University of Cebu-Banilad Campus

Banilad, Cebu City

School of Law

MODULE
LAW ON PUBLIC OFFICERS
Prepared By: Atty. Judiel M. Pareja

_______________________________
Name: Dianne A. Gimenez

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 INTRODUCTION
Section 1, Article XI of the 1987 Constitution provides that a “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.”
Pursuant to this constitutional mandate, Republic Act No. 6713 (The Code of Conduct and
Ethical Standards for Public Officials and Employees) directs the public officials and employees
to uphold public interest over personal interest and for this purpose, to use government resources
and the powers of their offices efficiently, effectively, honestly and economically to avoid wastage
of government resources.
NATURE OF PUBLIC OFFICE
In the case of Cornejo vs. Gabriel, November 17, 1920, the court said that “[i]t is, however,
well settled in the United States, that a public office is not property within the sense of the
constitutional guaranties of due process of law, but is a public trust or agency. In the case of Taylor
vs.Beckham ([1899], 178, U. S., 548), Mr. Chief Justice Fuller said that: "Decisions are numerous
to the effect that public offices are mere agencies or trust, and not property as such." The basic
idea of government in the Philippine Islands, as in the United States, is that of a popular
representative government, the officers being mere agents and not rulers of the people, one
where no one man or set of men has a proprietary or contractual right to an office, but where
every officer accepts office pursuant to the provisions of the law and holds the office as a trust for
the people whom he represents.”
Section 2(9) of the 1987 Administrative Code of the Philippines provides that an “[o]ffice
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.”
"A public office is the right, authority and duty, created and conferred by law, by which for
a given period, either fixed by law or enduring at the pleasure of the creating power, an individual
is invested with some portion of the sovereign function of the government, to be exercised by him
for the benefit of the public" (7 Mechem, Public Officers, Section 1; See also 42 Am. Jur., 944-
955; Emphasis supplied). There is no such thing as a vested interest or an estate in an office, or
even an absolute right to hold office. Excepting constitutional offices which provide for special
immunity as regards salary and tenure, no one can be said to have any vested right in an office
or its salary (42 Am. Jur. 881).
In the case of State, ex rel. Barney, vs. Hawkins, the court said "[a]fter an exhaustive
examination of the authorities, we hold that five elements are indispensable in any position of
public employment, in order to make it a public office of a civil nature: (1) It must be created by
the Constitution or by the legislature or created by a municipality or other body through authority
conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power
of government, to be exercised for the benefit of the public; (3) the powers conferred, and the
duties to be discharged, must be defined, directly or impliedly, by the legislature or through
legislative authority; (4) the duties must be performed independently and without control of a
superior power other than the law, unless they be those of an inferior or subordinate office,
created or authorized by the legislature, and by it placed under the general control of a superior
officer or body; (5) it must have some permanency and continuity, and not be only temporary or
occasional."
PUBLIC OFFICER
The rule concerning the distinction between a public officer and an employee was
enunciated with clarity in People vs. Freedland, 308 Mich 449; 14 NW2d 62 (1944). The court
said that the correct rule is stated in Mechem on Public Offices and Officers, Secs. 1 and 2, as
follows:
"A public office is the right, authority and duty, created and conferred by law, by which for
a given period, either fixed by law or enduring at the pleasure of the creating power, an individual
is invested with some portion of the sovereign functions of the government, to be exercised by
him for the benefit of the public. The individual so invested is a public officer.”

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 The Administrative Code of the Philippines also distinguished an officer from a mere
employee, to wit:
(14) "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.
(15) "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.
In Re: Request of Chief Justice Panganiban, A.M. No. 10-9-15-SC, February 12, 2013,
the Court said that:
Under the old Administrative Code (Act No. 2657), 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 functions of 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 for the Court to give weight to CJ Panganiban’s government service as legal counsel
and consultant. It must be remembered that retired Chief Justice Andres R. Narvasa’s (CJ
Narvasa) stint in a non-plantilla position as Member of the Court Studies Committee of the
Supreme Court, created under Administrative Order No. 164 of then Chief Justice Querube C.
Makalintal, was considered sufficient for purposes of crediting him with an additional five (5) years
of government service, reckoned from September 2, 1974 to 1979.
In Solomon vs. Highland Park Civil Service Commission, 64 Mich App 433, p 438; 236
NW2d 94 (1975), the court stated that:
'A public officer in the general everyday acceptance of the term is a special classification
of those involved in government at what may be described as in an executive classification,
whether his elevation to that status is elective or appointive. His compensation is fixed by
legislative action, state or local. He does not collectively bargain for his wages or working
conditions, and in no case that we know of are his duties and the standard of performance
therefore agreed on by labor contracts. . . .' 64 Mich App 433, 437-438; 236 NW2d 94

Task 1
Read the case of Azarcon vs. Sandiganbayan, February 26, 1997. Does the
Sandiganbayan have jurisdiction over a private individual who is charged with malversation of
public funds as a principal after the said individual had been designated by the Bureau of Internal
Revenue as a custodian of distrained property?
Did such accused become a public officer and therefore subject to the graft court's
jurisdiction as a consequence of such designation by the BIR?
No, Sandiganbayan does not have jurisdiction over a private individual charged with
malversation of public funds.
Sec. 4 of PD 1606 provides for the jurisdiction of the Sandiganbayan. It was specified
therein that the only instances when the Sandiganbayan will have jurisdiction over a private
individual is when the complaint charges the private individual either as a co-principal, accomplice
or accessory of a public officer or employee who has been charged with a crime within its
jurisdiction.
In the said case, the information does not charge petitioner Azarcon of becoming a co-
principal, accomplice or accessory to a public officer committing an offense under the
Sandiganbayan’s jurisdiction. When the information charged the petitioner and his co-accused
before the Sandiganbayan for malversation of public funds or property, the prosecution was, in
fact, charging two private individuals without any public officer being similarly charged as a co-
conspirator. Thus, unless petitioner be proven a public officer, the Sandiganbayan will have no
jurisdiction over the crime charged.

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 No, the accused did not become a public officer and is not subject to the graft court's
jurisdiction as a consequence of such designation by the BIR.
It is true that Sec. 206 of the NIRC, as pointed out by the prosecution, authorizes the BIR
to effect a constructive distraint by requiring “any person to preserve a distrained property,” thus:
The constructive distraint of personal property shall be effected by requiring the taxpayer
or any person having possession or control of such property to sign a receipt covering the property
distrained and obligate himself to preserve the same intact and unaltered and not to dispose of
the same in any manner whatever without the express authority of the Commissioner.
Where the language of a statute is clear and unambiguous, the law is applied according
to its express terms, and interpretation would be resorted to only where a literal interpretation
would be either impossible or absurd or would lead to an injustice. The language of the foregoing
provision is clear.
The Supreme Court ruled in this case that there is no provision in the NIRC constituting
such person a public officer by reason of such requirement. The BIR’s power authorizing a private
individual to act as a depositary cannot be stretched to include the power to appoint him as a
public officer.
Hence, the accused did not become a public officer and is, therefore, not subject to the
graft court's jurisdiction as a consequence of such designation by the BIR.

Task 2
Encircle the words that are related to the different classifications of public officers.

O T C A F E D C S M A S W O U H Y O B J

R L F I H Y N H O S O E E S U T U A U L

J F I E L A D A B I S R X N I R K D T A

M F P V S N U O L G A Z E L R N I N O I

E I O M I L I T A R Y R C P E C S E U C

E V I V B C O D C L T T U E I O T V M I

N E I U F P Q E O O N O T L U A I I T D

U H Y T A E C T L A N O I T A N U T P U

C R A L A G E S M C X S V A V M J N A J

O J S W L L Z U U I E N E A O B A I I E

P T I D C O S R V L F R P I Y K O O O M

A B E T R T S I A U O H U U C R T P C S

B I I T S E G B G E C I T J W T I P U P

K V S N O P A E U E M F S Y E G A A E B

E A I O G M R E L P L N L B O D R I S T

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Task 3
The principles discussed above, particularly the portion which enumerates the
characteristics of an officer, have been followed consistently by courts. By applying the said the
characteristics, determine whether the individuals involved are occupying a public office. Write P
if the individual is a public officer and NP if not.
1. Notary Public - P
2. Attorney-at-law - P
3. Policeman - P
4. Security Guards - NP
5. Clergyman in the celebration of marriage – NP

Case Analysis 1
Read and discuss the important legal doctrines, principles and concepts enunciated in the
following cases.
1. Preclaro vs. Sandiganbayan, August 21, 1995
DOCTRINE: A private individual hired on a contractual basis as Project Manager for
a government undertaking, falls under the non-career service category of the Civil Service
and thus is a public officer based on the interpretation by the court of Sec 2(b) of RA 3019
known as the Anti-Graft and Corrupt Practices Act.
Petitioner, as Project Manager who supervise the construction of the ITDI-CMD, was
charged before the Sandiganbayan with a violation of Sec. 3(b) of R.A. No. 3019 as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act.
The petitioner in this case asserts that he is not a public officer as defined by Sec. 2(b) of
the Anti-Graft & Corrupt Practices Act (R.A. No. 3019 as amended), because he was neither
elected nor appointed to a public office.
Petitioner maintains that he is merely a private individual hired by the ITDI, an agency of
the Department of Science and Technology, on contractual basis for a particular project and for a
specified period 8 as evidenced by the contract of services he entered into with the ITDI.
The Court interpreted the R.A. No. 3019 in relation to public officers in the manner
provided below.
Sec. 2(b) thereof "includes elective and appointive officials and employees,
permanent or temporary, whether in the classified or unclassified or exemption service
receiving compensation, even nominal, from the government
The terms "classified, unclassified or exemption service" were the old categories of
positions in the civil service which have been reclassified into Career Service and Non-Career
Service by PD 807.
Non-career service in particular is characterized by:
(1) entrance on bases other than those of the usual test 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;

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 (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.
Petitioner falls under the non-career service category (formerly termed the unclassified or
exemption service) of the Civil Service and, thus, is a public officer as defined by Sec. 2(b) of the
Anti-Graft & Corrupt Practices Act (R.A. No. 3019).
Among petitioner's duties as Project Manager is to evaluate the contractor's
accomplishment reports/billings. Hence, as correctly ruled by the Sandiganbayan, he has the
"privilege and authority to make a favorable recommendation and act favorably in behalf of the
government," signing acceptance papers and approving deductives and additives are some
examples. All of the elements of Sec. 3(b) of the Anti-Graft & Corrupt Practices Act are, therefore,
present.

2. Serana vs. Sandiganbayan, January 22, 2008

DOCTRINE: Petitioner UP student regent is a public officer.

Petitioner contends that she is not a public officer since she does not receive any salary
or remuneration as a UP student regent.
In Khan, Jr. v. Office of the Ombudsman, the Supreme Court ruled that it is difficult to pin
down the definition of a public officer. The 1987 Constitution does not define who are public
officers. Rather, the varied definitions and concepts are found in different statutes and
jurisprudence.
In Aparri v. Court of Appeals, the Court held that “a public office is the right, authority, and
duty created and conferred by law, by which for a given period, either fixed by law or enduring at
the pleasure of the creating power, an individual is invested with some portion of the sovereign
functions of the government, to be exercise by him for the benefit of the public.”
In Laurel v. Desierto, the Court adopted the definition of Mechem of a public office: "A
public office is the right, authority and duty, created and conferred by law, by which, for a given
period, either fixed by law or enduring at the pleasure of the creating power, an individual is
invested with some portion of the sovereign functions of the government, to be exercised by him
for the benefit of the public. The individual so invested is a public officer."
Section 4 (A) (1) (g) of P.D. No. 1606 explicitly vested the Sandiganbayan with jurisdiction
over Presidents, directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations.
As the Sandiganbayan pointed out, the Board of Regent (BOR) performs functions similar
to those of a board of trustees of a non-stock corporation.
By express mandate of law, petitioner who is a student regent under the BOR is, indeed,
a public officer as contemplated by P.D. No. 1606.

DOCTRINE: Compensation is not indispensable in holding a public office.

It is well established that compensation is not an essential element of public office. At
most, it is merely incidental to the public office.

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 Delegation of sovereign functions is essential in the public office. An investment in an
individual of some portion of the sovereign functions of the government, to be exercised by him
for the benefit of the public makes one a public officer.
The administration of the UP is a sovereign function in line with Article XIV of the
Constitution. UP performs a legitimate governmental function by providing advanced instruction
in literature, philosophy, the sciences, and arts, and giving professional and technical training.
Moreover, UP is maintained by the Government and it declares no dividends and is not a
corporation created for profit.

