POLITICAL LAW REVIEWER TABLE of CONTENTS

LAW ON PUBLIC OFFICERS

Table of Contents

Chapter I. Public Office and Officers........... 234 Election .................................................. 248

A. Public Office.......................................... 234 C. Appointment.......................................... 248
1. Definition........................................... 234 1. Definition ........................................... 248
2. Purpose ............................................ 235 2. Nature of Power to Appoint ............ 248
3. Nature ............................................... 235 3. Classification of Appointments ...... 248
4. Elements........................................... 235 4. Steps in Appointing Process .......... 249
5. Public Office v. Public Employment 5. Presidential Appointees .................. 249
235 D. Qualification Standards and
6. Public Office v. Public Contract ..... 236 Requirements under the Civil Service Law250
7. No vested right to public office ...... 236 1. Qualification Standards................... 250
8. Public Office is not Property .......... 236 2. Political Qualifications for an Office
9. Creation of Public Office ................ 236 250
10. Methods of Organizing Public 3. No Property Qualifications ............. 250
4. Citizenship ........................................ 250 233
Offices 237
5. Effect of Removal of Qualifications

LAW ON PUBLIC OFFICERS

11. Modification and Abolition of Public
Office 237 During the Term ........................................ 251
12. Estoppel in Denying Existence of 6. Effect of Pardon upon the
Office 237 Disqualification to Hold Public Office
B. Public Officer ........................................ 237 251
1. Definition........................................... 237 E. Discretion of Appointing Official ......... 251
2. A Person Cannot be Compelled to F. Effectivity of Appointment ................... 251
Accept a Public Office .............................. 238 G. Effects of a Complete, Final and
3. Public Officer’s Power is Delegated Irrevocable Appointment 252
(not Presumed) ......................................... 238 H. Civil Service Commission’s (CSC’s)
C. Classification of Public Offices and Jurisdiction 252
Public Officers ................................................ 239 I. Appointments to the Civil Service ...... 252
D. De Facto Officers ................................. 239
1. De Facto Doctrine ........................... 239
2. De Facto Officer Defined................ 239
3. Elements of a De Facto Officership
240
4. Office created under an
unconstitutional statute ....
241
5. Legal Effect of Acts of De Facto
Officers ....................................................... 241
6. Liabilities of De Facto Officers ....... 241
7. Right to Compensation of De Facto
Officer ......................................................... 241

Chapter II. Eligibility and Qualifications ..... 243

A. Definition ............................................... 243
B. Power to Prescribe Qualifications ...... 243
C. Time of Possession of Qualifications 244
D. Eligibility is Presumed ......................... 244
E. Qualifications Prescribed By
Constitution ....
244
F. Religious Test or Qualification is not
Required ................................. 245
G. Disqualifications to Hold Public Office
245

Chapter III. Formation of Official Relation .248

A. Modes of Commencing Official Relation
248
B.
POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

Chapter I. Public Office and Officers

LAW ON PUBLIC OFFICERS TEAM

LAW ON PUBLIC OFFICERS

Prof. Gisella Dizon-Reyes A. PUBLIC OFFICE
Faculty Editor
1. DEFINITION
Ria Dooc 2. PURPOSE
Lead Writer 3. NATURE
Dianne Patawaran 4. ELEMENTS
Mike Rivera 5. PUBLIC OFFICE V. PUBLIC EMPLOYMENT
Writers 6. PUBLIC OFFICE V. PUBLIC CONTRACT
7. NO VESTED RIGHT TO PUBLIC OFFICE
POLITICAL LAW 8. PUBLIC OFFICE V. PROPERTY
Jennifer Go 9. CREATION OF PUBLIC OFFICE
Subject Editor 10. PUBLIC
OFFICE
ACADEMICS COMMITTEE 11. AND OF
Kristine Bongcaron PUBLIC OFFICE
Michelle Dy 12. ESTOPPEL IN DENYING EXISTENCE OF
Patrich Leccio OFFICE
Editors-in-Chief B. PUBLIC OFFICER
1. DEFINITION 234
PRINTING & DISTRIBUTION 2. A PERSON CANNOT BE COMPELLED TO

LAW ON PUBLIC OFFICERS

Kae Guerrero ACCEPT PUBLIC OFFICE; EXCEPTIONS
3. IS
DESIGN & LAYOUT DELEGATED, NOT PRESUMED
C. CLASSIFICATION OF PUBLIC OFFICES AND
Pat Hernandez PUBLIC OFFICERS
Viktor Fontanilla D. DE FACTO OFFICERS
Rusell Aragones 1. DE FACTO DOCTRINE
Romualdo Menzon Jr. 2. DEFINITION OF DE FACTO OFFICER
Rania Joya DE FACTO V. DE JURE
LECTURES COMMITTEE OFFICER DE FACTO V. INTRUDER
3. ELEMENTS OF DE FACTO OFFICERSHIP
Michelle Arias 4. OFFICE CREATED UNDER AN
Camille Maranan UNCONSTITUTIONAL STATUTE
Angela Sandalo 5. LEGAL EFFECT OF ACTS OF DE FACTO
Heads OFFICERS
Katz Manzano Mary Rose Beley 6. LIABILITIES OF DE FACTO OFFICERS
Sam Nuñez Krizel Malabanan 7. RIGHT DE
Arianne Cerezo Marcrese Banaag FACTO OFFICER
Volunteers

MOCK BAR COMMITTEE A. Public Office

Lilibeth Perez 1. Definition
BAR CANDIDATES WELFARE
 The term "public office" is frequently used to
Dahlia Salamat refer to the right, authority and duty, created
and conferred by law, by which, for a given
LOGISTICS
period either fixed by law or enduring at the
Charisse Mendoza pleasure of the creating power, an individual
is invested with some portion of the
SECRETARIAT COMMITTEE sovereign functions of government, to be
Jill Hernandez exercised by that individual for the benefit of
Head the public. [Fernandez v. Sto. Tomas
Loraine Mendoza Faye Celso (1995)]
Mary Mendoza Joie Bajo
Members  Breakdown of the definition:
 (nature) right, authority and duty
 (origin) created and conferred by law
 (duration) by which for a given period –
either:
1) fixed by law or
POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

