also cannot be inferred from section 60 of the LGC that
the grounds for discipline enumerated therein cannot
anymore be invoked against an elective local official to
hold him administratively liable once he is re-elected to
office. In fact, section 40 (b) of the LGC precludes
condonation since in the first place, an elective local
official who is meted with the penalty of removal could not
be re-elected to an elective local position due to a direct
disqualification from running for such post. In similar
regard, section 52 (a) of the RRACCS imposes a penalty
of perpetual disqualification from holding public office as
an accessory to the penalty of dismissal from service.
Office of the Ombudsman vs. Vergara, G.R. No,
216871 (2017): It is apparent that the most important
consideration in the doctrine of condonation is the fact
that the misconduct was done on a prior term and that the
subject public official was eventually re-elected by the
same body politic. It is inconsequential whether the said
re-election be on another public office or on an election
year that is not immediately succeeding the last, as long
as the electorate that re-elected the public official be
the same.
61
Dator vs. Carpio-Morales G.R. No. 237742 (October 8,
2018): As can be seen from this discourse, it was a
doctrine adopted from one class of US rulings way back
in 1959 and thus, out of touch from - and now rendered
obsolete by - the current legal regime. In consequence, it
is high time for this Court to abandon the condonation
doctrine that originated from Pascual, and affirmed in the
cases following the same, such as Aguinaldo, Salalima,
Mayor Garcia, and Governor Garcia, Jr. which were all
relied upon by the CA.
The above ruling, however, was explicit in its
pronouncement that the abandonment of the doctrine of
condonation is prospective in application, hence, the
same doctrine is still applicable in cases that transpired
prior to the ruling of this Court in Carpio Morales v. CA
and Jejomar Binay, Jr. thus:
It should, however, be clarified that this Court's
abandonment of the condonation doctrine should be
prospective in application for the reason that judicial
decisions applying or interpreting the laws or the
Constitution, until reversed, shall form part of the legal
system of the Philippines.
Here, the case against Dator was instituted on May 2,
2016, or AFTER the ruling of this Court in the seminal
case of Conchita Carpio Morales vs. CA and Jejomar
Erwin S. Binay, Jr. Clearly then, the condonation principle
is no longer applicable to him.
J. Personnel Actions
Discussion: Personnel actions denotes the movement or
progress of personnel in the civil service; Promotion
essentially going up
1. Promotion
Sec. 26 (2), Book V, Admin Code: Personnel Actions. -
All appointments in the career service shall be made only
according to merit and fitness, to be determined as far as
practicable by competitive examinations. A non-eligible
shall not be appointed to any position in the civil service
whenever there is a civil service eligible actually available
for and ready to accept appointment.
As used in this Title, any action denoting the movement
or progress of personnel in the civil service shall be known
as personnel action. Such action shall include
appointment through certification, promotion, transfer,
reinstatement, re-employment, detail, reassignment,
demotion, and separation. All personnel actions shall be
in accordance with such rules, standards, and regulations
as may be promulgated by the Commission.
(2) Promotion. A promotion is a movement from one
position to another with an increase in duties and
responsibilities as authorized by law and usually
accompanied by an increase in pay. The movement may
be from one department or agency to another, or from one
organizational unit to another in the same department or
agency.
CASES:
Panis vs. CSC, G.R. No. 102948 (1994): The concept of
"next in rank" does not impose any mandatory or
peremptory requirement to appoint the person occupying
the next lower position in the occupational group of the
office. What the Civil Service Law and the Administrative
Code of 1987 provide is that if a vacancy is filled up by
the promotion, the person holding the position next in rank
thereto "shall be considered for promotion".
In other words, one who is "next in rank" to a vacancy is
given preferential consideration for promotion to the
vacant position, but it does not necessarily follow that he
alone and no one else can be appointed. There is no
vested right granted the next in rank nor a ministerial duty
imposed on the appointing authority to promote the holder
to the vacant position.
Whenever there is a vacancy then the next in rank will be
considered for promotion
CSC vs. Rebong, G.R. No. 215932 (2019): As long as
the appointee is qualified, the Civil Service Commission
has no choice but to attest to and respect the appointment
even if it be proved that there are others with superior
credentials. The law limits the Commission's authority
only to whether or not the appointees possess the legal
qualifications and the appropriate civil service eligibility,
nothing else. If they do then the appointments are
approved because the Commission cannot exceed its
power by substituting its will for that of the appointing
authority.
2. Transfer
Sec. 26 (3), Book V, Admin Code: Transfer. A transfer
is a movement from one position to another which is of
equivalent rank, level, or salary without break in service
involving the issuance of an appointment.
It shall not be considered disciplinary when made in the
interest of public service, in which case, the employee
concerned shall be informed of the reasons therefor. If the
employee believes that there is no justification for the
transfer, he may appeal his case to the Commission.
The transfer may be from one department or agency to
another or from one organizational unit to another in the
same department or agency: Provided, however, that any
movement from the non-career service to the career
service shall not be considered a transfer.
Discussion: Transfer from one branch to another by
lateral movement; does not involve diminution of salary.
3. Reinstatement
Sec. 26(4), Book V, Administrative Code:
Reinstatement. Any person who has been permanently
appointed to a position in the career service and who has,
through no delinquency or misconduct, been separated
62
therefrom, may be reinstated to a position in the same
level for which he is qualified.
CASES:
Campol vs. Balao-as, G.R. No. 197634 (2016): The
reinstatement of an illegally dismissed employee is proper
even when another person is already occupying the
position. This is not a legal impediment to reinstatement.
When a regular government employee was illegally
suspended or dismissed, legally speaking, his position
never become vacant, hence there was no vacancy to
which a new incumbent could be permanently appointed
it being considered that the incumbency of the person
appointed to the position is temporary and he has to give
way to the employee whose right to the office has been
recognized by the competent authorities.
Discussion: Dismissed from service for 6 years then was
exonerated by SC, for how many years can he recover?