DOCTRINE: Sandiganbayan has jurisdiction over the offense of estafa.

Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public
officials in relation to their office. We see no plausible or sensible reason to exclude estafa as one
of the offenses included in Section 4(B) of P.D. No. 1606. Plainly, estafa is one of those other
felonies. The jurisdiction is simply subject to the twin requirements that (a) the offense is
committed by public officials and employees mentioned in Section 4(A) of P.D. No. 1606, as
amended, and that (b) the offense is committed in relation to their office.
In Perlas, Jr. v. People, the Court had occasion to explain that the Sandiganbayan has
jurisdiction over an indictment for estafa v. a director of the National Parks Development
Committee, a government instrumentality.
The Sandiganbayan’s jurisdiction over estafa was reiterated with greater firmness in
Bondoc v. Sandiganbayan, which reads:
Furthermore, it is not legally possible to transfer Bondoc's cases to the Regional Trial
Court, for the simple reason that the latter would not have jurisdiction over the offenses. The
inability of the Sandiganbayan to hold a joint trial of Bondoc's cases and those of the government
employees separately charged for the same crimes has not altered the nature of the offenses
charged, as estafa thru falsification punishable by penalties higher than prision correccional or
imprisonment of six years, or a fine of P6,000.00, committed by government employees in
conspiracy with private persons, including Bondoc.
These crimes are within the exclusive, original jurisdiction of the Sandiganbayan. They
simply cannot be taken cognizance of by the regular courts, apart from the fact that even if the
cases could be so transferred, a joint trial would nonetheless not be possible.
Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by
express provision of law.

DOCTRINE: The jurisdiction of the Sandiganbayan is set by P.D. No. 1606, as

amended, not by R.A. No. 3019, as amended.
Section 4(A)(1)(g) of P.D. No. 1606 explicitly vested the Sandiganbayan with jurisdiction
over Presidents, directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations. Petitioner falls under this
category.

3. Namil vs. COMELEC, October 28, 2003

DOCTRINE: Due process in quasi-judicial proceedings before the COMELEC
requires due notice and hearing. Furthermore, the proclamation of a winning candidate
cannot be annulled if he has not been notified of any motion to set aside his proclamation.

In the landmark Cases of Farias v. COMELEC and Gallardo v COMELEC, the COMELEC
is without power to partially or totally annul a proclamation or suspend the effects of a
proclamation without notice and hearing.
While it is true that the COMELEC is vested with a broad power to enforce all election
laws, the same is subject to the right of the parties to due process. In this case, the petitioners

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had been proclaimed as the winning candidates and had assumed their office. Since then, they
had been exercising their rights and performing their duties as members of the Sangguniang
Bayan of Palimbang, Sultan Kudarat. Their proclamation on May 20, 2001 enjoys the presumption
of regularity and validity since no contest or protest was even filed assailing the same.
The petitioners cannot be removed from office without due process of law. Due process in
the proceedings before the public respondent exercising its quasi-judicial functions, requires due
notice and hearing, among others. Thus, although the COMELEC possesses, in appropriate
cases, the power to annul or suspend the proclamation of any candidate, we also ruled in Fariñas
v. Commission on Elections, Reyes v. Commission on Elections and Gallardo v. Commission on
Elections that the COMELEC is without power to partially or totally annul a proclamation or
suspend the effects of a proclamation without notice and hearing.
The Ruling was that The COMELEC is without power to partially or totally annul a
proclamation or suspend the effects of a proclamation without notice and hearing. The
proclamation on May 20, 2001 enjoys the presumption of regularity and validity since no contest
or protest was even filed assailing the same. The petitioners cannot be removed from office
without due process of law.
Due process in quasi-judicial proceedings before the COMELEC requires due notice and
hearing. Furthermore, the proclamation of a winning candidate cannot be annulled if he has not
been notified of any motion to set aside his proclamation. Hence, as ruled in Farias vs.
COMELEC, Reyes vs. COMELEC and Gallardo vs. COMELEC, the COMELEC is without power
to partially or totally annul a proclamation or suspend the effects of a proclamation without notice
and hearing.

Q&A1
Is compensation indispensable to public office?
No, compensation is not indispensable to public office because compensation is not an
element of public office.
In the case of Serana vs. Sandiganbayan, January 22, 2008, the Supreme Court held that
“it is well established that compensation is not an essential element of public office. At most, it is
merely incidental to the public office.”
Delegation of sovereign functions is essential in the public office. An investment in an
individual of some portion of the sovereign functions of the government, to be exercised by him
for the benefit of the public makes one a public officer.
Compensation is not part of the office but merely incident thereto. It is sometimes
expressly provided that certain officers shall receive no compensation, and a law creating an
office without any provision for compensation may carry with it the implication that the services
are to be rendered gratuitously. Hence, if no compensation is fixed by law, the public officer is
assumed to have accepted the office to serve gratuitously.

SELECTION FOR PUBLIC OFFICE

Appointment
In the case of Aparri vs. CA, January 31, 1984, the court explained that “[b]y "appointment"
is meant the act of designation by the executive officer, board or body, to whom that power has
been delegated, of the individual who is to exercise the functions of a given office (Mechem op.
cit., Sec. 102). When 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 is complete
only when such assent or condition is obtained (People vs. Bissell, 49 Cal. 407). To constitute an
"appointment" to office, there must be some open, unequivocal act of appointment on the part of
the appointing authority empowered to make it, and it may be said that an appointment to office
is made and is complete when the last act required of the appointing authority has been performed
(Molnar vs. City of Aurora, 348 N.E. 2d 262, 38 III App. 3d 580). In either case, the appointment

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becomes complete when the last act required of the appointing power is performed (State vs.
Barbour, 53 Conn. 76, 55 Am. Rep. 65).”

Designation
In Binamira vs. Garrucho, July 30, 1990, the court stated that:
“Appointment may be defined as the selection, by the authority vested with the power, of
an individual who is to exercise the functions of a given office. When completed, usually with its
confirmation, the appointment results in security of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his office. Designation, on the other hand,
connotes merely the imposition by law of additional duties on an incumbent official, as where, in
the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors of
the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme
Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the
House of Representatives. It is said that appointment is essentially executive while designation is
legislative in nature. Designation may also be loosely defined as an appointment because it
likewise involves the naming of a particular person to a specified public office. That is the common
understanding of the term. However, where the person is merely designated and not appointed,
the implication is that he shall hold the office only in a temporary capacity and may be replaced
at will by the appointing authority. In this sense, the designation is considered only an acting or
temporary appointment, which does not confer security of tenure on the person named.”
President’s Appointing Power
The 1987 Constitution provides:
“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, 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.”
In the case of Gonzales III vs. Office of the President, September 04, 2012, the court said
that “[u]nder the doctrine of implication, the power to appoint carries with it the power to remove.
As a general rule, therefore, all officers appointed by the President are also removable by him.
The exception to this is when the law expressly provides otherwise - that is, when the power to
remove is expressly vested in an office or authority other than the appointing power. In some
cases, the Constitution expressly separates the power to remove from the President's power to
appoint. Under Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme Court
and judges of lower courts shall be appointed by the President. However, Members of the
Supreme Court may be removed after impeachment proceedings initiated by Congress (Section
2, Article XI), while judges of lower courts may be removed only by the Supreme Court by virtue
of its administrative supervision over all its personnel (Sections 6 and 11, Article VIII). The
Chairpersons and Commissioners of the Civil Service Commission Section 1(2), Article IX(B), the
Commission on Elections Section 1(2), Article IX(C), and the Commission on Audit Section 1(2),
Article IX(D) shall likewise be appointed by the President, but they may be removed only by
impeachment (Section 2, Article XI). As priorly stated, the Ombudsman himself shall be appointed
by the President (Section 9, Article XI) but may also be removed only by impeachment (Section
2, Article XI).”

Election
The Rules of Procedure in Election Contests before the Courts involving Elective
Municipal and Barangay Officials (AM. No. 07-4-15-SC) provides that:

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 “Election - means the choice or selection of candidates to public office by popular vote
through the use of the ballot. Specifically, it may refer to the conduct of the polls, including the
listing of voters, the holding of the electoral campaign, and the casting and counting of ballots and
canvassing of return.”

Q&A2
Read each question very carefully. Answer legibly, clearly, and concisely.
1. It is readily apparent that under the provisions of the 1987 Constitution, there are four
(4) groups of officers whom the President shall appoint. Enumerate these groups and determine
which group/s require or requires the concurrence of the Commission on the Appointments.

Section 16, Article VII of the 1987 Constitution provides that there are four (4) groups of
officers whom the President shall appoint. These are the following:
1.) The President shall nominate and, with consent of the Commission on Appointments,
appoint:
(a) the heads of the executive departments;
(b) ambassadors, other public ministers and consuls;
(c) officers of the Armed Forces from the rank of colonel or naval captain; and
(d) other officers whose appointments are vested in him in the Constitution, such as the
chairman and members of the Commission on Elections, Civil Service Commission, the
Commission on Audit. These appointments require the consent of the Commission on
Appointments (COA).

2.) All other officers of the government whose appointments are not otherwise provided by
law;
3.) Those whom the President may be authorized by law to appoint; and
4.) Officers lower in rank whose appointments Congress may by law vest in the President
alone.

Only appointments in the first group require the consent of the COA. The second, third
and fourth groups do not require such consent.

2. Can the President appoint acting secretaries without the consent of the
Commission on Appointments while Congress is in session?

Yes, the President can appoint acting secretaries without the consent of the Commission
on Appointments while Congress is in session.
In the case of Pimentel vs. Ermita, the law expressly allows the President to make such
an acting appointment. Section 17, Chapter 5, Title I, Book III of EO 292 states that "[t]he President
may temporarily designate an officer already in the government service or any other competent
person to perform the functions of an office in the executive branch." Thus, the President may
even appoint in an acting capacity a person not yet in government service, as long as the
President deems that person competent.
The office of a department secretary may become vacant while Congress is in session.
Since a department secretary is the alter ego of the President, the acting appointee to the office
must necessarily have the President’s confidence. Thus, by the very nature of the office of a
department secretary, the President must appoint in an acting capacity a person of her choice
even while Congress is in session. That person may or may not be the permanent appointee, but

10
practical reasons may make it expedient that the acting appointee will also be the permanent
appointee.
Congress, through a law, cannot impose on the President the obligation to appoint
automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or
permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing
qualifications to an office, cannot impose on the President who her alter ego should be.

Task 3
Choose which of the following appointments by the president require the consent of the
Commission on Appointments.

Commissioner of Customs NLRC Chairman Secretary of Justice AFP Chief

of Staff NBI Director Ombudsman CTA Justice
Lieutenant Naval Captain Consuls PNP Director CHR Chairman

The following require the consent of Commission on Appointments:

Secretary of Justice
AFP Chief of Staff
Lieutenant
Naval Captain
Consuls

Task 4
The following terms are the different steps in the appointing process. Make a schematic
diagram to show the said process and briefly explain each step.

Attestation Nomination Acceptance

Confirmation Issuance of commission

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 STEPS IN THE APPOINTMENT PROCESS
I. The regular appointments which are contemplated under the first paragraph of Article
VII, Section 16 of the 1987 Constitution go through the following stages/appointment process:
Steps in the appointing process:
1) Nomination by the President — the President nominates the potential appointee;
2) Confirmation by the Commission on Appointments — to make that nomination valid and
permanent, the Commission on Appointments of the Legislature has to confirm said nomination.
3) Issuance of the commission — If the CA gives its approval, the president can issue the
appointment of the nominee.
4) Acceptance by the appointee. — The nominee can take oath and assume office
functions.

II. As can be gleaned from the diagram, there are appointments which do not require
confirmation from the CA which include the heads of constitutional offices such as the
commissioner of the Bureau of Customs, chairperson and members of the Commission on Human
Rights. Although the Ombudsman and deputies, justices of the Supreme Court and judges of
lower courts do not need the approval of the CA, applicants are selected by the president from a
shortlist prepared by the Judicial and Bar Council.

III. Where the appointment is to the career service of the Civil Service, attestation by the
Civil Service Commission is required. An appointment to the career service of the Civil Service is
not deemed complete until attestation/ approval by the Civil Service Commission. The Omnibus
Rules Implementing Book V, E.O. 292, provides that an appointment not submitted to the Civil
Service Commission within 30 days from issuance (which shall be the date appearing on the face
of the appointment) shall be ineffective. Without the favorable certification or approval of the Civil
Service Commission, no title to the office can yet be deemed to be permanently vested in favor
of the appointee, and the appointment can still be revoked or withdrawn by the appointing
authority.