2) enduring at the pleasure of the inferior or subordinate office that created or

appointing power authorized by the Legislature and which
 an individual is invested with some inferior or subordinate office is placed under
portion of the sovereign functions of the the general control of a superior office or
government body
 (purpose) to be exercised by him for the  Defined as unhindered performance.
benefit of the public.
v. Must have permanence and continuity

2. Purpose  Note: The elements of permanence and

continuity are dispensable.
 to effect the end for the government’s  On the dispensability of the element of
institution : common good; permanence: an example is the public office
 NOT profit, honor, or private interest of any of the Board of Canvassers, yet its duties
person, family or class of persons [63 Am are only for a limited period of time.
Jur 2d 667]  On the dispensability of the element of
continuance: Mechem in one case states
that the “the most important
3. Nature characteristic” in characterizing a 235
position as a public office is the

LAW ON PUBLIC OFFICERS

Philippine Constitution DELEGATION to the individual of some
Art. XI of the sovereign functions of
Sec. 1. Public office is a public trust. Public officers government.
and employees must, at all times, be accountable to  Here, the court held that Laurel, as chair
the people, serve them with utmost responsibility,
of the National Centennial Commission
integrity, loyalty, and efficiency; act with patriotism
and justice, and lead modest lives. (NCC), is a public officer. The public
office of NCC was delegated and is
 Public office is a responsibility, not a right. performing executive functions: it
[Morfe v. Mutuc (1968)] enforces the conservation and
promotion of the nation’s historical and
cultural heritage.
4. Elements  Such delegated function is a policy
i. Created by law or by authority of law embodied in the Constitution. It is
 Public office must be created by: inconsequential that Laurel was not
 Constitution compensated during his tenure. A salary
 National Legislation is a usual (but not necessary) criterion
 Municipal or other body’s legislation, for determining the nature of a position.
via authority conferred by the Also, the element of continuance is not
Legislature indispensable. [Laurel v. Desierto
(2002)]
 The first element defines the mode of - as in the case of Ad Hoc Bodies or
creation of a public office while the other commissions
elements illustrate its characteristics.
ii. Possess a delegation of a portion of the 5. Public Office v. Public Employment
sovereign powers of government, to be  Public employment is broader than public
exercised for the benefit of the public office. All public office is public employment,
but not all public employment is a public
 There are certain GOCCs which, though
office.
created by law, are not delegated with a
portion of the sovereign powers of the  Public employment as a position lacks either
government (those that are purely one or more of the foregoing elements of a
proprietary in nature), and thus may not be public office.
considered as a Public Office. (Bernard v. Humble [182 S.W. 2d. 24.
1
Cited by De Leon, page 8-9])
iii. Powers conferred and duties imposed must
- created by contract rather than by force of
be defined, directly or impliedly law
iv. Duties must be performed independently 1
and without the control of a superior power ALL DE LEON CITATIONS BASED ON: De Leon, Hector.
THE LAW ON PUBLIC OFFICERS AND ELECTION LAW.
other than the law, UNLESS for duties of an Rex Bookstore (2000).
POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

 the most important characteristic which sense, a right to his office. If that right is to
distinguishes an office from an employment be taken away by statute, the terms
is that: should be clear. [Segovia v. Noel (1925)]
 the creation and conferring of an office
involves a delegation to the individual of
8. Public Office is not Property.
some of the sovereign functions of
government, to be exercised by him for  A public office is not the property of the
the benefit of the public, and public officer within the meaning of the due
 that the same portion of the sovereignty process clause of the non-impairment of the
of the country, either legislative, obligation of contract clause of the
executive or judicial, attached, for the Constitution.
time being, to be exercised for the public  It is a public trust/agency. Due process
benefit. is violated only if an office is considered
Unless the powers so conferred are of this property. However, a public office is not
nature, the individual is not a public officer. property within the constitutional
[Laurel v. Desierto (2002)] guaranties of due process. It is a
public trust or agency. As public
officers are mere agents and not rulers
6. Public Office v. Public Contract of the people, no man has a proprietary 236
Public Office Public Contract or contractual right to an office.

LAW ON PUBLIC OFFICERS

How Incident of Originates from [Cornejo v. Gabriel (1920)]
Created sovereignty. will of contracting
Sovereignty is parties.  It is personal. Public office being
omnipresent. personal, the death of a public officer
Object To carry out the Obligations terminates his right to occupy the
sovereign as well as imposed only upon
governmental the persons who
contested office and extinguishes his
functions affecting entered into the counterclaim for damages. His widow
even persons not contract. and/or heirs cannot be substituted in the
bound by the counterclaim suit. [Abeja v. Tañada
contract. (1994)]
Subject A public office Limited duration and
Matter embraces the idea specific in its object.  Exceptions:
of tenure, duration, Its terms define and  In quo warranto proceedings relating
continuity, and the limit the rights and to the question as to which of 2 persons
duties connected obligations of the is entitled to a public office
therewith are parties, and neither  In an action for recovery of
generally continuing may depart
compensation accruing by virtue of the
and permanent. therefrom without
the consent of the public office
other.
Scope Duties that are Duties are very 9. Creation of Public Office
generally continuing specific to the
and permanent. contract.  Modes of Creation of Public Office
Where The law Contract  by the Constitution
duties  by statute / law
are
defined  by a tribunal or body to which the power
to create the office has been delegated

7. No vested right to public office.  How Public Office is Created

 GENERAL RULE: The creation of a
GENERAL RULE: A public office, being a mere public office is PRIMARILY a Legislative
privilege given by the State, does not vest any Function.
right in the holder of the office. This rule applies  EXCEPTIONS:
when the law is clear.  where the offices are created by the
EXCEPTION: When the law is vague, the Constitution;
person’s holding of the office is protected and he  where the Legislature validly
should not be easily deprived of his office. delegates such power.