The actual number of years, which is 6 years because of
undue decision. (Before: 5 years only)
Reinstatement: Charge with misconduct but later on is
exonerated.
4. Re-employment
Sec. 26(5), Book V, Administrative Code:
Reemployment. Names of persons who have been
appointed permanently to positions in the career service
and who have been separated as a result of reduction in
force or reorganization, shall be entered in a list from
which selection for reemployment shall be made.
5. Detail
Sec. 26 (6), Book V, Administrative Code: Detail. A
detail is the movement of an employee from one agency
to another without the issuance of an appointment and
shall be allowed, only for a limited period in the case of
employees occupying professional, technical and
scientific positions. If the employee believes that there is
no justification for the detail, he may appeal his case to
the Commission. Pending appeal, the decision to detail
the employee shall be executory unless otherwise
ordered by the Commission.
6. Reassignment
Sec. 26 (7), Book V, Administrative Code:
Reassignment. An employee may be reassigned from
one organizational unit to another in the same agency:
Provided, that such reassignment shall not involve a
reduction in rank, status or salary.
7. Secondment
Discussion: Not in Administrative Code (glaring). An
employee does not necessarily occupy a new position;
since temporary, salary will come from mother agency,
not from new agency.
Example. NEDA Director General did not lose position in
UP School of Economics Faculty Dean.
CASES:
Señeres vs. Sabido, G.R. No. 172902 (2015): A
secondment is a movement of an employee from one
department or agency to another which is temporary in
nature. It may or may not require the issuance of an
appointment and may involve an increase in
compensation and benefits. Acceptance of a secondment
is voluntary on the part of the employee.
Secondment being temporary in nature, the payment of
salaries of a seconded employee shall be borne by the
receiving agency and the seconded employee shall be on
leave without pay in his mother agency for the duration of
his secondment.
K. Disciplinary Actions on Public Officers
Sec. 2(3), Art. IX-B, Constitution: No officer or
employee of the civil service shall be removed or
suspended except for cause provided by law.
Secs. 12, 13, Art. XI, Constitution
SECTION 12. The Ombudsman and his Deputies, as
protectors of the people, shall act promptly on complaints
filed in any form or manner against public officials or
employees of the Government, or any subdivision,
agency or instrumentality thereof, including government-
owned or controlled corporations, and shall, in
appropriate cases, notify the complainants of the action
taken and the result thereof.
SECTION 13. The Office of the Ombudsman shall have
the following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person,
any act or omission of any public official, employee, office
or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any
public official or employee of the Government, or any
subdivision, agency or instrumentality thereof, as well as
of any government-owned or controlled corporation with
original charter, 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.
(3) Direct the officer concerned to take appropriate action
against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance
therewith.
(4) Direct the officer concerned, in any appropriate case,
and subject to such limitations as may be provided by law,
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to furnish it with copies of documents relating to contracts
or transactions entered into by his office involving the
disbursement or use of public funds or properties, and
report any irregularity to the Commission on Audit for
appropriate action.
(5) Request any government agency for assistance and
information necessary in the discharge of its
responsibilities, and to examine, if necessary, pertinent
records and documents.
(6) Publicize matters covered by its investigation when
circumstances so warrant and with due prudence.
(7) Determine the causes of inefficiency, red tape,
mismanagement, fraud, and corruption in the
Government and make recommendations for their
elimination and the observance of high standards of
ethics and efficiency.
(8) Promulgate its rules of procedure and exercise such
other powers or perform such functions or duties as may
be provided by law.
Secs. 46(b), 47, 50-53, Book V, Administrative Code
Secs. 46 (b) Book V, Administrative Code: Discipline:
General Provisions. - (b) The following shall be
grounds for disciplinary action:
(1) Dishonesty;
(2) Oppression;
(3) Neglect of duty
(4) Misconduct;
(5) Disgraceful and immoral conduct;
(6) Being notoriously undesirable;
(7) Discourtesy in the course of official duties;
(8) Inefficiency and incompetence in the performance of
official duties;
(9) Receiving for personal use of a fee, gift or other
valuable thing in the course of official duties or in
connection therewith when such fee, gift, or other
valuable thing is given by any person in the hope or
expectation of receiving favor or better treatment than that
accorded other persons, or committing acts punishable
under the anti-graft laws;
(10) Conviction of a crime involving moral turpitude;
(11) Improper or unauthorized solicitation of contributions
from subordinate employees and by teachers or school
officials from school children;
(12) Violation of existing Civil Service Law and rules or
reasonable office regulations;
(13) Falsification of official document;
(14) Frequent unauthorized absences or tardiness in
reporting for duty, loafing or frequently unauthorized
absence from duty during regular office hours;
(15) Habitual drunkenness;
(16) Gambling prohibited by law;
(17) Refusal to perform official duty or render overtime
service;
(18) Disgraceful, immoral or dishonest conduct prior to
entering the service;
(19) Physical or mental incapacity or disability due to
immoral or vicious habits;
(20) Borrowing money by superior officers from
subordinates or lending by subordinates to superior
officers;
(21) Lending money at usurious rates or interest;
(22) Willful failure to pay just debts or willful failure to pay
taxes due to the government;
(23) Contracting loans of money or other property from
persons with whom the office of the employee concerned
has business relations;
(24) Pursuit of private business, vocation or profession
without the permission required by Civil Service rules and
regulations;
(25) Insubordination;
(26) Engaging directly or indirectly in partisan political
activities by one holding a non-political office;
(27) Conduct prejudicial to the best interest of the service;
(28) Lobbying for personal interest or gain in legislative
halls and offices without authority;
(29) Promoting the sale of tickets in behalf of private
enterprises that are not intended for charitable or public
welfare purposes and even in the latter cases if there is
no prior authority;
(30) Nepotism as defined in section 60 of this Title.
SECTION 47. Disciplinary Jurisdiction.
(1) The Commission shall decide upon appeal all
administrative disciplinary cases involving the imposition
of a penalty of suspension for more than thirty days, or