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Case Analysis 2
Read and discuss the important legal doctrines, principles and concepts enunciated in the
following cases.
1. Fariñas vs. Executive Secretary, December 10, 2003
The concepts enunciated in the case of Farinas vs. Executive Secretary are the following:
• The constitutional proscription on rider
• the equal protection clause; and
• the enrolled bill doctrine.

Petitioner filed a complaint for the Court to declare unconstitutional Section 14 of RA 9006
or “The Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections
Through Fair Election Practices”, RA 9006 repealed Section 67 of the Omnibus Election Code
mandating the ipso jure resignation from public office of one who filed his certificate of candidacy,
except for President and Vice-President.
The petitioner argued that the repeal of Section 67 is a rider because it is embracing more
than one subject which is in contravention with the mandates of the law. To add, there is a violation
of the equal protection clause because it did not repeal provision with regards to appointive
officials. When appointed officials file for their respective certificates of candidacy, they would still
be considered ipso jure resigned.

I. The Court held that Section 14 of Rep. Act No. 9006 is not a rider. The proscription on a
rider is based on Section 26(1), Article VI of the Constitution. Thus, Section 14 of Rep. Act No.
9006 is not a rider because a rider is a provision not germane to the subject matter of the bill, and
the title and objectives of R.A. 9006 are comprehensive enough to include the repeal of Sec. 67
of the Omnibus Election Code.

II. The Court held that such section does not infringe the equal protection clause. The
repeal of Section 67 of the Omnibus Election Code pertaining to elective officials giving undue
benefit to such officials as against the appointive ones and violates the equal protection clause of
the constitution is tenuous.
The Court emphasized that the equal protection of the law clause in the Constitution is not
absolute, but is subject to reasonable classification. If the groupings are characterized by
substantial distinctions that make real differences, one class may be treated and regulated
differently from the other. The Court has explained the nature of the equal protection guarantee
in this manner: The equal protection of the law clause is against undue favor and individual or
class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended
to prohibit legislation which is limited either in the object to which it is directed or by territory within
which it is to operate.
Here, substantial distinctions clearly exist between elective officials and appointive
officials. The former occupy their office by virtue of the mandate of the electorate. They are elected
to an office for a definite term and may be removed therefrom only upon stringent conditions. On
the other hand, appointive officials hold their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their office in a permanent capacity and are
entitled to security of tenure while others serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55,
Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of
1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service,
are strictly prohibited from engaging in any partisan political activity or take part in any election
except to vote. Under the same provision, elective officials, or officers or employees holding
political offices, are obviously expressly allowed to take part in political and electoral activities.
The lawmakers decided to treat two groups of officials differently by removing Section 67
but keeping Section 66 of the Omnibus Election Code. This distinction pertains to the impact on

13
their tenure in office if they file certificates of candidacy for positions other than their current ones.
The Court cannot evaluate the reasonableness of this classification as it is not within its
jurisdiction.
The equal protection clause of the Constitution is not violated because the classification
used to justify Section 14 of Rep. Act No. 9006, which pertains to the differentiation between
elected and appointive officials, is based on significant and material distinctions between the two
groups. Furthermore, all individuals within the same classification are treated in a similar manner.

III. On the third legal issue, the petitioners urged the Court to go behind the enrolled copy
of the bill, insisting that the entire law should be nullified. They contend that irregularities attended
the passage of the said law particularly in the House of Representatives catalog.
Here, the Court propounded that under the "enrolled bill doctrine," the signing of a bill by
the Speaker of the House and the Senate President and the certification of the Secretaries of both
Houses of Congress that it was passed are conclusive of its due enactment. A review of cases
reveals the Court’s consistent adherence to the rule. The Court finds no reason to deviate from
the salutary rule in this case where the irregularities alleged by the petitioners mostly involved the
internal rules of Congress, e.g., creation of the 2nd or 3rd Bicameral Conference Committee by
the House. The Court maintained that it is not the proper forum for the enforcement of the internal
rules of Congress, whether House or Senate. Parliamentary rules are merely procedural and with
their observance the courts have no concern. Whatever doubts there may be as to the formal
validity of Rep. Act No. 9006 must be resolved in its favor.

2. Quinto vs. COMELEC, February 22, 2010

This case focused on the following:
• equal protection clause;
• requisites of reasonableness of classifications;
• overbreadth doctrine.

I. The Court held that the assailed sections in the Decision do not violate the equal
protection clause.
The Court reaffirmed its previous decision in Farinas, stating that it had already ruled on
whether the deemed-resigned provisions, which were being challenged in the current case,
violate the equal protection clause of the Constitution.
Equal protection of the law clause is against undue favor and individual or class privilege,
as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit
legislation which is limited either in the object to which it is directed or by territory within which it
is to operate. It does not demand absolute equality among residents; it merely requires that all
persons shall be treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed by legislation which
applies only to those persons falling within a specified class, if it applies alike to all persons within
such class, and reasonable grounds exist for making a distinction between those who fall within
such class and those who do not.
In this case, the Court held that substantial distinctions clearly exist between elective
officials and appointive officials. The former occupied their office by virtue of the mandate of the
electorate. They are elected to an office for a definite term and may be removed therefrom only
upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of tenure while others serve at the pleasure of the
appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55,
Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of
1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service,

14
are strictly prohibited from engaging in any partisan political activity or taking part in any election
except to vote.
Under the same provision, elective officials, or officers or employees holding political
offices, are obviously expressly allowed to take part in political and electoral activities.

This case also emphasized on the test of reasonableness of a classification, laying down
all of the jurisprudential requisites, thus:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.
Here, the Court underscored that an election is the embodiment of the popular will,
perhaps the purest expression of the sovereign power of the people. It involves the choice or
selection of candidates to public office by popular vote. Considering that elected officials are put
in office by their constituents for a definite term, it may justifiably be said that they were excluded
from the ambit of the deemed resigned provisions in utmost respect for the mandate of the
sovereign will. In other words, complete deference is accorded to the will of the electorate that
they be served by such officials until the end of the term for which they were elected. In contrast,
there is no such expectation insofar as appointed officials are concerned. The dichotomized
treatment of appointive and elective officials is therefore germane to the purposes of the law, and
as previously acknowledged, satisfies the first, third and fourth requisites.
With regards overbreadth doctrine, this case cited US jurisprudence, to wit:
any enforcement of a statute thus placed at issue is totally forbidden until and unless
a limiting construction or partial invalidation so narrows it as to remove the seeming
threat or deterrence to constitutionally protected expression. Application of the
overbreadth doctrine in this manner is, manifestly, strong medicine.
Although such laws, if too broadly worded, may deter protected speech to some unknown
extent, there comes a point where that effect-at best a prediction-cannot, with confidence, justify
invalidating a statute on its face and so prohibiting a State from enforcing the statute against
conduct that is admittedly within its power to proscribe. To put the matter another way, particularly
where conduct and not merely speech is involved, we believe that the overbreadth of a statute
must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate
sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may
exist should be cured through case-by-case analysis of the fact situations to which its sanctions,
assertedly, may not be applied. In this case, the High Court underscored that Limitation on
Candidacy Regardless of Incumbent Appointive Official’s Position, and Regardless of Type of
Office Sought, are valid. To the Court, a careful study of the challenged provisions and related
laws on the matter will show that the alleged overbreadth is more apparent than real. The SC
ruled that the rules and guidelines, including the restriction in Section 4(a) of Resolution 8678,
were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it
must be noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section
4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective
posts in the May 10, 2010 National and Local Elections. On this score, the overbreadth challenge
leveled against Section 4(a) is clearly unsustainable.

3. Triste vs. Leyte State College Board of Trustees, December 17 ,1990

Private respondent Dr. Gonzaga and public respondent Dr. Flores contend that petitioner
was merely "designated" and not "appointed" to the college vice-presidency. They aver that
petitioner’s "designation" to said position was "purely an internal arrangement which does not
require the approval or confirmation by the Civil Service Commission."
They maintain that petitioner’s term of office being co-terminous with that of the retired
college president, petitioner may not complain that she was illegally dismissed from the vice-
presidency.

15
 On the other hand, petitioner asserts that she was the duly appointed vice-president of
the college and hence, her right to security of tenure may not be unceremoniously abridged.
In Borromeo v. Mariano, 20 this Court, through Justice Malcolm, noted that" (a)ll authorities
unite in saying that the term ‘appoint’ is well-known and whether regarded in its legal or in its
ordinary acceptation, is applied to the nomination or designation of an individual." We defined
"appointment" in Aparri v. Court of Appeals 21 as the "act of designation by the executive officer,
board or body, to whom that power has been delegated, of the individual who is to exercise the
functions of a given office." On the other hand, there is jurisprudence to the effect that the word
"designate," when used by the appointing power in making an appointment to office, is equivalent
to the word "appoint."
Common usage, however, oftentimes puts a distinction between the terms "appointment"
and designation." Perhaps, the reason for this is that the word "appointment" connotes
permanency while "designation" implies temporariness. Thus, to "designate" a public officer to
another position may mean to vest him with additional duties while he performs the functions of
his permanent office. Or, in some cases, a public officer may be "designated" to a position in an
acting capacity as when an Undersecretary is designated to discharge the functions of a Secretary
pending the appointment of a permanent Secretary.

4. Garces vs. Court of Appeals, July 17, 1996

Acceptance is indispensable to complete an appointment. Mere appointment and

qualification of the successor removes an incumbent from his post. Nevertheless, the government
in an act of auto-limitation and to prevent indiscriminate dismissal of government personnel issued
on May 28, 1986, Executive Order (E.O.) No. 17.
This executive order, which applies in this case as it was passed prior to the issuance of
incumbent Election Registrar’s transfer order, enumerates five grounds for separation or
replacement of elective and appointive officials authorized under Article III, Section 2 of the
Provisional Constitution, to wit:
“1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service
Law;
2. Existence of the probable cause for violation of the Anti-Graft and Corrupt Practices Act
as determined by the Ministry Head concerned;
3. Gross incompetence or inefficiency in the discharge of functions;
4. Misuse of public office for partisan political purposes;
5. Any other analogous ground showing that the incumbent is unfit to remain in the service
or his separation/replacement is in the interest of the service."
A transfer requires a prior appointment. If the transfer was made without the consent of
the official concerned, it is tantamount to removal without valid cause contrary to the fundamental
guarantee on non-removal except for cause.
Acceptance, it must be emphasized, is indispensable to complete an appointment.
Corollarily, the incumbent Election Registrar’s post in Gutalac never became vacant. It is a basic
precept in the law of public officers that "no person, no matter how qualified and eligible he is for
a certain position may be appointed to an office which is not vacant. There can be no appointment
to a non-vacant position. The incumbent must first be legally removed, or his appointment validly
terminated before one could be validly installed to succeed him.

5. Provincial Government of Camarines Norte vs. Gonzales, July 23, 2013

It is a basic tenet in the country's constitutional system that "public office is a public trust,"
and that there is no vested right in public office, nor an absolute right to hold office. No proprietary
title attaches to a public office, as public service is not a property right.

16
 Excepting constitutional offices which provide for special immunity as regards salary and
tenure, no one can be said to have any vested right in an office. The rule is that offices in
government, except those created by the constitution, may be abolished, altered, or created any
time by statute. And any issues on the classification for a position in government may be brought
to and determined by the courts.
Congress has reclassified the provincial administrator position as a primarily confidential,
non-career position. In introducing the mandatory provincial administrator position, RA 7160 also
amended the qualifications for the provincial administrator position. While Section 48027 of RA
7160 retained the requirement of civil service eligibility for a provincial administrator, together with
the educational requirements, it shortened the six-year work experience requirement to five years.
It also mandated the additional requirements of residence in the local government concerned,
and imposed a good moral character requirement.
In this case, the Supreme Court categorized provincial administrator position as position
coterminous with its appointing authority, reclassifying it as non-career position that is primarily
confidential.
Adopting the earlier stance of the Civil Service Commission (CSC), the Supreme Court
explained that the administrator position demands a close intimate relationship with the office of
the governor to effectively develop, implement and administer the different programs of the
province. The occupant of the administrator position therefore requires the governor’s full trust
and confidence.
The interesting part as regards the position classification of the local administrator post is
the pronouncement of CSC in one of its Resolutions that while the administrator position is highly
confidential in character, the appointee is required to meet the qualifications enumerated in the
Local Government Code (CSC Resolution No. 030128, January 28, 2003).