 A public office is neither property nor a  Legislature should Validly Delegate the
public contract. Yet the incumbent has, in a Power to Create a Public Office
 POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

 Or else, the office is inexistent. The carries with it the power to abolish it.
President’s authority to "reorganize [Ocampo v. Sec. of Justice (1955)]
within one year the different executive
departments, bureaus and other  Is Abandonment equivalent to Abolition?
instrumentalities of the Government" in When a public official voluntarily accepts an
order to promote efficiency in the public appointment to an office newly created by
service is limited in scope and cannot be law -- which new office is incompatible
extended to other matters not embraced with the former -- he will be considered to
therein. [UST v. Board of Tax Appeals have abandoned his former office.
(1953)]  Except when the public official is
Therefore, an executive order constrained to accept because the non-
depriving the Courts of First Instance of acceptance of the new appointment would
jurisdiction over cases involving affect public interest. (no abandonment)
recovery of taxes illegally collected is [Zandueta v. De La Costa (1938)]
null and void, as Congress alone has
the "power to define, prescribe and 12. Estoppel in Denying Existence of
apportion the jurisdiction of the various Office
courts." [Art. VIII sec. 2, 1987
Constitution]  A person is estopped from denying that he 237
has occupied a public office when he has

LAW ON PUBLIC OFFICERS

But note: No law shall be passed acted as a public officer; more so when he
increasing the appellate jurisdiction of has received public monies by virtue of such
the Supreme Court as provided in this office. [Mendenilla v. Onandia (1962)]
Constitution without its advice and
concurrence. [Art. VI, sec. 30, 1987
Constitution] B. Public Officer
1. Definition
10. Methods of Organizing Public Offices
 (What he is) He performs governmental
Method Composition Efficiency
public functions / duties which involve the
Single- one head assisted Swifter decision and
head by subordinates action exercise of discretion ( not clerical or
but may sometimes manual)
be hastily made
Board collegial body for Mature studies and
 (How he became Public Officer) by virtue of
System formulating polices deliberations but direct provision of law, popular election, or
and implementing may be slow in appointment by competent authority.
programs responding to issues
and problems (Who ARE Public Officers)
 Administrative Code
 Sec. 2.
11. Modification and Abolition of Public (14) The term “officer” includes any government
Office employee, agent, or body authorized to
exercise governmental power in performing
 GENERAL RULE: The power to create an particular acts or functions
office includes the power to modify or
abolish it (i.e. Legislature generally has this Revised Penal Code
power) Art 203. Who are public officers—for the
purpose of applying the provisions of this and
 EXCEPTIONS: the preceding titles of this book, any person
 Where the Constitution prohibits such who, by direct provision of the law, popular
modification / abolition; election or appointment by competent authority,
 Where the Constitution gives the people shall take part in the performance of public
functions in the Government of the Philippine
the power to modify or abolish the office
Islands, or shall perform in said Government or
[i.e. Recall] in any of its branches public duties as an
 Abolishing an office also abolishes employee, agent or subordinate official of any
unexpired term. The legislature’s rank or class, shall be deemed to be a public
abolition of an office (i.e. court) also officer
abolishes the unexpired term. The
legislative power to create a court  Persons in authority and their agents.
Article 152, Revised Penal Code.
POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

 A PERSON IN AUTHORITY is any  (Who are NOT Public Officers)

person, either an individual or a  Special policemen salaried by a private
member of a governmental body, entity and patrolling only the premises of
who is directly vested with such private entity [Manila Terminal
jurisdiction. Co. v. CIR (1952)]
o The barrio captains and  Concession forest guards [Martha
barangay chairpersons are Lumber Mill v. Lagradante (1956)]
included.  Company cashier of a private
o For RPC Articles 148 [Direct corporation owned by the government
Assaults] and 151 [Resistance [Tanchoco v. GSIS (1962)]
and Disobedience], teachers,
professors, and persons
charged with the supervision of 2. A Person Cannot be Compelled to
public or duly recognized private Accept a Public Office.
schools, colleges and  EXCEPTIONS:
universities are included.
 When citizens are required, under
 An AGENT of a person in authority
conditions provided by law, to render
is charged with the maintenance of personal military or civil service (see
public order and the protection and 238
Sec. 4, Art. II, 1987 Const.);
security of life and property.
 When a person who, having been

LAW ON PUBLIC OFFICERS

o They become such either by
elected by popular election to a public
direct provision of law, by
office, refuses without legal motive to be
election or by a competent
sworn in or to discharge the duties of
authority’s appointment.
said office. This is a felony.
o Examples are barrio captain,
barrio councilman, barrio  Art 234, RPC: Refusal to discharge
policeman, barangay leader, elective office- the penalty of arresto
and any person who comes to mayor or a fine not exceeding 1,000
the aid of persons in authority. pesos, or both, shall be imposed upon
any person who, having been elected by
 Temporary performer of public functions. popular election to a public office, shall
refuse without legal motive to be sworn
A person performing public functions in or to discharge the duties of said
- even temporarily – is a public office.
official. Here, a laborer temporarily in
charge of issuing summons and
subpoenas for traffic violations in a 3. Public Officer’s Power is Delegated
judge's sala was convicted for bribery (not Presumed)
under RPC 203.  A public official exercises power, not rights.
According to the Court, the law is The government itself is merely an agency
comprehensive: “who, by direct through which the will of the state is
expressed and enforced. Its officers
provision of law, popular election or
therefore are likewise agents entrusted with
appointment by competent authority,
the responsibility of discharging its functions.
shall take part in the performance of
As such, there is no presumption that
public functions in the Philippine
they are empowered to act. There must
Government, or shall perform in said
be a DELEGATION of such authority,
government or any of its branches,
either express or implied. In the absence
public duties as an employee, agent or
of a valid grant, they are devoid of power.
subordinate official or any rank or class
[Villegas v. Subido (1971)]
[Maniego v. People (1951)]

 Money order-sorter and –filer.