fine in an amount exceeding thirty days' salary, demotion
in rank or salary or transfer, removal or dismissal from
office. A complaint may be filed directly with the
Commission by a private citizen against a government
official or employee in which case it may hear and decide
the case or it may deputize any department or agency or
official or group of officials to conduct the investigation.
The results of the investigation shall be submitted to the
Commission with recommendation as to the penalty to be
imposed or other action to be taken.
(2) The Secretaries and heads of agencies and
instrumentalities, provinces, cities and municipalities shall
have jurisdiction to investigate and decide matters
involving disciplinary action against officers and
employees under their jurisdiction. Their decisions shall
be final in case the penalty imposed is suspension for not
more than thirty days or fine in an amount not exceeding
thirty days', salary. In case the decision rendered by a
bureau or office head is appealable to the Commission,
the same may be initially appealed to the department and
finally to the Commission and pending appeal, the same
shall be executory except when the penalty is removal, in
which case the same shall be executory only after
confirmation by the Secretary concerned.
(3) An investigation may be entrusted to regional director
or similar officials who shall make the necessary report
and recommendation to the chief of bureau or office or
department within the period specified in Paragraph (4) of
the following section.
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(4) An appeal shall not stop the decision from being
executory, and in case the penalty is suspension or
removal, the respondent shall be considered as having
been under preventive suspension during the pendency
of the appeal in the event he wins an appeal.
SECTION 50. Summary Proceedings. - No formal
investigation is necessary and the respondent may be
immediately removed or dismissed if any of the following
circumstances is present:
(1) When the charge is serious and the evidence of guilt
is strong;
(2) When the respondent is a recidivist or has been
repeatedly charged and there is reasonable ground to
believe that he is guilty of the present charge; and
(3) When the respondent is notoriously undesirable.
Resort to summary proceedings by the disciplining
authority shall be done with utmost objectivity and
impartiality to the end that no injustice is committed:
Provided, That removal or dismissal except those by the
President, himself or upon his order, may be appealed to
the Commission.
SECTION 51. Preventive Suspension. - The proper
disciplining authority may preventively suspend any
subordinate officer or employee under his authority
pending an investigation, if the charge against such officer
or employee involves dishonesty, oppression or grave
misconduct, or neglect in the performance of duty, or if
there are reasons to believe that the respondent is guilty
of charges which would warrant his removal from the
service.
SECTION 52. Lifting of Preventive Suspension
Pending Administrative Investigation. - When the
administrative case against the officer or employee under
preventive suspension is not finally decided by the
disciplining authority within the period of ninety (90) days
after the date of suspension of the respondent who is not
a presidential appointee, the respondent shall be
automatically reinstated in the service: Provided, That
when the delay in the disposition of the case is due to the
fault, negligence or petition of the respondent, the period
of delay shall not be counted in computing the period of
suspension herein provided.
SECTION 53. Removal of Administrative Penalties or
Disabilities. - In meritorious cases and upon
recommendation of the Commission, the President may
commute or remove administrative penalties or
disabilities imposed upon officers or employees in
disciplinary cases, subject to such terms and conditions
as he may impose in the interest of the service.
Secs. 21, 24, RA 6770
SECTION 21. Official Subject to Disciplinary
Authority; Exceptions. — The Office of the Ombudsman
shall have disciplinary authority over all elective and
appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government, government-
owned or controlled corporations and their subsidiaries,
except over officials who may be removed only by
impeachment or over Members of Congress, and the
Judiciary.
SECTION 24. Preventives Suspension. — The
Ombudsman or his Deputy may preventively suspend any
officer or employee under his authority pending an
investigation, if in his judgment the evidence of guilt is
strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty; (b) the
charges would warrant removal from the service; or (c)
the respondent's continued stay in office may prejudice
the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more
than six (6) months, without pay, except when the delay
in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of
the respondent, in which case the period of such delay
shall not be counted in computing the period of
suspension herein provided.
CASES
Balasbas vs. Manayao, G.R. No. 190524 (2014):
Dishonesty is defined as the concealment or distortion of
truth in a matter of fact relevant to one’s office or
connected with the performance of his duty.
It implies a disposition to lie, cheat, deceive, or defraud;
untrustworthiness; lack of integrity; lack of honesty,
probity, or integrity in principle; and lack of fairness and
straightforwardness.
On the other hand, misconduct is a transgression of some
established or definite rule of action, is a forbidden act, is
a dereliction of duty, is willful in character, and implies
wrongful intent and not mere error in judgment. More
particularly, it is an unlawful behavior by the public officer.
At the very least, the acts complained of constitute
conduct prejudicial to the best interest of the service, an
administrative offense which need not be related to
respondent’s official functions.
As long as the questioned conduct tarnished the image
and integrity of his/ her public office, the corresponding
penalty may be meted on the erring public officer or
employee.
Villanueva vs. CA, G.R. No. 167726 (2006): Misconduct
in office has a definite and well understood legal meaning.
By uniform legal definition, it is a misconduct such as
affects his performance of his duties as an officer and not
such only as affects his character as a private individual.
It is settled that misconduct, misfeasance, or malfeasance
warranting removal from office of an officer, must have
direct relation to and be connected with the performance
of official duties amounting either to maladministration or
65
willful, intentional neglect and failure to discharge the
duties of the office.
Villanueva is guilty of Disgraceful and Immoral Conduct
for having engaged in an illicit affair. Jurisprudence
provides that government employees engaged in illicit
relations are guilty of "disgraceful and immoral conduct"
for which he/she may be held administratively liable.
Gupilan-Aguilar vs. Ombudsman, G.R. No. 197307
(2014): The failure to file a truthful SALN puts in doubts