ELIGIBILITY AND QUALIFICATION

Black’s Law Dictionary provides that qualification means the possession of the qualities or
circumstances which are inherently or legally necessary to render him eligible to fill an office or to
perform a public duty or function. Moreover, Carlo Cruz said that “lack of disqualifications is itself
a qualification”.
In Lecaroz vs. Sandiganbayan, March 25, 1999, the Court said that:
To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite
to the full investiture with the office. Only when the public officer has satisfied the prerequisite of
oath that his right to enter into the position becomes plenary and complete. Until then, he has
none at all. And for as long as he has not qualified, the holdover officer is the rightful occupant.

Task 5
Complete the table below by writing the qualifications of the following elective officials.
Write p/A if not applicable.

17
 Elective Citizenship Age Literacy Voter Residency
Officials

President Natural-born At least 40 Able to read A registered At least 10 years of residency in

and Vice-President Citizen of the Philippines years of age on the and write voter the Philippines immediately preceding
day of election election

Senator Natural-born At least 35 Able to read Registered Resident of the Philippines for
citizen of the Philippines years of age and write voter not less than 2 years immediately
preceding the day of the election

District Naural-born At least 25 Able Registered Resident

Representative citizen of the years old on the to read and voter in the district in thereof (the district) a
Philippines day of the election write which he shall be period of not less
elected than 1 year
immediately
preceding the day of
the election.

Party-list Natural-born At least Able Registered Not less than

Representative citizen of the twenty-five (25) to read and voter in the one (1) year
Philippines years of age on write constituency in the immediately
the day of the locality preceding the day of
election; Youth the election
sector? at least be
twenty-five (25)
but not more than
thirty (30) years of

18
 age on the day of
the election

Governor, Citizen of the At least 23 Able Registered not less than

Vice-governor, or Member of the SP Philippines years old on the to read and voter in the 1 year immediately
day of the election write constituency in the preceding the day of
locality the election

Mayor, Vice- mayor or Member of Citizen of the At least 23 Able Registered not less than
the SP of independent Philippines years old on the to read and voter in the 1 year immediately
cities day of the election write constituency in the preceding the day of
locality the election

Mayor, Vice- mayor or Member of Citizen of the At least 21 Able Registered not less than
the SP or SB of component Philippines years old to read and voter in the 1 year immediately
cities or municipalities write constituency in the preceding the day of
locality the election

19
 Punong Citizen of the At least 21 Able Registered not less than
Barangay or Member of Philippines years old to read and voter in the 1 year immediately
the Sangguniang Barangay write constituency in the preceding the day of
locality the election

Sangguniang Kabataan (SK) Citizen of the At least 18 Able Registered not less than
Philippines years old to read and voter in the 1 year immediately
write constituency in the preceding the day of
locality the election

20
 Disqualifications
Disqualifications to hold public office are mental or physical incapacity, misconduct or
crime, impeachment, removal or suspension from office, previous tenure of office, consecutive
terms, holding more than one office, relationship with the appointing power, office newly created
or the emoluments of which have been increased, being an elective official, having been a
candidate for any elective position, and grounds under the local government code (Ateneo
Political Law Reviewer and Memory Aid).
DE FACTO OFFICERS
De Facto Officer refers to an officer holding a colorable right or title to the office
accompanied by possession.
In the case of Tuanda vs. Sandiganbayan, the court said:
“The conditions and elements of de facto officership are the following:
1. There must be a de jure office;
2. There must be color of right or general acquiescence by the public; and
3. There must be actual physical possession of the office in good faith. One can qualify as
a de facto officer only if all the aforestated elements are present. There can be no de facto officer
where there is no de jure office, although there may be a de facto officer in a de jure office.”
An officer de facto is to be distinguished from an officer de jure, and is one who has the
reputation or appearance of being the officer he assumes to be but who, in fact, under the law,
has no right or title to the office he assumes to hold. He is distinguished from a mere usurper or
intruder by the fact that the former holds by some color of right or title while the latter intrudes
upon the office and assumes to exercise its functions without either the legal title or color of right
to such office. (McQuillin, Municipal Corporations, Vol. 3, 3rd ed., pp. 376-377.)
To constitute a de facto officer, there must be an office having a de facto existence, or at
least one recognized by law and the claimant must be in actual possession of the office under
color of title or authority. State vs. Babb, 124 W. Va. 428, 20 S.E. (2d) 683. (McQuillin, Municipal
Corporations, supra footnote No. 11, p. 383.)
In his concurring opinion in the case of Nacionalista Party vs. De Vera, Justice Ozaeta
explained that usurper is one "who undertakes to act officially without any color of right."

Task 6
Read the assigned case and determine if the public officer involved is a de jure, de facto
or a usurper. Explain your answer.
1. Judge Capistrano in the case of Tayko vs. Capistrano, October 2, 1928

Judge Capistrano, the respondent judge, is a de facto judge because he is still acting as
a judge of the Court of First Instance of Oriental Negros despite being over 65 years of age, which
is the age limit set by law.
The petitioners allege that the respondent judge is neither a judge de jure nor de facto
because he has lost his jurisdiction to act as a judge. However, the respondents argue that even
if the allegations in the petition are true, the respondent judge is still a de facto judge, and his title
to the office and jurisdiction to hear the cases cannot be questioned by a writ of prohibition.

The petitioners' first proposition that there was an understanding between the respondent
judge and an auxiliary judge that the latter was to hear and take cognizance of all election contests
and criminal causes for violation of the election law and that the respondent judge was to take
cognizance of the ordinary cases is irrelevant because it does not deprive the respondent judge
of the jurisdiction conferred upon him by law.
The second proposition that the respondent judge took an active part in the filing of
criminal charges against the petitioners is also untenable because it does not prove that the
respondent judge acted without or in excess of his jurisdiction.

21
 2. Executive Assistant IV Priscilla Ong in the case of CSC vs. Joson, Jr., May 27, 2004

Priscilla Ong is a de jure officer and not a de facto officer as wrongly held by the Court of
Appeals.
A de facto officer is someone who appears to be holding an office and performing his
duties but who is not legally qualified to do so. In contrast, a de jure officer is someone who is
legally appointed or elected to the position.
The distinction between a de jure officer and a de facto officer is based on the basis of
authority: one has the legal right to the position, while the other is only recognized by reputation.
This is similar to the difference between someone's true character and what others think of them.
In this case, Ong was appointed through a legal process and is entitled to receive all the
salaries and benefits associated with the position. The fact that the appointment process may
have been informal or irregular does not make her a de facto officer, but rather a de jure officer
who is entitled to hold the position and receive its benefits.

Case Analysis 3
Read and discuss the important legal doctrines, principles and concepts enunciated in the
following cases.
1. Menzon vs. Executive Petilla, May 20, 1991
The Local Government Code is silent on the mode of succession in the event of a
temporary vacancy in the Office of the Vice-Governor. However, the silence of the law must not
be understood to convey that a remedy in law is wanting.
The circumstances of the case reveal that there is indeed a necessity for the appointment
of an acting Vice-Governor. For about two years after the governatorial elections, there had been
no de jure permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that
time, had not yet been proclaimed due to a pending election case before the Commission on
Elections.
The petitioner, Aurelio D. Menzon is a de facto officer. The law on Public Officers clearly
provides that “vacancy exists where there is no person lawfully authorized to assume and exercise
at present the duties of the office”. A sensu contrario, there is a vacancy when there is no person
lawfully authorized to assume and exercise at present the duties of the office. (see Stocking v.
State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on Public Offices and Officers, at p. 61).
Further, the appointment has the color of validity as the petitioner assumed the Office of
the Vice-Governor through a color of known appointment by the Secretary of Local Government,
the alter ego of the President. The appointment was made out of necessity and the records reveal
that for approximately two (2) years after the governatorial elections, the province of Leyte, had
no de jure permanent Governor.
The two-year interregnum which would result from the respondents' view of the law is
disfavored as it would cause disruptions and delays in the delivery of basic services to the people
and in the proper management of the affairs of the local government of Leyte. Definitely, it is
incomprehensible that to leave the situation without affording any remedy was ever intended by
the Local Government Code.

2. Nacionalista Party vs. De Vera, December 7, 1949

The Court held that quo warranto and not prohibition is the proper remedy to inquire into
validity of respondent's appointment as Chairman of the Commission on Elections. And we would
stop here were it not because there is apparently some divergence of opinion as to the true import
of the constitutional provisions concerning the appointment of Commissioners of Elections, and
some members of the Court have decided to state their individual opinions on the matter. Under
these circumstances, the majority deems is advisable to also express its views:
Section 1, Article X of the Constitution reads as follows:

22
 There shall be an independent Commission on Elections composed of a Chairman and
two Members to be appointed by the President with the consent of the Commission on
Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the
Members of the Commission first appointed, one shall hold office for nine years, another for six
years, and the third for three years. The Chairman and the other Members of the Commission on
Elections may be removed from office only by impeachment in the manner provided in this
Constitution.
The first sentenced reads: "There shall be an independent Commission on Elections
composed of a Chairman and two other Members to be appointed by the President with the
consent of the Commission on Appointments, who shall hold office for a term of nine years and
may not be reappointed." It must be noticed from this provision that the prohibition against
reappointment comes as a continuation of the requirement that the Commissioners may not
reappointed only after they have held office for nine years. Reappointment is not prohibited when
a Commissioner has held office only for say, three or six years, provided his term will not exceed
nine years in all.
It is maintained that the prohibition against the reappointment applies not only to the
Commissioner appointed for none years, but also to those appointed for a shorter period, because
the reason underlying the prohibition is equally applicable to them, the prohibition being,
according to this theory, intended to prevent the Commissioners from being exposed to improper
influences that are apt to be brought to bear upon those aspiring for reappointment.
As above stated, the language of the Constitution does not warrant the interpretation that
the prohibition against reappointment applies not only to Commissioners who have held office for
nine years but also to those appointed for a lesser term. Upon the other hand, reappointment is
not the only interest that may affect his independence. And it is perhaps useless to prohibit
reappointment to higher and better paid positions is not at the same time prohibited.
This, apart from the consideration that reappointment is not altogether disastrous. A
Commissioner, hopeful of reappointment may strive to do good. Whereas, without that hope or
other hope of material reward, his enthusiasm may decline as the end of his term approaches
and may he even lean to abuses if there is no higher restrain in his moral character. Moral
character is no doubt the most effective safeguard of independence. With moral integrity, a
commissioner will be independent with or without possibility of reappointment.
Without moral integrity, he will not be independent no matter how emphatic the prohibition
on reappointment might be. That prohibition is sound only as to a Commissioner who has held
office for nine years, because after such a long period of so heavy and taxing work, it is but fair
that the venerable Commissioner be given either a rest well-earned or another honorable position
for a change.

Case Analysis 4
Read the cases of Civil Liberties Union vs. Executive Secretary, February 22, 1991, and
Malaluan vs. COMELEC, March 6, 1996. Thereafter, discuss the important legal doctrines,
principles and concepts enunciated in the following cases:
In the Civil Liberties, 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. In other words,
Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and
appointive public officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice- President, Members of the Cabinet, their deputies and
assistants.
The exception of the President, Vice President and Cabinet members cannot hold any
other office unless the law provides so. It is not contrary to the provision on appointive officers not
allowed to hold any other office. The framers of the Constitution would not allow the evil that is
sought to be stopped by having the President and his officials hold multiple offices. The provision
also covers both elective and appointive officials.
In Malaluan vs COMELEC, the holding of office by someone who is found out later to not
have won the post by electorate vote is not a usurper and is still entitled to compensation during
the tenure as it is a de facto position.

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AUTHORITY OF PUBLIC OFFICER
As explained by Carlo Cruz, “the authority of public officer is derived from the people
themselves.” Section 1, Article II of the 1987 constitution provides that “[t]he Philippines is a
democratic and republican State. Sovereignty resides in the people and all government authority
emanates from them.”
Scope of power of a public officer consists of those powers which are expressly conferred
upon him by the law under which he has been appointed or elected; expressly annexed to the
office by the law which created it or some other law referring to it; or attached to the office as
incidents to it (Ateneo Political Law Reviewer and Memory Aid).