A person sorting and filing money orders
in the Auditor's Office of the Bureau of
Posts is obviously doing a public
function or duty. Such person here was
convicted for infidelity in the custody of
documents. [People v. Paloma (1997)]
POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

C. Classification of Public Offices and

 A person is a de facto officer when the
Public Officers duties of his office are exercised under ANY
of the following circumstances:
Creation Constitutional 1. There is no known appointment or
Statutory election, but people are induced by
Public Body Served National circumstances of reputation or
Local acquiescence to suppose that he is the
Department of government to Legislative officer he assumes to be.
which their functions pertain Executive Consequently, people do not to
Judicial inquire into his authority, and they
Nature of functions Civil submit to him or invoke his action;
Military 2. He possessed public office under
Exercise of Judgment or Quasi-judicial color of a known and valid
Discretion Ministerial appointment or election, but he failed
Legality of Title to office De Jure to conform to some precedent
De Facto requirement or condition (e.g., taking an
Compensation Lucrative oath or giving a bond);
Honorary 3. He possessed public office under color 239
of a known election or appointment, but

LAW ON PUBLIC OFFICERS

such is VOID because:
 He’s ineligible;
D. De Facto Officers
 The electing or appointing body is
1. De Facto Doctrine not empowered to do such;
 His exercise of his function was
 It is the doctrine that a person who is defective or irregular;
admitted and sworn into office by the proper  (Important) The public does NOT
authority is deemed to be rightfully in KNOW of such ineligibility, want of
such office until: power, or defect being.
(a) he is ousted by judicial declaration in a  He possessed public office under color
proper proceeding; or of an election or an appointment by or
(b) his admission thereto is declared void. pursuant to a public, unconstitutional
 Doctrine’s Purpose: to ensure the orderly law, before the same is adjudged to
functioning of government. The public be such.
cannot afford to check the validity of the  What is unconstitutional is the
officer's title each time they transact with officer’s appointment to an office not
him. legally existing, (not creation of an
unconstitutional office). [Norton v.
County of Shelby (1886)]
2. De Facto Officer Defined
 One who has the reputation of being the
officer that he assumes to be, and yet is not
a good officer in point of law. [Torres v.
Ribo (1948)]
 He must have:
 acted as an officer for such length of
time,
 under color of title and under such
circumstances of reputation or
acquiescence by the public and public
authorities,
 as to afford a presumption of election or
appointment, and
 induce people, without inquiry, and
relying on the supposition that he is the
officer he assumes to be, to submit to or
invoke his action.
POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

a. Officer De Jure v. Officer De Facto

(Asked in 2000, 2004)

De Jure De Facto
Requisites A de jure office exists; De jure office;

He is legally qualified for the office; He assumed office under color of right or
general acquiescence by the public;
He is lawfully chosen to such office;
He actually and physically possessed
He undertakes to perform the duties of the office in good faith.
such office according to law’s prescribed
mode.
Basis of Right: Reputation: He possesses office and
Authority He has the lawful right / title to the office performs its duties under color of right,
but he is not technically qualified to act
in all points of law
How ousted Cannot be ousted. In a direct proceeding (quo warranto);
(≠ collaterally) 240
Validity of official Valid, subject to exceptions (e.g., acting Valid as to the public until his title to the

LAW ON PUBLIC OFFICERS

acts beyond his scope of authority, etc.) office is adjudged insufficient.
Rule on Rightfully entitled to compensation; Conditionally entitled to receive
Compensation compensation: only when no de jure
The principle "No work, no pay" is officer is declared;
inapplicable to him.
He is paid only for actual services
rendered.
b. Officer De Facto v. Intruder

De Facto Intruder
Nature He becomes officer under any of the 4 He possesses office and performs
circumstances discussed under Part II official acts without actual or apparent
(above). authority.
Basis of authority Color of right or title to office None. Neither lawful title nor color of
right to office.
Validity of Valid as to the public until his title to the Absolutely void; His acts can be
"official" acts office is adjudged insufficient impeached at any time in any
proceeding (unless and until he
continues to act for a long time, creating
a presumption of his right to act) (De
Leon, 119)
Rule on Entitled to receive compensation only Not entitled to compensation at all.
compensation when no de jure officer is declared and
only for actual services rendered.

 An intruder / usurper may be presumed a de b. Known and valid appointment or election

facto officer with the passage of time, when but the officer failed to conform to a
the public presumes in their minds IN GOOD legal requirement
FAITH that the intruder is rightfully acting as c. Known appointment or election but void
a public officer. because of ineligibility of the officer, or
want of authority of the appointing or
electing authority, or because of an
3. Elements of a De Facto Officership irregularity in his appointment or
i. A validly existing public office; election, such ineligibility, want of
ii. Actual physical possession of the office in authority or irregularity being unknown
good faith; to the public
iii. Color of title to the office:
a. Reputation or acquiescence;
POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

d. Known appointment or election pursuant  RULE: A de facto officer’s and his acts’
to an unconstitutional law before validity cannot be collaterally questioned
declaration of unconstitutionality (in proceedings where he is not a party, or
were not instituted to determine the very
 Who are NOT considered De Facto question).
Officers?  REMEDY: Quo warranto proceedings
 A judge who has accepted an filed by:
appointment as finance secretary and  The person claiming entitlement
yet renders a decision after his to the office;
acceptance: if he has ceased to be  The Republic of the Philippines
judge by actually accepting and entering (represented by the Solicitor-
into some other office and has actually General or a public prosecutor).
entered upon the performance of the
duties of the other office, it is difficult to 6. Liabilities of De Facto Officers
understand how he can still be
considered as actually occupying and (De Leon, 130-131)
performing the duties of the office which  A de facto officer generally has the same
he had abandoned and vacated. An degree of liability in accountability for official
abandonment and a vacation of an acts like a de jure officer. 241
office is inconsistent and repugnant  The de facto officer may be liable for all