the integrity of the officer and would normally amount to
dishonesty. It should be emphasized, however, that mere
misdeclaration in the SALN does not automatically
amount to such an offense.
Owning properties disproportionate to one’s salary and
not declaring them in the corresponding SALNs cannot,
without more, be classified as grave misconduct.
CSC vs. CA, G.R. No. 176162 (2012): CSC can only take
cognizance of complaints filed directly with it which:
(1) Are brought against personnel of the CSC central
office
(2) Are against 3rd level officials who are not presidential
appointees
(3) Are against officials and employees, but are not acted
upon by the agencies themselves,
(4) Otherwise require direct or immediate action in the
interest of justice.
By allowing only a private citizen to file a complaint
directly with the CSC, the CSC maintains its power to
review on appeal decisions of the BOR while at the same
time the governing board is not deprived of its power to
discipline its officials and employees. Such a distinction
between cases filed by private citizens and those by civil
servants is simply illogical and unreasonable.
Melchor vs. Gironella, G.R. No. 151138 (2005):
Administrative offenses by their very nature, pertain to the
character of public officers and employees. In disciplining
public officers and employees, the object sought is not the
punishment of the officer or employee but the
improvement of the public service and the preservation of
the public’s faith and confidence in our government.
The period stated in par. 5 Sec. 20 RA 6770 does not refer
to the prescription to the offense but to the discretion
given to the office of the ombudsman on whether it will
investigate a particular administrative offense.
Ombudsman vs. Dechaves, G.R. No. 176702 (2013):
The precipitate 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 is not a way out to evade
administrative liability when facing administrative
sanction. The resignation of a public servant does not
preclude the finding of any administrative liability to which
he or she shall still be answerable. The jurisdiction that
was this Court’s at the time of the filing of the
administrative complaint was not lost by the mere fact that
the respondent public official had ceased in office during
the pendency of his case.
Cessation from office of respondent by resignation or
retirement neither warrants the dismissal of the
administrative complaint filed against him while he was
still in the service nor does it render said administrative
case moot and academic.
Office of the Ombudsman vs. Andutan, G.R. No.
176702 (2013): Although the Ombudsman is not
precluded by section 20(5) of R.A. 6770 from conducting
the investigation, the Ombudsman can no longer institute
an administrative case against Andutan because the latter
was not a public servant at the time the case was filed.
The court disagrees with the Ombudsman’s interpretation
that "as long as the breach of conduct was committed
while the public official or employee was still in the service
x x x a public servant’s resignation is not a bar to his
administrative investigation, prosecution and
adjudication." If we agree with this interpretation, any
official – even if he has been separated from the service
for a long time – may still be subject to the disciplinary
authority of his superiors, ad infinitum. This interpretation
is inconsistent with the principal motivation of the law–
which is to improve public service and to preserve the
public’s faith and confidence in the government, and not
the punishment of the public official concerned.
CSC vs. Juen, G.R. No. 200577 (2016):
Ombudsman vs. Dechavez, from a strictly legal point of
view and as held in many cases, once jurisdiction
attaches, it cannot be defeated by the acts of the
respondent, save only where death intervenes and the
action does not survive.
The death of the respondent in an administrative case as
a rule, does not preclude a finding of administrative
liability. The exceptions are:
(1) When the respondent has not been hear and
continuation of the proceedings would deny him of his
right to due process
(2) Where exceptional circumstances exist in the case
leading to equitable and humanitarian considerations
(3) When the kind of penalty imposed or imposable
would render the proceedings useless
Ramiscal vs. COA, G.R. No. 213716 (2017): The right of
the government to exercise administrative supervision
over erring public officials is lost when they cease their
functions in office. Consequently, the government must
commence an administrative case while they are in office;
otherwise, the disciplining body would no longer have any
jurisdiction over them. The same is not true with civil and
criminal cases.
The Court have ruled that even if an administrative case
may no longer be filed against public officials who have
66
already resigned or retired, criminal and civil cases may
still be filed against them. The administrative case
contemplated under the threefold liability rule is one that
goes into the conduct of the public official and is intended
to be disciplinary.
This is not the nature of the present case against
petitioner. The audit proceedings before the COA may be
characterized as administrative but only in the sense that
the COA is an administrative, but only in the sense that
the COA is an administrative body. The audit proceedings
not being an administrative case against him, petitioner’s
resignation in 1998 does not swerve to bar the present
case.
CSC vs. Cruz, G.R. No. 187858 (2011): There are 2
conditions before an employee may be entitled to back
salaries:
a) the employee must be found innocent of the charges
and
b) his suspension must be unjustified.
Under (E.O.) No. 292, there are 2 kinds of preventive
suspension of civil service employees who are charged
with offenses punishable by removal or suspension:
(1) preventive suspension pending investigation and
(2) preventive suspension pending appeal;
Compensation is due only for the period of preventive
suspension pending appeal should the employee be
ultimately exonerated.
It is not enough that an employee is exonerated of the
charges against him. His suspension must be unjustified.
Cruz is entitled to back salaries from the time he was
dismissed by the CMWD until his reinstatement to his
former position (for the period of his preventive
suspension pending appeal). For the period of his
preventive suspension pending investigation, the
respondent is not entitled to any back salaries per our
ruling in Hon. Gloria.
Baculi vs. OP, G.R. No. 188681 (2017): The 1st
dismissal was void; the 2nd was valid.
Baculi, as a presidential appointee, came under the
disciplinary jurisdiction of the President in line with the
principle that the "power to remove is inherent in the
power to appoint." As such, the DAR Secretary held no
disciplinary jurisdiction over him. Verily, Presidential
Decree No. 807 has expressly specified the procedure for
disciplinary actions involving presidential appointees.
In the absence of a law or administrative issuance barring
the DARRIC from conducting its own investigation of
Baculi even when there was no complaint being first filed
against him, the eventual report rendered after