Task 7
The duties of the public officer may be discretionary or ministerial. Compare and contrast
the two kinds of duties of the public officer. Cite at least one example for each kind.
Discretionary duty implies that a public officer decides how or when the duty shall be
performed. This involves the use of discretion and judgement in the part of the officer. An example
of a discretionary duty is the appoinment of officials in certain offices by the president.
On the other hand, ministerial duty means that an officer will simply just follow a legal
procedure set-out for them without having to decide on the action taken. An example of a
ministerial duty is the releasing of permits as a power vested in the mayor.
RESPONSIBILITY OF PUBLIC OFFICERS
It is a basic principle of the law on public officers that a public official or employee is under
a three-fold responsibility for violation of duty or for a wrongful act or omission.

Case Analysis 5
Read the case of Flores vs. Montemayor, June 8, 2011. Thereafter, explain the meaning
and nature of the above-mentioned legal principle.
The Supreme Court in affirming its ruling on the respondent’s failure to declare in his 2001
and 2002 Sworn Statement of Assets and Liabilities (SSAL) two expensive cars registered in his
name, in violation of Section 7, Republic Act (R.A.) No. 3019 in relation to Section 8 (A) of R.A.
No. 6713, discussed the three-fold responsibility for violation of duty a public official or employee:
“It is a basic principle of the law on public officers that a public official or employee is under
a three-fold 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.
Thus, if such violation or wrongful act results in damages to an individual, the public officer may
be held civilly liable to reimburse the injured party. If the law violated attaches a penal sanction,
the erring officer may be punished criminally. Finally, such violation may also lead to suspension,
removal from office, or other administrative sanctions. This administrative liability is separate and
distinct from the penal and civil liabilities.”
Dismissal of a criminal action does not foreclose institution of an administrative proceeding
against the same respondent, nor carry with it the relief from administrative liability.
CIVIL SERVICE
Under the Constitution, the Civil Service Commission is the central personnel agency of
the government charged with the duty of determining questions of qualifications of merit and
fitness of those appointed to the civil service. Its power to issue a certificate of eligibility carries
with it the power to revoke a certificate for being null and void.

Task 8
Copy the entire provision concerning the Civil Service Commission in Article IX of the 1987
Constitution.
B. THE CIVIL SERVICE COMMISSION
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

24
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 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and
agencies of the Government, including government-owned or controlled corporations with original
charters.
(2) 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.
(3) No officer or employee of the civil service shall be removed or suspended except for
cause provided by law.
(4) No officer or employee in the civil service shall engage, directly or indirectly, in any
electioneering or partisan political campaign.
(5) The right to self-organization shall not be denied to government employees.
(6) Temporary employees of the Government shall be given such protection as may be
provided by law.
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.
Section 5. 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 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.
Section 8. 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.

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Q and A 3
APPOINTMENT STATUS OF GOVERNMENT EMPLOYEES
Read the case Chua vs. CSC, G.R. No. 88979 February 7, 1992. Is the classification of
“regular employee” relevant in government service?

No, the classification of being a regular employee is not relevant in government service.
Government employees are not governed by the Labor Code but by the Civil Service
Commission. The Labor Code in Art. 280 (P.D. No. 492, as amended) deems an employment
regular where the employee has been engaged to perform activities which are usually necessary
or desirable in the usual business or trade of the employer.

No equivalent definition can be found in P.D. No. 807 (promulgated on 6 October 1975,
which superseded the Civil Service Act of 1965 — R.A. No. 2260) or in the Administrative Code
of 1987 (Executive Order No. 292 promulgated on 25 July 1987), which governs government
employees.
In the case of Chua vs. CSC, the petitioner is not a regular employee. Her employment is
coterminous with the NIA project which in turn was contractual in nature. A coterminous employee
is a non-career civil servant, like casual and emergency employees.
Hence, the classification of being a regular employee is not relevant in government
service.

Task No. 9
Define the following appointment status of government employees in both career and non-
career service.
1. Permanent (Career Service)
One issued to a person who has met the requirements of the position to which appointment
is made, in accordance with the provisions of the Civil Service Act and the Rules and Standards
promulgated in pursuance thereof.
Permanent (Non-career Service)
Entrance on bases other than those of the usual tests of merit and fitness utilized for the
career service.
2. Temporary (Career Service)
In the absence of appropriate eligibles and it becomes necessary in the public interest to
fill a vacancy, a temporary appointment should 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.
Non-career Service
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.
3. Casual (Non-career Service)
Where and when employment is not permanent but occasional, unpredictable, sporadic
and brief in nature.

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OTHER IMPORTANT CONCEPTS

Task 10
Explain thoroughly the following legal concepts.
1. Quo Warranto
Quo Warranto is a legal concept that refers to a legal proceeding in which an individual or
a group challenges the right or authority of another individual or entity to hold a public office or to
exercise a particular right or privilege. The Latin term "quo warranto" literally means "by what
warrant" or "by what authority."
The purpose of a quo warranto proceeding is to determine the legitimacy of an individual's
claim to hold a particular public office or to exercise a particular right or privilege. The proceedings
may be initiated by a government agency, an interested party, or the court on its own initiative.
In a quo warranto proceeding, the petitioner must demonstrate that the respondent does
not have a legal right or authority to hold the position or exercise the right or privilege in question.
The respondent then has the opportunity to prove that they do have the legal right or authority to
hold the position or exercise the right or privilege.
If the court finds that the respondent does not have the legal right or authority, it may issue
an order requiring the respondent to relinquish the position or right or privilege. The court may
also impose other remedies or penalties, such as fines or imprisonment.
Quo warranto proceedings are used in various legal contexts, including challenges to the
validity of elections, the exercise of corporate authority, and the appointment of public officials.

2. Hold-over Principle
The hold-over principle is a legal concept that allows a public official or employee to
continue holding their position even after their term of office or employment has expired, until such
time as a replacement has been properly appointed or elected to the position.
The hold-over principle is based on the idea that it is in the public interest to ensure that
there is continuity in government and public service, and that there is no gap in the delivery of
public services or administration of government functions.
Under the hold-over principle, a public official or employee may continue to perform their
duties and exercise their authority until such time as their successor has been properly appointed
or elected to the position. This can occur even if the public official or employee's term of office or
employment has technically expired.
However, the hold-over principle does not apply indefinitely. Once a replacement has been
properly appointed or elected to the position, the hold-over period comes to an end, and the
outgoing official or employee must relinquish their position.

3. Nepotism
Nepotism is a legal concept that refers to the practice of favoring relatives or close friends
in the workplace, typically in the context of employment or the awarding of contracts. Nepotism is
generally considered unethical and can create conflicts of interest or unfair advantages for those
who benefit from it.
In many jurisdictions, including the Philippines, there are laws and regulations that prohibit
nepotism in the public sector. These laws may require public officials to disclose any relationships
with individuals who may benefit from their official actions, or may prohibit the appointment or
hiring of relatives or close friends to certain positions in government.
Under the Philippine Anti-Graft and Corrupt Practices Act (Republic Act No. 3019), public
officials are prohibited from appointing or promoting relatives within the fourth civil degree of
consanguinity or affinity to any public office or position. This includes positions in the civil service,
the military, and government-owned and controlled corporations.

27
 Similarly, the Civil Service Commission has issued rules prohibiting the appointment of
relatives within the third degree of consanguinity or affinity to any position in the civil service,
unless certain conditions are met.
Violations of nepotism laws or regulations can result in disciplinary action, including
termination of employment or removal from office. In some cases, the individuals involved may
also face criminal charges for corruption or other related offenses.

4. Next-in-rank Rule
In the case of Abad vs. Dela Cruz, the appointing authority must automatically consider
the employees next in rank as candidates for appointment. Section 21, paragraphs (2) and (3) of
the Civil Service Law provide for the next-in-rank rule:
SEC. 21. Recruitment and Selection of Employees. — . . .
(2)When a vacancy occurs in a position in the first level of the Career Service as defined
in Section 6, the employees in the department who occupy the next lower positions in the
occupational group under which the vacant position is classified, and in other functionally related
occupational groups and who are competent, qualified and with the appropriate civil service
eligibility shall be considered for promotion.
(3)When a vacancy occurs in a position in the second level of the Career Service as
defined in Section 8, the employees in the government service who occupy the next lower
positions in the occupational group under which the vacant position is classified and in other
functionally related occupational groups and who are competent, qualified and with the
appropriate civil service eligibility shall be considered for promotion. (Emphasis supplied)
"Promotion is the advancement of an employee from one position to another with an
increase in duties and responsibilities as authorized by law, and usually accompanied by an
increase in salary." Employees next in rank are those "who occupy the next lower positions in the
occupational group under which the vacant position is classified, and in other functionally related
occupational groups and who are competent, qualified and with the appropriate civil service
eligibility.
The reason behind the next-in-rank rule is to maintain the policy of merit and rewards in
the civil service. Since appointments in the civil service are based on merit and fitness, it is
assumed that the appointments of employees next in rank are equally meritorious. Appointments
that consider rank, salary grades, and seniority promote progressiveness and courtesy in the civil
service.
Still, the next-in-rank rule is a rule of preference on who to consider for promotion. The
rule does not give employees next in rank a vested right to the position next higher to theirs should
that position become vacant. Appointment is a discretionary power of the appointing authority. So
long as the appointee possesses the qualifications required by law, the appointment is valid.
Consistent with the next-in-rank rule, the appointing authority shall consider for promotion
qualified next-in-rank employees. However, there are instances when the employees next in rank
occupy positions whose salary grades are more than three (3) grades lower than that
corresponding to the vacant position. These instances should not prevent the appointing authority
from filling the vacancy, but whoever is appointed must undergo a deep selection process and
demonstrate his or her superior qualifications and competence.This is to maintain the standard of
merit and fitness for appointment in the civil service.

5. Divestment
According to Republic Act No. 6173, otherwise known as the “Code of Conduct and Ethical
Standards for Public Officials and Employees”, divestment is the transfer of title or disposal of
interest in property by voluntarily, completely and actually depriving or dispossessing oneself of
his right or title to it in favor of a person or persons other than his spouse and relatives as defined
in this Act.

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 Section 9 of this Act provides that 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. 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.

6. Official Immunity
In the US cases of Libercent vs. Aldrich and Tilton vs. Dougherty, official immunity is a
common law doctrine that protects public officers from personal liability for civil damages
sustained from wrongs alleged to have been committed while acting in furtherance of their official
duties. It rests on the theory that public officers should not face personal liability exposure for
doing their jobs. Official immunity is distinguishable from sovereign immunity. Whereas sovereign
immunity protects the government itself, official immunity protects its officers.
In the US case of Billardo vs. Appel, official immunity is not just a defense to liability, it also
confers upon public officers complete immunity from suit. In the US case of Cook vs. Nelson,
whether an officer can claim immunity under this doctrine depends on whether they are sued in
their official or individual capacity. Whereas an action brought against an officer in their official
capacity is a suit against the government, an action brought against an officer in their individual
capacity is a suit against that particular officer. In the latter case, if the suit is successful, the officer
is personally liable for any damages awarded. Official immunity therefore operates to shield public
officers from the “distraction and expense of defending themselves in the courtroom” so that they
may better serve the public.
In the case of De Lima vs. Duterte, the immunity given – be it to the President or to the
lowest government official – rested no longer on established English political theory based on the
Common Law but rather on public policy considerations. Some of the public policy considerations
in upholding official immunity of public officials are: (a) the absolute immunity of judges being
necessary to ensure judicial independence (Bradley v. Fisher); and (b) policy considerations
enunciated in Bradley for judges being equally applicable to executive officials because the civil
liability would cripple the proper administration of public affairs (Spalding v. Vilas).

Case Analysis 6
Read and discuss the important legal doctrines, principles and concepts enunciated in the
following cases.
1. Sambarani vs. COMELEC, September 15, 2004
This case zeroed in on the following concepts and principles: (i) authority or lack thereof
of DILG to appoint Barangay and SK officials; and (ii) the hold-over principle.
At the heart of the controversy is the assailed Resolution of the Commission on Elections
en banc ("COMELEC"). In this case, due to a failure of elections in eleven barangays in Lanao
del Sur, the COMELEC issued Resolution No. 5479 setting special elections on 13 August 2002
in the affected barangays in Lanao del Sur including the five barangays. The COMELEC, however,
ruled that more than thirty days had elapsed since the failed elections, and thus is repugnant to
Section 6 of the Omnibus ELection Code which provides that "special elections shall be held on
a date reasonably close to the date of the election not held, but not later than thirty days after
cessation of the cause of such postponement." Instead, the COMELEC left to the Department of
Interior and Local Government ("DILG") the process of appointing the Barangay Captains and
Barangay Kagawads as well as the Sangguniang Kabataan ("SK") Chairmen and SK Kagawads
in these barangays "in accordance with the Local Government Code of 1991 and other related
laws on the matter.
In the case at bar, Petitioners contend that the COMELEC gravely abused its discretion in
directing the DILG to proceed with the appointment of Barangay Captains and Barangay
Kagawads as well as SK chairmen and SK Kagawads in the four barangays. Petitioners argue
that as the incumbent elective punong barangays in the four barangays, they should remain in
office in a hold- over capacity until their successors have been elected and qualified.