LAW ON PUBLIC OFFICERS

to the idea of actually continuing to imposable penalties for ANY of the following
perform the duties of such office; acts:
[Luna v. Rodriguez (1917)]  usurping or unlawfully holding office;
 A judge whose position has already  exercising the functions of public office
been lawfully abolished, and yet without lawful right;
promulgates a decision in a criminal  ineligibility for the public office as required
case after the abolition and over the by law
fiscal’s objection [People v. So (1995)]  The de facto officer cannot excuse
responsibility for crimes committed in his
official capacity by asserting his de facto
4. Office created under an status.
unconstitutional statute
 The prevalent view is that a person appointed 7. Right to Compensation of De Facto
or elected in accordance with a law later Officer
declared to be unconstitutional may be
considered de facto at least before the  GENERAL RULE: None. A de facto officer
declaration of unconstitutionality. cannot sue for the recovery of salary, fees or
other emoluments attached to the office, for
the duties he has performed. His acts, as far
5. Legal Effect of Acts of De Facto as he himself is concerned, are void. (63A
Officers Am. Jur. 2d 1094-1095)
[Monroy v. CA (1967)] the rightful incumbent may recover from the
 As regards the officers themselves: A party de facto officer the salary received by the
suing or defending in his own right as a public latter during his wrongful tenure, even
officer must show that he is an officer de jure. though he entered into the office in good
It is not sufficient that he be merely a de faith and under color of title.[ Monroy v CA
facto officer. (1967)]
 As regards the public and third persons: The
 EXCEPTIONS
acts of a de facto officer are valid as to third
persons and the public until his title to  Where there is no de jure public officer, the
office is adjudged insufficient. officer de facto who in good faith has had
possession of the office and has
 RATIONALE: The doctrine is intended not
discharged the duties pertaining thereto is
for the protection of the public officer, but
legally entitled to the emoluments of the
for the protection of the public and
office. [Monroy v. CA [1967])
individuals who get involved in the official
acts of persons discharging the duties of a  In Civil Liberties Union v. Executive
public office. Secretary (1991), even as EO No. 284 was
 De Facto Officer’s Official Acts are not subject declared unconstitutional because it
to collateral attack allowed Cabinet members to hold multiple
offices in direct contravention of the
POLITICAL LAW REVIEWER Chapter I. PUBLIC OFFICE and OFFICERS

Constitution, it was held that during their

tenure in the questioned positions, the
respondents may be considered de facto
officers and as such entitled to the
emoluments of the office/s for actual
service rendered.
 A de facto officer, not having good title,
takes the salaries at his risk and must
account to the de jure officer (when there is
one) for whatever salary he received during
the period of his wrongful tenure, even if he
occupied the office in good faith.
 BUT when the de jure officer assumed
another position under protest, for
which she received compensation:
while her assumption to the said
position and her acceptance of the
corresponding emoluments do not
constitute abandonment of her rightful
office, she cannot recover full back 242
wages for such. She is only entitled to

LAW ON PUBLIC OFFICERS

back pay differentials between the
salary rates for the lower position she
assumed and the position she is
rightfully entitled to. [Gen. Manager,
Philippine Ports Authority v.
Monserate (2002)]
POLITICAL LAW REVIEWER Chapter II. ELIGIBILITY and QUALIFICATIONS

 RESTRICTIONS on the Power of Congress

Chapter II. Eligibility and Qualifications to Prescribe Qualifications:
 Congress cannot exceed its
A. DEFINITIONS constitutional powers;
B. POWER TO PRESCRIBE QUALIFICATIONS
 Congress cannot impose conditions of
C. TIME OF POSSESSION OF QUALIFICATIONS
D. PRESUMPTION OF ELEGIBILITY
eligibility inconsistent with constitutional
E. QUALIFICATIONS USUALLY PRESCRIBED provisions;
F. RELIGIOUS TEST/QUALIFICATION IS NOT  The qualification must be germane to
REQUIRED the position ("reasonable relation" rule);
G. PUBLIC  Where the Constitution establishes
OFFICE specific eligibility requirements for a
particular constitutional office, the
A. Definition constitutional criteria are exclusive, and
 Eligibility: endowment / requirement / Congress cannot add to them except if
accomplishment that fits one for a public the Constitution expressly or impliedly
office. gives the power to set qualifications.
 Congress cannot prescribe qualifications
 Qualification: endowment / act which a so detailed as to practically amount to
person must do before he can occupy a making a legislative appointment: it is 243
public office. unconstitutional and therefore void for

LAW ON PUBLIC OFFICERS

being a usurpation of executive power –
 Note: Failure to perform an act required by examples:
law could affect the officer’s title to the given  Extensions of the terms of office of
office. Under BP 881, the office of any the incumbents;
elected official who fails or refuses to take  A proviso which limits the choices of
his oath of office within six months from his the appointing authority to only one
proclamation shall be considered vacant eligible, e.g. the incumbent Mayor of
unless said failure is for cause or causes Olongapo City; [Flores v. Drilon
beyond his control. (1993)]
 An oath of office is a qualifying  Designating an unqualified person.
requirement for a public office. Only The People's Court Act, which
when the public officer has satisfied this provided that the President could
prerequisite can his right to enter into designate Judges of First Instance,
the position be considered plenary and Judges-at-large of First Instance or
complete. Until then, he has none at all, Cadastral Judges to sit as substitute
and for as long as he has not qualified, Justices of the Supreme Court in
the holdover officer is the rightful treason cases without them
occupant. [Lecaroz v. Sandiganbayan necessarily having to possess the
(1999)] required constitutional qualifications
 Once proclaimed and duly sworn in of a regular Supreme Court Justice.;
office, a public officer is entitled to [Vargas v. Rilloraza (1948)]
assume office and to exercise the  Automatic transfer to a new office. A
functions thereof. The pendency of an legislative enactment abolishing a
election protest is not sufficient basis to particular office and providing for the
enjoin him from assuming office or from automatic transfer of the incumbent
discharging his functions. [Mendoza v. officer to a new office created;
Laxina (2003)] [Manalang v. Quitorano (1954)]
 Requiring inclusion in a list. A
B. Power to Prescribe Qualifications provision that impliedly prescribes
inclusion in a list submitted by the
 GENERAL RULE: Congress is empowered
Executive Council of the Phil.
to prescribe the qualifications for holding
Medical Association as one of the
public office.
qualifications for appointment; and
 In the absence of constitutional inhibition, which confines the selection of the
Congress has the same right to provide members of the Board of Medical
disqualifications that it has to provide Examiners to the 12 persons
qualifications for office. (De Leon, 23) included in the list; [Cuyegkeng v.
Cruz (1960)]
POLITICAL LAW REVIEWER Chapter II. ELIGIBILITY and QUALIFICATIONS