investigation was valid.
4. Expiration of Term or Tenure
Discussion: Term v. Tenure
Term: right to hold office
Tenure: period that one actually held
CASES:
Achocoso v. Macaraig 195 SCRA 235 (1991):
temporary appointments have no security of tenure.
Sambarani v. COMELEC, G.R. No. 160427 (2004):
absent election, petitioners should hold the office on their
capacity until someone who is qualified enters the office.
In Re: Letter of Mrs. Corona: Impeachment was
considered as involuntary retirement.
Involuntary retirement: when one's profession is
terminated for reasons outside the control and discretion
of the worker.
5. Resignation
Sec 82, LGC: Resignation of Elective Local Officials.
(a) Resignations by elective local officials shall be
deemed effective only upon acceptance by the following
authorities:
(1) The President, in the case of governors, vice-
governors, and mayors and vice-mayors of highly
urbanized cities and independent component cities;
(2) The governor, in the case of municipal mayors,
municipal vice-mayors, city mayors and city vice-mayors
of component cities;
(3) The sanggunian concerned, in the case of sanggunian
members; and
(4) The city or municipal mayor, in the case of barangay
officials.
(b) Copies of the resignation letters of elective local
officials, together with the action taken by the aforesaid
authorities, shall be furnished the Department of Interior
and Local Government.
(c) The resignation shall be deemed accepted if not acted
upon by the authority concerned within fifteen (15)
working days from receipt thereof.
(d) Irrevocable resignations by sangguniang members
shall be deemed accepted upon presentation before an
open session of the sanggunian concerned and duly
entered in its records: Provided, however, that this
subsection does not apply to sanggunian members who
are subject to recall elections or to cases where existing
laws prescribe the manner of acting upon such
resignations.
Discussion: If one is an elected officer, there must be a
person who must receive the resignation.
Sec 66, Omnibus Election Code (OEC): Candidates
holding appointive office or positions. - Any person
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holding a public appointive office or position, including
active members of the Armed Forces of the Philippines,
and officers and employees in government-owned or
controlled corporations, shall be considered ipso facto
resigned from his office upon the filing of his certificate of
candidacy.
Discussion: Appointees shall be deemed resigned upon
filing of certificate of candidacy.
CASES:
Collantes v. CA. G.R. No. 169604 (2007): Outlined that
courtesy resignation is as effectual as any resignation.
Joson v. Nario. 187 SCRA 453 (1990): Effective
resignation requires acceptance.
● Reason of necessity for acceptance: public
interest
Gamboa v. CA, G.R. No. L-38068 (1981): Resignation is
only final upon notification of acceptance.
Quinto v. COMELEC. G.R. No. 189698 (2010):
Appointees shall be deemed resigned upon filing of
certificate of candidacy.
Estrada v. Arroyo 353 SCRA 452 (2001): Constructive
resignation: construed from the acts intending the
resignation.
Discussion: What shows constructive resignation?
Elements: (1) intent to resign; (2) acts manifesting intent.
The third element (that is, acceptance) is unnecessary
because the one who resigned was the President. That
being the case, no one in the higher position will accept
his resignation.
Example: The members of the Congress need not accept
the resignation of former House Speaker Allan Peter
Cayetano. His resignation does not fall under the
provisions of Labor Code because his position is not a
private one but a public office. Also, the Local
Government Code is not applicable because Speaker of
HOR is a national position.
Republic vs. Singun, G.R. No. 149356 (2008): To
constitute a complete and operative resignation from
public office, there must be: (1) an intention to relinquish
a part of the term; (2) an act of relinquishment; and (3) an
acceptance by the proper authority.
6. Abandonment of Office
Discussion: What is Abandonment of Office?
It has been defined as the voluntary relinquishment of an
office by the holder, with the intention of terminating his
possession and control thereof. Indeed, abandonment of
office is a species of resignation; while resignation in
general is a formal relinquishment.
What shows abandonment?
Abandonment is a voluntary relinquishment through
nonuser. Therefore, there are two essential elements of
abandonment: (1) an intention to abandon and (2) an
overt or "external" act by which the intention is carried into
effect. (Municipality of San Andres vs. CA, G.R. No.
118883 (1998))
Is Abolition and Abandonment the same?
Abolition of an office is obviously not the same as the
declaration that the office is vacant. While it is
undoubtedly a prerogative of the legislature to abolish
certain offices, it can’t be conceded the power to simply
pronounce those office vacant and thereby effectively
remove the occupants or holders thereof from the civil
service. Canonizado vs. Aguirre, 351 SCRA 359 (2001)
CASES:
Quezon vs. Borromeo, 149 SCRA 205 (1987): Rule VI,
Section 63 of the Omnibus Rules on Leave in the Civil
Service provides that if an official or employee who is
continuously absent without approved leave for at least
thirty (30) working days, he shall be considered on
absence without official leave (AWOL) and shall be
separated from the service or dropped from the rolls
without prior notice. Though not totally fired from the post
because he will be given the opportunity to be heard
during hearing and if he has adequate explanation then
he can be exonerated. However, dropping from the rolls
is considered as a specie of abandonment if an official
failed to validate his absences without approved leave.
Philippine Coconut Authority vs. Garrido, G.R. No.
135003 (2002): The petitioner disapproved respondent’s
leave application only almost two (2) months from the time
he filed the same. Such unexplained inaction by petitioner
for an unreasonable length of time apparently gave
respondent the impression that there was no impediment
to his leave application. Indeed, there is no basis to
conclude outright that he went on leave without an
approved application.
CSC vs. Plopinio, G.R. No. 197571 (2017): There was
no proof that Plopinio was actually absent or did not report
for work for 30 days or more. Respondent's AWOL was
merely presumed from the fact that his DTRs for the
periods of January to April 2002 and January to July 2003
were not on file with the COMELEC Personnel
Department. Thus, there is reasonable ground to believe
that respondent did submit his DTRs for periods in
question to his immediate supervisor, PES Cariño, who
did not sign and forward the same to the COMELEC
Personnel Department.
7. Acceptance of Incompatible Office
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 CASES:
Public Interest Center vs. Elma, supra.: The crucial test
in determining whether incompatibility exists between two
offices is whether one office is subordinate to the other, in
the sense that one office has the right to interfere with the
other.
8. Recall (to be discussed under Local Governments)