29
 Such contention of the Petitioners were echoed by the High Court. Section 5 of Republic
Act No. 9164 ("RA 9164")19 provides:
Sec. 5. Hold Over. – All incumbent barangay officials and sangguniang kabataan officials
shall remain in office unless sooner removed or suspended for cause until their successors shall
have been elected and qualified. The provisions of the Omnibus Election Code relative to failure
of elections and special elections are hereby reiterated in this Act.
RA 9164 is now the law that fixes the date of barangay and SK elections, prescribes the
term of office of barangay and SK officials, and provides for the qualifications of candidates and
voters for the SK elections.
As the law now stands, the language of Section 5 of RA 9164 is clear. It is the duty of the
Court to apply the plain meaning of the language of Section 5. Since there was a failure of
elections in the 15 July 2002 regular elections and in the 13 August 2002 special elections,
petitioners can legally remain in office as barangay chairmen of their respective barangays in a
hold-over capacity. They shall continue to discharge their powers and duties as punong barangay,
and enjoy the rights and privileges pertaining to the office. True, Section 43(c) of the Local
Government Code limits the term of elective barangay officials to three years. However, Section
5 of RA 9164 explicitly provides that incumbent barangay officials may continue in office in a hold
over capacity until their successors are elected and qualified.
Section 5 of RA 9164 reiterates Section 4 of RA 6679 which provides that "[A]ll incumbent
barangay officials xxx shall remain in office unless sooner removed or suspended for cause xxx
until their successors shall have been elected and qualified." Section 8 of the same RA 6679 also
states that incumbent elective barangay officials running for the same office "shall continue to
hold office until their successors shall have been elected and qualified."
The application of the hold-over principle preserves continuity in the transaction of official
business and prevents a hiatus in government pending the assumption of a successor into office.
As held in Topacio Nueno v. Angeles, cases of extreme necessity justify the application of the
hold-over principle.

2. Laurel V vs. CSC, October 28, 1991

This case zeroed in on the following concepts and principles: (i) the rule on nepotism; (ii)
classes of position which are determined by the nature of the position; (iii) prohibition on a person
appointed to a non- career position to perform duties belonging to career position; (iv) the meaning
of “Designation”; and (v) who may file a complaint against government officials or employer.
Briefly, Petitioner, the duly elected Governor of the Province of Batangas, upon assuming
office on 3 March 1980, appointed his brother, Benjamin Laurel, as Senior Executive Assistant in
the Office of the Governor, a non-career service position which belongs to the personal and
confidential staff of an elective official. Following a resignation in the position of Prov. Administrator
and allegedly for lack of qualified applicants and so as not to prejudice the operation of the
Provincial Government, petitioner designated his brother, Benjamin Laurel, as Acting Provincial
Administrator effective 2 January 1981 and to continue until the appointment of a regular
Provincial Administrator, unless the designation is earlier revoked. private respondent Sangalang
wrote a letter to the Civil Service Commission 4 to bring to its attention the "appointment" of
Benjamin Laurel as Provincial Administrator of Batangas by the Governor, his brother. He alleges
therein that: (1) the position in question is a career position, (2) the appointment violates civil
service rules, and (3) since the Governor authorized said appointee to receive representation
allowance, he violated the Anti-Graft and Corrupt Practices Act. He then asks that the matter be
investigated.

As such the Court decided on the issues that bombard said appointment, thus:
(i) The position of Provincial Administrator is embraced within the civil service. The position
of Provincial Administrator is embraced within the Career Service under Section 5 of P.D. No. 807
as evidenced by the qualifications prescribed for it in the Manual of Position Descriptions. It may
be added that the definition of its functions and its distinguishing characteristics as laid down in

30
the Manual render indisputable the above conclusion that the subject position is in the career
service which, per Section 5 of P.D. No. 807, is characterized by (a) entrance based on merit and
fitness to be determined as far as practicable by competitive examinations, or based on highly
technical qualifications, (b) opportunity for advancement to higher career positions, and (c)
security of tenure. More specifically, it is an open career position, for appointment to it requires
prior qualification in an appropriate examination. It falls within the second major level of positions
in the career service, per Section 7 of P.D. No. 807.
(ii) It is the nature of the position which finally determines whether a position is primarily
confidential, policy determining or highly technical. Executive pronouncements can be no more
than initial determinations that are not conclusive in case of conflict. And it must be so or else it
would then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat,
the protection of Section 4, Article XII of the Constitution." This rule stands despite the third
paragraph of Section 1 of P.D. No. 868 which pertinently reads: " . . . and only the President may
declare a position policy-determining, highly technical or primarily confidential, upon
recommendation of the Civil Service Commission, the Budget Commission and the Presidential
Reorganization Commission." For the reason that the latter may be considered merely as the
initial determination of the Executive, which in no case forecloses judicial review. A rule that
exclusively vests upon the Executive the power to declare what position may be considered
policy-determining, primarily confidential, or highly technical would subvert the provision on the
civil service under the 1973 Constitution which was then in force at the time the decree was
promulgated. Specifically, Section 2 of Article XII of said Constitution makes reference to positions
which are policy-determining, primarily confidential, or highly technical in nature," thereby leaving
no room for doubt that, indeed, it is the nature of the position which finally determines whether it
falls within the above mentioned classification. The 1987 Constitution retains this rule when in
Section 2 of Article IX-C, it clearly makes reference to "positions which are policy-determining,
primarily confidential, or highly technical."

(iii) Persons appointed to a non-career position shall not perform the duties belonging to
a career position. The Court in this case likewise agree with the public respondent that there is
one further obstacle to the occupation by Benjamin Laurel of the position of Provincial
Administrator. At the time he was designated as Acting Provincial Administrator, he was holding
the position of Senior Executive Assistant in the Office of the Governor, a primarily confidential
position. He was thereafter promoted as Civil Security Officer, also a primarily confidential
position. Both positions belong to the non-career service under Section 6 of P.D. No. 807. As
correctly ruled by the public respondent, petitioner cannot legally and validly designate Benjamin
Laurel as Acting Provincial Administrator, a career position, because Section 24 (f of R.A. 2260
provides that no person appointed to a position in the non-competitive service (now non-career)
shall perform the duties properly belonging to any position in the competitive service (now career
service).
(iv) The rule on appointments in career-service. Being embraced in the career service, the
position of Provincial Administrator must, as mandated by Section 25 of P.D. No. 807, be filled up
by permanent or temporary appointment. The first shall be issued to a person who meets all the
requirements for the position to which he is appointed, including the appropriate eligibility
prescribed. 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 except the appropriate civil service eligibility, provided, however, that
such temporary appointment shall not exceed twelve months, but the appointee may be replaced
sooner if a qualified civil service eligible becomes available.
(v) Prohibitive mantle on nepotism would include designation. Petitioner, however,
contends that since what he extended to his brother is not an appointment, but a DESIGNATION,
he is not covered by the prohibition. Public respondent disagrees, for: "By legal contemplation,
the prohibitive mantle on nepotism would include designation, because what cannot be done
directly cannot be done indirectly." The Court did not sustain Petitioner’s view. According to the
former, his specious and tenuous distinction between appointment and designation is nothing
more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or a last-
ditch maneuver to cushion the impact of its violation. The rule admits no distinction between
appointment and designation. Designation is also defined as "an appointment or assignment to a
particular office"; and "to designate" means "to indicate, select, appoint or set apart for a purpose
or duty." In Borromeo vs. Mariano, this Court said: " . . . All the authorities unite in saying that the

31
term 'appoint' is well-known in law and whether regarded in its legal or in its ordinary acceptation,
is applied to the nomination or designation of an individual .
Nuance: "Designation may also be loosely defined as an appointment because it likewise
involves the naming of a particular person to a specified public office. That is the common
understanding of the term. However, where the person is merely designated and not appointed,
the implication is that he shall hold the office only in a temporary capacity and may be replaced
at will by the appointing authority. In this sense, the designation is considered only an acting or
temporary appointment, which does not confer security of tenure on the person named." It seems
clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be
differentiated from appointment.
(vi) Complaints against government officials or employers may be filed by any private
citizen. Any citizen of the Philippines may bring that matter to the attention of the Civil Service
Commission for appropriate action conformably with its role as the central personnel agency to
set standards and to enforce the laws and rules governing the selection, utilization, training and
discipline of civil servants, with the power and function to administer and enforce the constitutional
and statutory provisions on the merit system. Moreover, Section 37 of the decree expressly allows
a private citizen to directly file with the Civil Service Commission a complaint against a
government official or employee, in which case it may hear and decide the case or may deputize
any department or agency or official or group of officials to conduct an 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. This provision gives teeth to the constitutional
exhortation that a public office is a public trust and public officers and employees must at all times
be, inter alia, accountable to the people. An ordinary citizen who brings to the attention of the
appropriate office any act or conduct of a government official or employee which betrays the public
interest deserves nothing less than the praises, support and encouragement of society. The
vigilance of the citizenry is vital in a democracy.
3. City Mayor Debulgado vs. CSC, September 26, 1994
I. All appointments, whether original or promotional in nature,in the national, provincial,
city and municipal governments or in any branch of instrumentality thereof,including government-
owned or controlled corporations, made in favor of a relative within the third degree either of
consanguinity or of affinity 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.
But it does not apply when the appointment happened before the marriage of the
appointee and the appointing authority.

II. There is no need for notice and hearing in the act of recall on appointment.
The Commission, in approving or disapproving an appointment, only examines the
conformity of the appointment with applicable provisions of law and whether the appointee
possesses all the minimum qualifications and none of the disqualifications. At all events, as the
Solicitor General has noted, petitioner Victoria was afforded an opportunity to be heard when she
filed a motion for reconsideration with the Commission and there challenged the disapproval by
the Commission.
III. Under its own rules and regulations, the Commission may review motu proprio
personnel actions involving the position of a Division Chief or above, such as the position of
General Services Officer. The court holds that the respondent Commission had authority, indeed
the duty, to recall on its own initiative the erroneous initial approval of the promotional appointment
extended to petitioner Victoria, and to review the same de novo. Thus even if the letter written by
the Congressman was not subscribed under oath, the Commission could still act thereon.
IV. Section 49 of P.D. No. 807 does not suggest that designation should be differentiated
from appointment.Reading this section with Section 25 of said decree, career service positions
may be filled up only by appointment, either permanent or temporary; hence a designation of a
person to fill it up because it is vacant, is necessarily included in the term appointment, for it
precisely accomplishes the same purpose.

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 The Petitioner here promoted his wife to a higer position through appointment.His wife has
been in the government service for 30 years before such promotional appointment.
The respondent commission recalled the approval issued by Director Escobia and
disapproved the promotion of petitioner.
The basic contention of petitioners is that the prohibition against nepotic appointments is
applicable only to original appointments and not to promotional appointments. They believe that
because petitioner Victoria was already in the service of the City Government before she married
petitioner Mayor, the reason behind the prohibition no longer applied to her promotional
appointment.

The prohibitory norm against nepotism in the public service is set out in Section 59, Book
V of the Revised Administrative Code of 1987 (also known as E.O. No. 292). Section 59 reads as
follows:
"Sec. 59. Nepotism — (1) All appointments in the national, provincial, city and municipal
governments or in any branch of 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 employment or retention
therein of both husband and wife may be allowed.
A textual examination of Section 59 at once reveals that the prohibition was cast in
comprehensive and unqualified terms.
First, it explicitly covers "all appointments", without seeking to make any distinction
between differing kinds or types of appointments.
Second, Section 59 covers all appointments to the national, provincial, city and municipal
governments,as well as any branch or instrumentality thereof and all government owned or
controlled corporations.
Third, there is a list of exceptions set out in Section 59 itself.
Section 59, Book V, E.O. No. 292 means exactly what it says in plain and ordinary
language: it refers to "all appointments" whether original or promotional in nature. The public
policy embodied in Section 59 is clearly fundamental in importance, and the Court has neither
authority nor inclination to dilute that important public policy by introducing a qualification here or
a distinction there.