C. Time of Possession of Qualifications 2. For Senator

(Sec. 3, Art. VI, Constitution)
 At the time specified by the Constitution or
 Natural-born citizen
law.
 35 years old on election day
 If time is unspecified, 2 views:  able to read and write
a. qualification during commencement of  registered voter
term or induction into office;  resident of the Philippines for not less
b. qualification / eligibility during election or than two years immediately preceding
appointment election day
(De Leon, 26-27)
3. For Congressmen
 Eligibility is a continuing nature, and must (Sec. 6, Art. VI, Constitution)
exist throughout the holding of the public  Natural-born citizen
office. Once the qualifications are lost, the  25 years old on election day
public officer forfeits the office.  able to read and write
 No estoppel in ineligibility. Knowledge of  registered voter in district in which he
ineligibility of a candidate and failure to shall be elected
question such ineligibility before or  resident thereof for not less than one
during the election is not a bar to year immediately preceding election day
244
questioning such eligibility after such

LAW ON PUBLIC OFFICERS

ineligible candidate has won and been 4. Supreme Court Justice
proclaimed. Estoppel will not apply in  Natural born citizen
such a case. [Castaneda v. Yap (1952)]  at least 40 years old
 Citizenship requirement should be  15 years or more as a judge or engaged
possessed on start of term (i.e. ≠ on in law practice
filing candidacy). The Local Government  of proven competence, integrity, probity
Code does not specify any particular and independence (C.I.P.I.)
date or time when the candidate must
possess the required citizenship, unlike 5. Civil Service Commissioners
for residence and age. The requirement (Sec. 1 [1], Art. IXB. Constitution)
is to ensure that no alien shall govern  Natural-born citizen
our people and country or a unit of  35 years old at time of appointment
territory thereof. An official begins to  proven capacity for public administration
govern or discharge his functions only  not a candidate for any elective position
upon proclamation and on start of his in election immediately preceding
term. This liberal interpretation gives appointment
spirit, life and meaning to our law on
qualifications consistent with its 6. COMELEC Commissioners
purpose. [Frivaldo v. COMELEC (Sec. 1[1], Art. IXC)
(1996)]  Natural-born citizen
 35 years old at time of appointment
D. Eligibility is Presumed  college degree holder
 not a candidate for elective position in
 IN FAVOR of one who has been elected or election immediately preceding
appointed to public office. appointment
 The right to public office should be strictly  chairman and majority should be
construed against ineligibility. members of the bar who have been
(De Leon, 26) engaged in the practice of law for at
least 10 years
E. Qualifications Prescribed By 7. COA Commissioners
Constitution  Natural-born citizen
1. For President  35 years old at time of appointment
(Sec. 2, Art. VI, Constitution) and Vice  CPA with >10 year of auditing
President (Sec. 3, Art. VII, Constitution) experience or
 Natural-born citizen  Bar member engaged in practice of law
 40 years old on election day for at least 10 years
 Philippine resident for at least 10 years
immediately preceding election day
POLITICAL LAW REVIEWER Chapter II. ELIGIBILITY and QUALIFICATIONS

 Not candidates for any elective position ineligible (i.e. disqualified from holding such
in election immediately preceding office).
appointment.
 Authority: The legislature has the right to
 “Practice of Law” defined. Practice of law prescribe disqualifications in the same
means any activity, in or out of court, manner that it can prescribe qualifications,
which requires the application of law, provided that the prescribed disqualifications
legal procedure, knowledge, training and do not violate the Constitution.
experience. Generally, to practice law is to
give notice or render any kind of service  General Constitutional Disqualifications
which requires the use in any degree of 1. Losing candidates cannot be appointed
legal knowledge or skill. [Cayetano v. to any governmental office within one
Monsod (1991)] year after such election. (Art. IX-B Sec.
6)
 In the dissenting opinion of Justice Padilla in 2. Elective officials during their tenure are
the case of Cayetano v. Monsod, citing ineligible for appointment or designation
Agpalo, he stated that engaging in the in ANY capacity to ANY public office or
practice of law presupposes the existence of position (Art. IX-B Sec. 7(1))
lawyer-client relationship. Hence, where a 3. Appointive officials shall not hold any 245
lawyer undertakes an activity which requires other governmental position.
 Unless otherwise allowed by law or

LAW ON PUBLIC OFFICERS

knowledge of law but involves no attorney-
client relationship, such as teaching law or his position’s primary functions (Art.
writing law books or articles, he cannot be IX-B Sec 7 (2))
said to be engaged in the practice of his  Note: There is no violation when
profession or a lawyer another office is held by a public
 “Residency” defined. In election law, officer in an ex officio capacity (where
residence refers to domicile, i.e. the place one can’t receive compensation or other
where a party actually or constructively has honoraria anyway), as provided by law
his permanent home, where he intends to and as required by the primary functions
return. To successfully effect a change of of his office. [ National Amnesty
domicile, the candidate must prove an actual Commission v. COA (2004)]
removal or an actual change of domicile.
[Aquino v. COMELEC (1995)] Specific Constitutional Disqualifications

 Presumption in favor of domicile of origin. Public Officer Disqualifications

Domicile requires the twin elements of The President, Vice shall not hold any other
actual habitual residence and animus President, the Members office or employment
manendi (intent to permanently remain). of the Cabinet and their during their tenure,
deputies or assistants UNLESS otherwise
Domicile of origin is not easily lost; it is provided in the
deemed to continue absent a clear and Constitution, (Art. VII,
positive proof of a successful change of Sec. 13)
domicile. [Marcos v. COMELEC (1995)] Senator or Member of may not hold during his
the House of term any other office or
Representatives employment in the
F. Religious Test or Qualification is not Government, or any
subdivision, agency or
Required instrumentality thereof,
including government -
Philippine Constitution owned or -controlled
Art. III corporations or their
Sec. 5. … No religious test shall be required for the subsidiaries
exercise of civil or political rights.
effect: or else he forfeits
his seat
shall also not be
G. Disqualifications to Hold Public appointed to any office
Office when such was created or
its emoluments were
 IN GENERAL: Individuals who lack ANY of increased during his term.
the qualifications prescribed by the (Art. VI, Sec 13)
Constitution or by law for a public office are
POLITICAL LAW REVIEWER Chapter II. ELIGIBILITY and QUALIFICATIONS