9. Criminal Conviction
Effect: Upon conviction, there is an accessory penalty of
removal from service.
10. Impeachment
Important: Who are the impeachable officers and what are
the grounds of impeachment.
Sec. 2, Art. XI 1987 Constitution provides that the
President, the Vice-President, the Members of the
Supreme Court, the Members of the Constitutional
Commissions, 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.
As to the impeachment part in - In Re Letter of Mrs.
Corona: The Court distinguished criminal prosecution
from an impeachment. Impeachment is not the means
intended to redress and punish offenses against the state,
but rather a mere political safeguard designed to preserve
the state and its system of laws from internal harm.
Precisely, it was not crafted to mete out punishment.
Is it possible to be impeached and be disciplined in
other ways?
Impeachment does not imply immunity from court
processes, nor does it preclude other forms of discipline.
11. Removal through Quo Warranto/Prescription of
Right to Office
Sec. 11, Rule 66, RoC
Limitations: Nothing contained in this Rule shall be
construed to authorize an action against a public officer
or employee for his ouster from office unless the same be
commenced within one (1) year after the cause of such
ouster, or the right of the petitioner to hold such office or
position, arose; nor to authorize an action for damages in
accordance with the provisions of the next preceding
section unless the same be commenced within one (1)
year after the entry of the judgment establishing the
petitioner’s right to the office in question.
CASES:
Tumulak vs. Egay, 82 Phil. 828 (1949): The petitioner’s
right of action, if any, accrued in July 1946 when
respondent allegedly usurped the office. From that day to
August 1948, more than one year has elapsed. The
petition, therefore, may not be entertained.
Prescription for quo-warranto proceeding is one year only.
12. Dismissal as Penalty of Disciplinary Action
CSC vs. Clave, G.R. No. 194665 (2012): Clave’s length
of service in the government could not mitigate her liability
considering that the present offense is not her first offense
but her third offense. Applying Section 52(B) of the
Revised Rules on Administrative Cases in the Civil
Service, the penalty of dismissal imposed by the GSIS
and affirmed by the CSC should instead be imposed on
Clave.
Simple neglect of duty is a less grave offense punishable
by suspension of one month and one day to six months
for the first offense and dismissal for the second offense.
First Offense of Simple Neglect – penalty is suspension
Second Offense of Simple Neglect – penalty is dismissal
Gross Neglect - penalty is dismissal
Fernandez vs. Ombudsman, G.R. No. 193983 (2012):
What is gross neglect?
Refers to negligence characterized by the want of even
slight care, acting or omitting to act in a situation where
there is a duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to
consequences in so far as other persons may be affected.
It is the omission of that care which even inattentive and
thoughtless men never fail to take on their own property.
In cases involving public officials, there is gross
negligence when a breach of duty is flagrant and
palpable.
Gross negligence - penalty is dismissal
Grave misconduct – also dismissal
Ombudsman vs. Regalado, G.R. Nos. 208481-82
(2018): The civil service system maintains that
misconduct tainted with “any of the additional elements of
corruption, willful intent to violate the law or disregard of
established rules” is grave. This gravity means that
misconduct was committed with such depravity that it
justifies not only putting an end to an individual’s current
engagement as a public servant, but also the foreclosure
of any further opportunity at occupying public office.
Lagoc vs. Malaga, G.R. No. 184785, (2014): Misconduct
is defined as "a transgression of some established and
definite rule of action, more particularly, unlawful behavior
or gross negligence by a public officer." Misconduct
becomes grave if it "involves any of the additional
elements of corruption, willful intent to violate the law or
to disregard established rules, which must be established
by substantial evidence."
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OCA vs. Ampong, A.M. No. P-13-3132 (2014):
Dishonesty is defined as the “disposition to lie, cheat,
deceive, or defraud; untrustworthiness; lack of integrity;
lack of honesty, probity or integrity in principle; lack of
fairness and straightforwardness; disposition to defraud,
deceive or betray.”
Ampong’s dishonest act as a civil servant renders her
unfit to be a judicial employee. Ampong should not have
been appointed as a judicial employee had this Court
been made aware of the cheating that she committed in
the civil service examinations. Ampong’s present status
as a judicial employee is not a hindrance to her getting
the penalty (dismissal) she deserves.
Villanueva vs. Reodique, G.R. No. 221647 (2018): The
wording of Section 22(t), Rule XIV of the Omnibus Rules
Implementing Book V of Executive Order No. 292, is
clear: a penalty of suspension for the first offense and a
penalty of dismissal for the second offense. The law did
not make an exception to the law on the basis of
"disproportionateness" and "harshness." The law did not
qualify the penalties imposed by taking into consideration
the public officer or employee's years in service, or the
number of awards and commendations the public officer
or employee received.
M. Judicial Review of Disciplinary Cases Involving
Public Officers
Sec. 2, RA 10660 (AN ACT STRENGTHENING
FURTHER THE FUNCTIONAL AND STRUCTURAL
ORGANIZATION OF THE SANDIGANBAYAN,
FURTHER AMENDING PRESIDENTIAL DECREE NO.
1606, AS AMENDED, AND APPROPRIATING FUNDS
THEREFOR)
Sec. 2. Section 4 of the same decree, as amended, is
hereby further amended to read as follows:
“Sec. 4. Jurisdiction. – The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:
“a. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices
Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one
or more of the accused are officials occupying the
following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the
commission of the offense:
“(1) Officials of the executive branch occupying the
positions of regional director and higher, otherwise
classified as Grade ’27’ and higher, of the Compensation
and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:
“(a) Provincial governors, vice-governors, members of
the sangguniang panlalawigan, and provincial treasurers,
assessors, engineers, and other provincial department
heads:
“(b) City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurers, assessors,
engineers, and other city department heads;
“(c) Officials of the diplomatic service occupying the
position of consul and higher;
“(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank;
“(e) Officers of the Philippine National Police while
occupying the position of provincial director and those
holding the rank of senior superintendent and higher;
“(f) City and provincial prosecutors and their assistants,
and officials and prosecutors in the Office of the
Ombudsman and special prosecutor;
“(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations.