4. Panis vs. CSC, February 2, 1994

1) The "next in rank" rule specifically applied only in cases of promotion. The instant
controversy, however, involves a new office and a position created in the course of a valid
reorganization. Under the law, a vacancy not filled by promotion may be filled by transfer of
present employees in the government service, by reinstatement, by reemployment of those
separated from the service, and appointment of outsiders who have appropriate civil service
eligibility, but not necessarily in this order (P.D. 807, Art. VIII, Sec. 19 (5); E.O. 292, Bk. V, Sec.
21 (5).

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 2)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 promotion, the person holding the position next in rank thereto "shall be
considered for promotion" (P.D. 807, Sec. 19 (3); E.O. 292, Bk. V, Sec. 20 (3). 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.
2) An appointment, whether to a vacancy or to a newly created position, is essentially
within a discretionary power of whomsoever it is vested. Once a candidate possesses the
minimum qualities required by law, sufficient discretion, if not plenary, is granted to the appointing
authority. Indeed, whom to appoint among those qualified is an administrative question involving
considerations of wisdom for the best interest of the service which only the appointing authority
can decide.
An Ordinance No. 1216 was passed to amend the Cebu City Hospital to CCMC for some
purpose and departments and offices therein were reorganized. Both petitioner and private
responded are qualified to the position. Private respondent was appointed as Assistant Chief of
Hospital for Administration. The petitioner protested.
The petitioner argued that he should have been the one appointed because he was next
in rank to the contested position and that he had been with CCMC since 1961 as compared to
private respondent.
Be that as it may, the "next in rank" rule specifically applies only in cases of promotion.
The instant controversy, however, involves a new office and a position created in the course of a
valid reorganization. Under the law, a vacancy not filled by promotion may be filled by transfer of
present employees in the government service, by reinstatement, by reemployment of those
separated from the service, and appointment of outsiders who have appropriate civil service
eligibility, but not necessarily in this order. It cannot be said that private respondent was an
outsider. Although directly employed by the City Health Department, she actually worked at the
CCMC prior to her appointment to the subject position. Besides, even if she was an outsider, the
law does not prohibit the employment of persons from the private sector so long as they have the
appropriate civil service eligibility.
5. Azarcon vs. Sandiganbayan, February 26, 1997
DOCTRINE(1):Jurisdiction of the court (SANDIGANBAYAN) must appear clearly from the
statute law or it will not be held to exist. It cannot be presumed or implied.
DOCTRINE(2): Public Officers are any person who, by direct provision of the law, popular
election, 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 classes, shall be deemed to be a public officer.
(1) Sandiganbayan does not have jurisdiction over a private individual charged with
malversation of public funds.
Sec. 4 of PD 1606 provides for the jurisdiction of the Sandiganbayan. It was specified
therein that the only instances when the Sandiganbayan will have jurisdiction over a private
individual is when the complaint charges the private individual either as a co-principal, accomplice
or accessory of a public officer or employee who has been charged with a crime within its
jurisdiction.
In the said case, the information does not charge petitioner Azarcon of becoming a co-
principal, accomplice or accessory to a public officer committing an offense under the
Sandiganbayan’s jurisdiction. When the information charged the petitioner and his co-accused
before the Sandiganbayan for malversation of public funds or property, the prosecution was, in
fact, charging two private individuals without any public officer being similarly charged as a co-
conspirator. Thus, unless petitioner be proven a public officer, the Sandiganbayan will have no
jurisdiction over the crime charged.

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 (2) The accused did not become a public officer and is not subject to the graft court's
jurisdiction as a consequence of such designation by the BIR.
It is true that Sec. 206 of the NIRC, as pointed out by the prosecution, authorizes the BIR
to effect a constructive distraint by requiring “any person to preserve a distrained property,” thus:
The constructive distraint of personal property shall be effected by requiring the taxpayer
or any person having possession or control of such property to sign a receipt covering the property
distrained and obligate himself to preserve the same intact and unaltered and not to dispose of
the same in any manner whatever without the express authority of the Commissioner.
Where the language of a statute is clear and unambiguous, the law is applied according
to its express terms, and interpretation would be resorted to only where a literal interpretation
would be either impossible or absurd or would lead to an injustice. The language of the foregoing
provision is clear.
The Supreme Court ruled in this case that there is no provision in the NIRC constituting
such person a public officer by reason of such requirement. The BIR’s power authorizing a private
individual to act as a depositary cannot be stretched to include the power to appoint him as a
public officer.
Hence, the accused did not become a public officer and is, therefore, not subject to the
graft court's jurisdiction as a consequence of such designation by the BIR.
6. Barrozo vs. CSC, June 25 1991
DOCTRINE: the appointing authority is not required to appoint the one next-in-rank to fill
a vacancy. He is allowed to fill it also by the transfer of an employee who possesses civil service
eligibility.
The Next-in-rank rule provides that one who is next in rank is entitled to preferential
consideration for promotion to the higher vacancy but it does not necessarily follow that he and
no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a
ministerial duty on the appointing authority to promote such person to the next higher position.
The ruling was the Commission resolved to dismiss as it hereby dismisses the instant
appeal of Teodoro Barrozo for lack of merit. Accordingly, the CSC-CAR decision dated November
22, 1989 is affirmed insofar as the revocation of the appointment of Barrozo is concerned but sets
aside said decision insofar as subjecting the contestants to screening and evaluation by the
Personnel Selection Board. It is hereby directed that Valentino L. Julian be appointed to the
position of City Engineer of Baguio.

SUSPENSION
The Supreme Court has established a clear-cut distinction between suspension as
preventive measure and suspension as penalty. In the case of Quimbo vs. Acting
Ombudsman Gervacio, August 09, 2005, the highest court emphasized the distinction, to
wit:
Preventive suspension is merely a preventive measure, a preliminary step in an
administrative investigation. The purpose of the suspension order is to prevent the accused from
using his position and the powers and prerogatives of his office to influence potential witnesses
or tamper with records which may be vital in the prosecution of the case against him. If after such
investigation, the charge is established and the person investigated is found guilty of acts
warranting his suspension or removal, then he is suspended, removed or dismissed. This is the
penalty.
Clearly, service of the preventive suspension cannot be credited as service of penalty. To
rule otherwise is to disregard above-quoted Sections 24 and 25 of the Administrative Code of
1987 and render nugatory the substantial distinction between, and purposes of imposing
preventive suspension and suspension as penalty.
In the case of Aldovino vs. COMELEC, December 23, 2009, the court explained the nature
of preventive suspension, to wit:

35
 “Preventive suspension – whether under the Local Government Code, the Anti Graft and
Corrupt Practices Act, or the Ombudsman Act – is an interim remedial measure to address the
situation of an official who have been charged administratively or criminally, where the evidence
preliminarily indicates the likelihood of or potential for eventual guilt or liability.
Preventive suspension is imposed under the Local Government Code "when the evidence
of guilt is strong and given the gravity of the offense, there is a possibility that the continuance in
office of the respondent could influence the witnesses or pose a threat to the safety and integrity
of the records and other evidence." Under the Anti-Graft and Corrupt Practices Act, it is imposed
after a valid information (that requires a finding of probable cause) has been filed in court, while
under the Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the evidence
of guilt is strong; and (a) the charge involves dishonesty, oppression or grave misconduct or
neglect in the performance of duty; or (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.
Notably in all cases of preventive suspension, the suspended official is barred from
performing the functions of his office and does not receive salary in the meanwhile, but does not
vacate and lose title to his office; loss of office is a consequence that only results upon an eventual
finding of guilt or liability.
Preventive suspension is a remedial measure that operates under closely controlled
conditions and gives a premium to the protection of the service rather than to the interests of the
individual office holder. Even then, protection of the service goes only as far as a temporary
prohibition on the exercise of the functions of the official’s office; the official is reinstated to the
exercise of his position as soon as the preventive suspension is lifted. Thus, while a temporary
incapacity in the exercise of power results, no position is vacated when a public official is
preventively suspended.”
In the case of Hon. Gloria vs. CA, April 21, 1999, the court said that “[t]here are thus two
kinds of preventive suspension of civil service employees who are charged with offenses
punishable by removal or suspension: (1) preventive suspension pending investigations (§51)
and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority
is suspension or dismissal and, after review, the respondent is exonerated (§ 47(4)).” There is no
right to compensation for preventive suspension pending investigation even if employee is
exonerated.
In the case of Bolastig vs. Sandiganbayan, August 4, 1994, the court ruled that “[t]he
duration of preventive suspension is thus coeval with the period prescribed for deciding
administrative disciplinary cases. If the case is decided before ninety days, then the suspension
will last less than ninety days, but if the case is not decided within ninety days, then the preventive
suspension must be up to ninety days only. Similarly, as applied to criminal prosecutions under
Republic Act No. 3019, preventive suspension will last for less than ninety days only if lthe case
is decided within that period; otherwise, it will continue for ninety days. The duration of preventive
suspension will, therefore, vary to the extent that it is contingent on the time it takes the court to
decide the case but not on account of any discretion lodged in the court, taking into account the
probability that the accused may use his office to hamper his prosecution.”

Q and A 4
Is the preventive suspension of an elected public official an interruption of his term of office
for purposes of the three-term limit rule under Section 8, Article X of the Constitution and Section
43(b) of Republic Act No. 7160 (RA 7160, or the Local Government Code)?
No. Preventive suspension is not a term-interrupting event as the elective officer’s
continued stay and entitlement to the office remain unaffected during the period of suspension,
although he is barred from exercising the functions of his office during this period.
Authority of the Ombudsman to Impose Preventive Suspension
R.A. 6770, the Ombudsman Law, grants the Office of the Ombudsman the statutory power
to conduct administrative investigations. Thus, Section 19 of said law provides:
Sec. 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;

36
 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.
Sec. 21 of R.A. 6770 names the officials subject to the Ombudsman's disciplinary
authority:
Sec. 21. Officials 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.
In the case of Mayor Garcia vs. Hon. Mojica, September 10, 1999, the court reminded us
that the power of the Office of the Ombudsman to preventively suspend an official subject to its
administrative investigation is provided by specific provision of law. Under Section 24 of R.A.
6770 —
Sec. 24. Preventive 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 Court clearly explained:
“x x x [T]he preventive suspension shall continue until the case is terminated by the Office
of the Ombudsman but not more than six 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.
We have previously interpreted the phrase "under his authority" to mean that the
Ombudsman can preventively suspend all officials under investigation by his office, regardless
of the branch of government in which they are employed, excepting of course those removable
by impeachment, members of Congress and the Judiciary.”
Moreover, the court further said that “[t]he determination of whether or not the evidence of
guilt is strong as to warrant preventive suspension rests with the Ombudsman. The discretion as
regards the period of such suspension also necessarily belongs to the Ombudsman, except that
he cannot extend the period of suspension beyond that provided by law.”

Q and A 5
Has the Ombudsman under R.A. No. 6770, otherwise known as the Ombudsman Act of
1989, been divested of his or her authority to conduct administrative investigations over local
elective officials by virtue of the subsequent enactment of R.A. No. 7160, otherwise known as
the Local Government Code of 1991?
No. The authority of the Ombudsman over local officials pursuant to RA 6770 is not
removed by LG Code of 1991.
There is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the
specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other.
Well settled is the rule that repeals of laws by implication are not favored, 16 and that
courts must generally assume their congruent application. The two laws must be absolutely
incompatible, and a clear finding thereof must surface, before the inference of implied repeal may
be drawn. The rule is expressed in the maxim, interpretare et concordare legibus est optimus

37
interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as
to form a uniform system of jurisprudence. The fundament is that the legislature should be
presumed to have known the existing laws on the subject and not to have enacted conflicting
statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be
exerted in order to harmonize and give effect to all laws on the subject.
The authority to conduct administrative investigation and to impose preventive suspension
over elective provincial or city officials was at that time entrusted to the Minister of Local
Government until it became concurrent with the Ombudsman upon the enactment of R.A. No.
6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant. The Local
Government Code of 1991 (R.A. No. 7160), in fine, did not effect a change from what already
prevailed, the modification being only in the substitution of the Secretary (the Minister) of Local
Government by the Office of the President.