Members of the shall not be designated to iii. Representative = 3 consecutive

Supreme Court and any agency performing terms
other courts established quasi-judicial or iv. Elective local officials = 3
by law administrative functions. consecutive terms (Sec. 8, Art. X,
(Art. VIII, Sec. 12)
Constitution)
Members of the shall not hold any other
Constitutional office or employment  Public officer’s voluntary
Commission [during their tenure]. (Art.
renunciation of office for any length
IX-A, Sec. 2)
Ombudsman and his (Art. XI, Sec. 8) of time ≠ an interruption in the
Deputies continuity of his service for the full
Members of must not have been term for which he was elected.
Constitutional candidates for any
Commissions, the elective position in the 7. Holding more than one office: to prevent
Ombudsman and his elections immediately offices of public trust from accumulating
Deputies preceding their in a single person, and to prevent
appointment (Art IX-B, individuals from deriving, directly or
Sec. 1; Art. IX-C, Sec. 1; indirectly, any pecuniary benefit by
Art. IX-D, Sec. 1; Art XI, virtue of their holding of dual positions.
Sec. 8)
Members of are appointed to 7-year 246
Civil Liberties Union v. Executive
Constitutional term, without Secretary (1991):

LAW ON PUBLIC OFFICERS

Commissions, the reappointment (Sec. 1(2)
Ombudsman and his of Arts. IX-B, C, D; Art.
 Section 7, Article IX-B of the
Deputies XI, Sec. 11) Constitution generally prohibits
The President’s spouse shall not be appointed elective and appointive public
and relatives by during President’s tenure officials from holding multiple offices
consanguinity or affinity as Members of the or employment in the government
within the fourth civil Constitutional unless they are otherwise allowed
degree Commissions, or the by law or by the primary functions of
Office of the Ombudsman, their position.
or as Secretaries,
Undersecretaries, This provision does NOT cover the
chairmen or heads of President, Vice-President and
bureaus or offices, cabinet members – they are
including government-
owned-or -controlled
subject to a stricter prohibition
corporations. (Art. VIII, under Section 13 of Article VII.
Sec. 13)
 To apply the exceptions found in
Section 7, Article IX-B to Section 13,
 Other Disqualifications Article VII would obliterate the
1. Mental or physical incapacity
distinction set by the framers of
2. Misconduct or crime: persons convicted the Constitution as to the high-
of crimes involving moral turpitude are ranking officials of the Executive
USUALLY disqualified from holding branch.
public office.  However, public officials holding
3. Impeachment positions without additional
compensation in ex-officio
4. Removal or suspension from office: not capacities as provided by law and
presumed  non-imposable when such as required by their office’s primary
ineligibility is not constitutional or functions are not covered by the
statutory declared. Section 13, Article VII prohibition.
5. Previous tenure of office: for example, 8. Holding of office in the private sector:
an appointed Ombudsman is absolutely  Section 7 (b)(1)of RA 6713 considers
disqualified for reappointment (Article unlawful for public officials and
XI, Constitution). employees during their incumbency to
own, control, manage, or accept
6. Consecutive terms limit: employment as officer employee,
i. Vice-President = 2 consecutive consultant, counsel, broker, agent,
terms trustee or nominee in any private
ii. Senator = 2 consecutive terms enterprise regulated, supervised or
POLITICAL LAW REVIEWER Chapter II. ELIGIBILITY and QUALIFICATIONS

licensed by their office unless expressly different laws of two or more

allowed by law. states, a person is
simultaneously considered a
 Section 7 of RA 6713 also generally national by the said states.
provides for the prohibited acts and
transactions of public officials and
employees. Subsection (b)(2) prohibits  Dual allegiance, on the other
them from engaging in the private hand, refers to the situation in
practice of their profession during their which a person simultaneously
incumbency. As an exception, a public owes, by some positive act,
official or employee can engage in the loyalty to two or more
practice of his or her profession under states. While dual citizenship is
the following conditions: first, the private involuntary, dual allegiance is
practice is authorized by the Constitution
the result of an individual’s
or by the law; and second, the practice
will not conflict, or tend to conflict, with volition.
his or her official functions.
 [I]n including §5 in Article IV on
citizenship, the concern of the
9. Relationship with the appointing power Constitutional Commission was
 General Rule on Nepotism: The Civil not with dual citizens per se but 247
Service Decree (PD 807) prohibits with naturalized citizens who

LAW ON PUBLIC OFFICERS

all appointments in the national and maintain their allegiance to their
local governments or any branch or countries of origin even after
instrumentality thereof made in favor their naturalization.
of the relative of:
i. appointing authority;  Hence, the phrase “dual
ii. recommending authority; citizenship” in R.A. No. 7160,
iii. chief of the bureau office; or §40(d) and in R.A. No. 7854,
iv. person exercising immediate §20 must be understood as
supervision over the appointee referring to “dual
 Relative: related within the third allegiance.”
degree of either consanguinity or of
affinity.
 Exceptions to rule on nepotism: v. Fugitive from justice in criminal or
 persons employed in a non-political cases here or abroad;
confidential capacity vi. Permanent residents in a foreign
 teachers country or those who have acquired
 physicians the right to reside abroad and
 members of the Armed Forces continue to avail of the same right
of the Philippines after the effectivity of the Local
Government Code;
10. Under the Local Government Code (sec. vii. Insane or feeble-minded.
40)
i. Sentenced by final judgment for an
offense involving moral turpitude or
for an offense punishable by 1 year
or more of imprisonment, within 2
years after serving sentence;
ii. Removed from office as a result of an
administrative case;
iii. Convicted by final judgment for
violating the oath of allegiance to
the Republic;
iv. Dual citizenship;

Mercado v. Manzano (1999):

 Dual citizenship is different from
dual allegiance. The former
arises when, as a result of the
concurrent application of the
POLITICAL LAW REVIEWER Chapter III. FORMATION of OFFICIAL RELATION

Security of No. Yes.