“(2) Members of Congress and officials thereof classified
as Grade ’27’ and higher under the Compensation and
Position Classification Act of 1989;
“(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
“(4) Chairmen and members of the Constitutional
Commissions, without prejudice to the provisions of the
Constitution; and
“(5) All other national and local officials classified as
Grade ‘27’ and higher under the Compensation and
Position Classification Act of 1989.
“b. Other offenses or felonies whether simple or
complexed with other crimes committed by the public
officials and employees mentioned in subsection a. of this
section in relation to their office.
“c. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986.
“Provided, That the Regional Trial Court shall have
exclusive original jurisdiction where the information: (a)
does not allege any damage to the government or any
bribery; or (b) alleges damage to the government or
bribery arising from the same or closely related
transactions or acts in an amount not exceeding One
million pesos (P1,000,000.00).
“Subject to the rules promulgated by the Supreme Court,
the cases falling under the jurisdiction of the Regional
Trial Court under this section shall be tried in a judicial
region other than where the official holds office.
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“In cases where none of the accused are occupying
positions corresponding to Salary Grade ’27’ or higher, as
prescribed in the said Republic Act No. 6758, or military
and PNP officers mentioned above, exclusive original
jurisdiction thereof shall be vested in the proper regional
trial court, metropolitan trial court, municipal trial court,
and municipal circuit trial court, as the case may be,
pursuant to their respective jurisdictions as provided in
Batas Pambansa Blg. 129, as amended.
“The Sandiganbayan shall exercise exclusive appellate
jurisdiction over final judgments, resolutions or orders of
regional trial courts whether in the exercise of their own
original jurisdiction or of their appellate jurisdiction as
herein provided.
“The Sandiganbayan shall have exclusive original
jurisdiction over petitions for the issuance of the writs of
mandamus, prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and processes in aid
of its appellate jurisdiction and over petitions of similar
nature, including quo warranto, arising or that may arise
in cases filed or which may be filed under Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the
jurisdiction over these petitions shall not be exclusive of
the Supreme Court.
“The procedure prescribed in Batas Pambansa Blg. 129,
as well as the implementing rules that the Supreme Court
has promulgated and may hereafter promulgate, relative
to appeals/petitions for review to the Court of Appeals,
shall apply to appeals and petitions for review filed with
the Sandiganbayan. In all cases elevated to the
Sandiganbayan and from the Sandiganbayan to the
Supreme Court, the Office of the Ombudsman, through its
special prosecutor, shall represent the People of the
Philippines, except in cases filed pursuant to Executive
Order Nos. 1, 2, 14 and 14-A, issued in 1986.
“In case private individuals are charged as co-principals,
accomplices or accessories with the public officers or
employees, including those employed in government-
owned or controlled corporations, they shall be tried jointly
with said public officers and employees in the proper
courts which shall exercise exclusive jurisdiction over
them.
“Any provisions of law or Rules of Court to the contrary
notwithstanding, the criminal action and the
corresponding civil action for the recovery of civil liability
shall at all times be simultaneously instituted with, and
jointly determined in, the same proceeding by the
Sandiganbayan or the appropriate courts, the filing of the
criminal action being deemed to necessarily carry with it
the filing of the civil action, and no right to reserve the filing
of such civil action separately from the criminal action
shall be recognized: Provided, however, That where the
civil action had heretofore been filed separately but
judgment therein has not yet been rendered, and the
criminal case is hereafter filed with the Sandiganbayan or
the appropriate court, said civil action shall be transferred
to the Sandiganbayan or the appropriate court, as the
case may be, for consolidation and joint determination
with the criminal action, otherwise the separate civil action
shall be deemed abandoned.”
CASES:
Maglalang vs. PAGCOR, G.R. No. 190566 (2013):
Section 37 (a) and (b) of P.D. No. 807, otherwise known
as the Civil Service Decree of the Philippines, provides for
the unavailability of any appeal:
(a) The Commission shall decide upon appeal all
administrative disciplinary cases involving the imposition
of a penalty of suspension for more than thirty days, or
fine in an amount exceeding thirty days salary, demotion
in rank or salary or transfer, removal or dismissal from
Office.
(b) The heads of departments, agencies and
instrumentalities, provinces, cities and municipalities shall
have jurisdiction to investigate and decide matters
involving disciplinary action against officers and
employees under their jurisdiction. Their decisions shall
be final in case the penalty imposed is suspension for not
more than thirty days or fine in an amount not exceeding
thirty days salary. In case the decision rendered by a
bureau or office head is appealable to the Commission,
the same may be initially appealed to the department and
finally to the Commission and pending appeal, the same
shall be executory except when the penalty is removal, in
which case the same shall be executory only after
confirmation by the department head.
Decisions of administrative agencies which are declared
final and unappealable by law are still subject to judicial
review via petition for certiorari under Rule 65 of the Rules
of Court, on a finding that it had no jurisdiction over the
complaint, or of grave abuse of discretion amounting to
excess or lack of jurisdiction.
Discussion: If less than 30 days suspension, generally
reviewable by regular courts.
Garcia vs. Sandiganbayan, supra: The civil aspect of
the case to be heard by, the jurisdiction is with the
Sandiganbayan.
Rodrigo vs. Sandiganbayan, G.R. No. 125498 (1999):
Sandiganbayan has jurisdiction over the petitioners under
RA 6758 which re-classified municipal mayors from
Salary Grade 24 to Salary Grade 27.
A local government official's actual salary may be less
than what the Salary Schedule under Section 7
prescribes, depending on the class and financial
capability of his or her respective local government unit.
This circumstance, however, has no bearing on such
official's Grade. As the foregoing discussion shows, an
official's salary is determined by the Grade accorded his
position, and ultimately by the nature of his position — the
level of difficulty and responsibilities and level of
qualification requirements of the work. To give credence
71
to petitioners' argument that Mayor Rodrigo's salary
determines his Grade would be to misconstrue the
provisions of R.A. No. 6758, and ignore the constitutional
and statutory policies behind said law.