Hagad v. Gozo-Dadole
VACANCY
There is a vacancy when an office is empty and without a legally qualified incumbent
appointed or elected to it with a lawful right to exercise its powers and perform its duties. There
can be no appointment to a non-vacant position (Ateneo Political Law Reviewer and Memory
Aid).
MODES OF TERMINATION OF OFFICIAL RELATIONS
The different modes of terminating official relations may be classified into natural causes,
acts or neglect of officer and acts of the government and people.
Natural Causes
1. Expiration of the Term or Tenure of Office
2. Reaching the Age Limit (Retirement)
3. Death or Permanent Disability
Acts / Neglect of Officer
1. Resignation
2. Acceptance of an Incompatible Office
3. Abandonment of Office
4. Prescription of Right to Office
Acts of the Government or People
1. Removal
2. Impeachment
3. Abolition of Office
4. Conviction of a Crime
5. Recall

Task 11
Cite a case explaining the nature of each mode of termination of official relations.
1. Expiration of the Term or Tenure of Office
Alba vs. Hon. Evangelista G.R. Nos. L-10360 and L-10433 January 17, 1957
A tenure is cenned as when a public official can have the right to hold office. The expiration
of a term as an acting vice-mayor may be fixed by Congress or legislature.
2. Reaching the Age Limit (Retirement)

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 ANINON vs GSIS, G.R. No. 190410, April 10, 2019
Retirement laws must be liberally construed as they are social legislations.
3. Death or Permanent Disability
GSIS VS CA, G.R. No. 128523 September 28, 1998
4. Resignation
The resignation of an incumbent is defined as some form of express or implied intention
to surrender, renounce, and relinquish the office.
This is made final with the acceptance by a competent authority. The following requisites
are established: 1) intention to relinquish a Part of the term 2) act of relinquishment 3) acceptance
by the proper authority.
Republic vs Singun, GR NO. 149356 March 14, 2008

5. Acceptance of an Incompatible Office

Zandueta vs. De la Costa. No. L-46267, 66 Phil 615 Nov 28, 1938
When a public officer voluntarily accepts an appointment to an office newly created
through reorganization, they are deemed to abandon their previous office. By taking in oath of
office and doing functions necessary for that office, it is already deemed as a new appointment.

6. Abandonment of Office
Adiong vs CA, G.R. No. 136480 December 4, 2001
Abandonment may also mean that a public official did an acquiescence for his wrongful
removal or discharge, for example, after a summary removal, an unreasonable delay by an officer
illegally removed may vindicate his right

7. Prescription of Right to Office

Effect of failure to assume office: vacates the office and terminates relations
Section 11. Failure to assume office of the Omnibus Election Code – The office of any
official elected who fails or refuses to take his oath of office within six months from his
proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his
control.

Unabia v. Mayor
Facts: On June 16, 1953, a foreman was removed and replaced by the city mayor without
investigation and cause. On July 1, 1954, he filed quo warranto to be reinstated.

Held: He appears to have abandoned his position because it took him a year and 15 days
to file quo warranto. But since the law does not fix a period for abandonment, prescription of action
is the more appropriate mode on how his official relations were terminated

8. Removal
Manalang v. Quitoriano
Removal entails ouster of an incumbent before the expiration of his term. It implies that
the office exists after the ouster. It may be express or implied. Implied if –
a. Appointment of another officer

39
 b. Transfer to another office
c. Demotion
d. Reassignment
Power to appoint includes power to remove, where there is no fixed term.
Lacson v. Roque
Limitations on the power to remove – A. Purely executive officials with no fixed term are
removable anytime with or without cause
Note: These are the persons who served at the pleasure of the appointing authority. But
it is a misnomer to say that with or without cause. There is cause and it is the loss of confidence.
B. Civil service employees cannot be removed or suspended except for cause as provided for by
law. “For cause” means reasons which the law and sound public policy recognize as sufficient
ground for removal.
9. Abolition of Office
Manalang v. Quitoriano
Facts: The Placement Bureau was expressly abolished by law organizing its replacement,
the National Employment Service. Manalang, the Bureau Director was expected to be appointed
Commissioner but Labor Secretary Quitoriano was appointed. Manalang argued there is no
abolition of office but a mere fading away of the title Placement Bureau and all its functions are
continued by the National Employment Service. Hence, he continues to occupy it by operation of
law. As such, the appointment of Quitoriano is illegal because it amounted to his removal from
office without cause.
Held: Removal presupposes that the officer was ousted from office prior to term end and
that the office still exists after the ouster of the occupant. It is not the case in point. A law expressly
abolished the Placement Bureau. Thus, the Office of the Director is impliedly abolished because
it cannot exist without the bureau. The abolition of the office likewise abolished the right of the
occupant to stay. There is no removal, but abolition by express legislative act.
Note: SC said that there was an express abolition provided for under the law. Manalang
was not terminated but his office was abolished. When you say transfer, that presupposes from
one place to another. It cannot be from one place to the same place, otherwise it is not transfer
anymore. Granting that Manalang was merely transferred, where is now the office? It is gone.
Facundo v. Pabalan & Ulep vs Carbonell
If there is no evidence of bad faith in the abolition of office, the termination does not result
in removal, but a result of abolition.
Cruz v. Primicias
Abolition of office in bad faith is null and void hence it results in unlawful termination.
10.Conviction of a Crime
Conviction of criminal offenses is not even necessary for removal.
San Luis v. CA
Notoriety and habit are sufficient ground for removal pursuant to the two–fold test:
1. Whether it is generally known as universally believed to be true or manifest to the world
that the public officer committed the acts imputed against him.

2. Whether he had contracted the habit for any of the enumerated misdemeanor.

Note: Take note of notoriety and habit. If these concur, you can be removed from public
service even if there is no criminal conviction. It is a matter of perception.

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 11.Impeachment
Section 2, Article XI, 1987 Constitution
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.

Gonzales v. OP
Betrayal of public trust refers to any form of violation of oath of office even if it is not a
criminally punishable offense. Too broad, thus SC clarified this definition. It refers to "acts which
are just short of being criminal but constitute gross faithlessness against public trust, tyrannical
abuse of power, inexcusable negligence of duty, favouritism, and gross exercise of discretionary
powers"
Acts that constitute betrayal of public trust as to warrant removal from office may be less
than criminal but must be attended by bad faith and of such gravity and seriousness as the other
grounds for impeachment.

12. Recall
By this procedure, an elective official may be removed at any time during his term by the
vote of the people at an election called for such purpose
Note: Under the law, you need not be a voter for the recall election, but you can sign a
petition for recall. Only my observation but do not bother about recall.
Election on recall
Official sought to be recalled is automatically considered a candidate. He is not allowed to
resign while the recall process is in progress. If the incumbent official will win the recall election It
means that the recall election failed since it has been shown that the people still have their trust
and confidence on the incumbent.
If somebody else wins the recall election. Then it means that the recall election succeeded,
since it has been shown that the people lost their trust and confidence on the incumbent.

Limitations on recall
1. A local elective official may be subject of recall only once during his term of office for
loss of confidence
2. No recall within one year from date of assumption or before a regular local election.
“Regular local election”
Angobung v. Comelec
For the time bar to apply, the approaching regular local election must be one where the
position of the official to be recalled will be contested and filled by the electorate.
Paras v. Comelec
The prohibition is due to the proximity of the next regular election where the electorate can
choose a replacement with longer tenure than the successor elected through recall. Recall
election is potentially disruptive of the normal working of a local government, aside from additional
expenses.

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SPECIAL LAWS

Task 12
Read the Code of Conduct and Ethical Standards for Public Officials and Employees (RA
No. 6713) and the Anti-Red Tape Act of 2007 (RA No. 9485). Thereafter, write a 1000-word written
report on the following statutes. Please follow the format below:
A. Important Features
B. Insights and Reaction; and
C. Conclusion.

On Transparency and Accountability

An Analysis of RA No. 6713 and RA No. 9485

Significant Features
The Code of Conduct and Ethical Standards for Public Officials and Employees (RA No.
6713) sets the ethical standards and guidelines for the behavior of all public officials and
employees, whether elected or appointed. Some of the important features of RA No. 6713 include:
First, prohibition on solicitation and acceptance of gifts. Public officials and employees are
not allowed to solicit or receive gifts, favors, or anything of monetary value from any person or
entity in connection with their official duties. Second, they are required to submit a declaration of
their assets, liabilities, and net worth, as well as those of their spouse and unmarried children
under 18 years old. Third, the prohibition on engaging in business or other private activities that
conflict with official duties. Which means that they are prohibited from engaging in any business
or private activities that may conflict with their official duties or may be detrimental to the public
interest.
In addition, public officials and employees are prohibited from using their official position
to obtain any personal benefit, gain, or advantage. Lastly, public officials are required to prioritize
the public interest over their personal interest in the performance of their official duties. Moreover,
the Anti-Red Tape Act of 2007 (RA No. 9485) likewise aims to improve the delivery of government
services to the public by reducing bureaucratic red tape and corruption. Among its pertinent
provisions include establishment of the Citizen's Charter. Government agencies are required to
prepare and publish a Citizen's Charter that contains the procedures and requirements for
obtaining government services.
Government agencies are also required to streamline their procedures and reduce the
processing time for government transactions and the prohibition on fixers is also mandated.
Fixers, or individuals who offer to expedite government transactions for a fee, are prohibited.
Agencies are encouraged to use information technology to automate and simplify their
procedures. The Civil Service Commission is tasked with monitoring and evaluating the
compliance of government agencies with the provisions of the law.

Philippine History of Corruption

Corruption has been a longstanding problem in the Philippines, and there have been many
instances of corrupt public officials throughout Philippine history.
The dictatorship of Ferdinand Marcos from 1965 to 1986 was characterized by widespread
corruption and embezzlement of public funds. Marcos and his associates were accused of

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amassing billions of dollars in ill-gotten wealth, and this corruption contributed to the economic
decline of the Philippines.

In addition, Joseph Estrada was elected president in 1998 on a platform of anti-corruption,

but his administration was mired in scandals and allegations of corruption. Aside from this, the
pork barrel scam, also known as the Napoles scandal, involved the embezzlement of public funds
by lawmakers and government officials through the Priority Development Assistance Fund
(PDAF) and the Disbursement Acceleration Program (DAP).
Not too long ago, while President Rodrigo Duterte has vowed to root out corruption in
government, there have been allegations of corruption and irregularities within his administration.
For example, in 2020, the Department of Health was embroiled in a scandal involving the
purchase of overpriced medical supplies and equipment.

Insights and Reaction

Both laws help prevent corruption and ensure that public officials and employees act in
the best interest of the public.
The reduction of bureaucratic red tape and improvement of government services, Filipinos
may experience faster and more convenient processing of government transactions, such as
applying for permits and licenses, paying taxes, and accessing public services. RA 6713 promotes
transparency and accountability which reduces the likelihood of conflicts of interest and corruption
among government officials. This can lead to greater public trust in government institutions.
When there is reduced corruption, ordinary citizens will be able to put more trust to the
public servants in government service. With greater public participation in governance, it allows
Filipinos to voice their opinions and contribute to the improvement of government services.
Trust in the government is a crucial element of a healthy and functioning democracy.
Unfortunately, in the Philippines, trust in government institutions has been eroded by a long history
of corruption and inefficiency. Rebuilding trust in the government will require a multifaceted
approach that addresses the root causes of distrust and engages the public in the process of
governance.
Corruption is one of the biggest reasons why Filipinos do not trust their government. To
address this, the government must take a strong stance against corruption, and hold corrupt
officials accountable for their actions. This can be done through strict enforcement of anti-
corruption laws, as well as through the establishment of transparent and accountable institutions
that promote good governance.
The government must also be transparent and accountable to the public, and ensure that
citizens have access to information about government policies and decisions. This can be done
through the establishment of open data policies, the strengthening of freedom of information laws,
and the promotion of public participation in government, which is the aim of RA No. 6713.
Another way to build trust in the government is to improve the quality and accessibility of
government services. This can be achieved by investing in infrastructure and technology,
streamlining bureaucratic processes, and ensuring that public services are delivered in a timely
and efficient manner, as stipulated in the provisions of RA No. 9485.
Conclusion
Rebuilding trust in the government will require a sustained and concerted effort on the part
of government officials, civil society organizations, and citizens themselves. By working together
to combat corruption, improve government services, increase transparency and accountability,
strengthen democracy, and engage the public, Filipinos can begin to rebuild trust in their
government and create a more just and equitable society for all.

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 Indeed, the implementation and enforcement of both laws are crucial in achieving a
government that is transparent, accountable, and responsive to the needs of the Filipino people.
It is important for public officials and employees to uphold the ethical standards set by RA No.
6713 and for government agencies to comply with the provisions of RA No. 9485 to ensure that
the public receives the best possible service from their government.

“The business of a law school is not sufficiently described when you merely say that it is
to teach law or to make lawyers; it is to teach law in the grand manner, and to make great
lawyers.”
-Supreme Court Justice Oliver Wendell Holmes, Jr.

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