Defensor-Santiago vs. Sandiganbayan, G.R. No.

128055 (2001): Sandiganbayan has the authority to order
preventive suspension of an incumbent public official
charged with violation of the provisions of Republic Act
No. 3019.

The SC differentiated between preventive suspension

and the suspension imposed as a penalty in Congress.
Preventive suspension is merely preventive, while
Congress suspension is punitive. Thus, Sandiganbayan
isn’t encroaching on Congress power to suspend its erring
members.

Lacson vs. Executive Secretary, G.R. No. 128096

(1999): It is an elementary rule that jurisdiction is
determined by the allegations in the complaint or
information, and not by the result of evidence after trial.

The SC ruled that the Information didn’t show an intimate

connection between the incident and Lacson’s office as
the PNP Chief. RTC still has the jurisdiction.

De Lima vs. Guerrero, supra: Section 4(b) of PD 1606,

as amended by RA 10660, is the general law on
jurisdiction of the Sandiganbayan over crimes and
offenses committed by high-ranking public officers in
relation to their office; Section 90, RA 9165 is the special
law excluding from the Sandiganbayan's jurisdiction
violations of RA 9165 committed by such public officers.
In the latter case, jurisdiction is vested upon the RTCs
designated by the Supreme Court as drugs court,
regardless of whether the violation of RA 9165 was
committed in relation to the public officials' office.

Jurisdiction over offenses and felonies committed by

public officers is not determined solely by the pay scale or
by the fact that they were committed "in relation to their
office."

Montoya vs. Police Director, G.R. No. 180146 (2008):

The government party appealing must be the one
prosecuting the case and not the disciplining authority or
tribunal which heard the administrative case.

Ombudsman vs. Vitriolo, G.R. No. 237582 (2019):

Ombudsman's legal standing to intervene in appeals from
its rulings in administrative cases has been settled and is
the prevailing rule, provided, that the Ombudsman moves
for intervention before rendition of judgment, pursuant to
Rule 19 of the Rules of Court, lest its motion be denied.

Ombudsman has the personality to file a motion for

intervention in the CA because the case was first heard
by them.

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