Chapter III. Formation of Official Relation tenure?
Is prior/1st …a 2nd …a 2nd
A. MODES OFFICIAL office designated appointive
RELATION abandoned position is position is
B. ELECTION when… assumed? assumed?
C. APPOINTMENT NO Usually YES
1. DEFINITION
2. NATURE OF POWER TO APPOINT  Political. Appointment is generally a political
3. CLASSIFICATION OF APPOINTMENTS question so long as the appointee fulfills the
4. STEPS IN APPOINTING PROCESS minimum qualification requirements
5. PRESIDENTIAL APPOINTEES prescribed by law.
D. QUALIFICATION STANDARDS AND
REQUIREMENTS UNDER THE CIVIL  Vacancy for Validity. For the appointment to
SERVICE LAW be valid, the position must be vacant
1. QUALIFICATION STANDARDS [Castin v. Quimbo (1983)]
2. POLITICAL QUALIFICATIONS FOR AN
OFFICE (I.E. MEMBERSHIP IN A
POLITICAL PARTY) 2. Nature of Power to Appoint
3. NO PROPERTY QUALIFICATIONS
4. CITIZENSHIP  The power to appoint is intrinsically an 248
5. EFFECT OF REMOVAL OF executive act involving the exercise of

LAW ON PUBLIC OFFICERS

QUALIFICATIONS DURING THE TERM discretion. [Concepcion v. Paredes
6. EFFECT OF PARDON UPON THE (1921)]
DISQUALIFICATION TO HOLD PUBLIC
OFFICE  Must be unhindered and unlimited by
DISCRETION OF APPOINTING OFFICIAL Congress. Congress cannot either appoint a
EFFECTIVITY OF APPOINTMENT public officer or impose upon the President
EFFECTS OF A COMPLETE, FINAL AND the duty to appoint any particular person to
IRREVOCABLE APPOINTMENT
an office. The appointing power is the
CIVIL SERVICE COMMISSION’S (CSC’S)
JURISDICTION
exclusive prerogative of the President,
APPOINTMENTS TO THE CIVIL SERVICE upon which no limitations may be
imposed by Congress, EXCEPT those:
 requiring the concurrence of the
A. Modes of Commencing Official
Commission on Appointments; and
Relation  resulting from the exercise of the limited
1. Election legislative power to prescribe the
2. Appointment qualifications to a given appointive
3. Others: office. [Manalang v. Quitoriano (1954)]
i. Succession by operation of law;
ii. Direct provision of law, e.g. ex-officio  The President’s power to appoint under the
officers Constitution should necessarily have a
reasonable measure of freedom, latitude, or
discretion in choosing appointees.
B. Election [Cuyegkeng v. Cruz (1960)]
 Selection or designation by popular vote  Where only one can qualify for the posts in
question, the President is precluded from
exercising his discretion to choose whom to
C. Appointment appoint. Such supposed power of
appointment, sans the essential element of
1. Definition choice, is no power at all and goes against
Designation Appointment the very nature of appointment itself. [Flores
Definition Imposition of Appointing v. Drilon (1993)]
additional authority
duties upon selects an
existing office individual who
3. Classification of Appointments
will occupy a  Permanent:
certain public  the permanent appointee:
office
Extent of
 must be qualified
Limited Comprehensive
Powers  must be eligible
POLITICAL LAW REVIEWER Chapter III. FORMATION of OFFICIAL RELATION

 is constitutionally guaranteed  For Appointments Not Requiring

security of tenure Confirmation (AIA)
 (Duration) until lawful termination. 1. Appointing authority appoints.
 Note: Conditional appointments are not 2. Commission issues appointment.
permanent. 3. Appointee accepts.

 Temporary:  Note: If a person is appointed to the career

service of the Civil Service, the Civil Service
 an acting appointment;
Commission must bestow attestation.
 the temporary appointee NEED NOT be
qualified or eligible;
 (No Security of Tenure) revocable at 5. Presidential Appointees
will: just cause or valid investigation
 Who can be nominated and appointed only
UNNECESSARY;
WITH the Commission on Appointments’
 an “acting” appointment is a
consent? (Art. VII, Sec. 16, 1987 Const.)
temporary appointment and
 Heads of the executive departments;
revocable in character.
[Marohombsar v. Alonto (1991)]  Ambassadors;
 A temporary appointee is like a  Other public ministers and consuls;
designated officer – they:  Officers of the armed forces from the 249
o occupy a position in an acting rank of colonel or naval captain;

LAW ON PUBLIC OFFICERS

capacity and  Other officers whose appointments are
o do not enjoy security of tenure. vested in him by the Constitution,
[Sevilla v. CA (1992)] including Constitutional Commissioners
 Even a Career Service Officer (Art. IX-B, Sec. 1 (2) for CSC; Art. IX-
unqualified for the position is C, Sec. 1 (2) for COMELEC; Art. IX-D,
deemed temporarily-appointed. Sec. 1 (2) for COA).
Thus he does not enjoy security of  Who can the President appoint WITHOUT
tenure – he is terminable at will. CA’s approval?
 A public officer who later accepts a
 All other officers of the government
temporary appointment terminates
whose appointments are not otherwise
his relationship with his former
provided for by law;
office. [Romualdez III v. CSC
 Those whom he may be authorized by
(1991)]
law to appoint;
 EXCEPT Fixed-Period Temporary
 Members of the Supreme Court;
Appointments: may be revoked
ONLY at the period’s expiration.  Judges of lower courts;
Revocation before expiration must  Ombudsman and his deputies
be for a valid cause.  Kinds of Presidential Appointments
 (Duration) until a permanent  Regular: made by the President while
appointment is issued. Congress is in session after the
nomination is confirmed by the
4. Steps in Appointing Process Commission of Appointments, and
continues until the end of the term.
 For Appointments requiring confirmation:  Ad interim: made while Congress is not
in session, before confirmation by the
 Regular Appointments (NCIA)
Commission on Appointments;
1. President nominates.
immediately effective and ceases to be
2. Commission on Appointments
valid if disapproved or bypassed by the
confirms.
Commission on Appointments. This is a
3. Commission issues appointment.
permanent appointment and it being
4. Appointee accepts.
subject to confirmation does not alter its
 Ad-Interim Appointments (NIAC) permanent character.
1. President nominates.  Efficient. Recess appointment
2. Commission issues appointment. power keeps in continuous
3. Appointee accepts. operation the business of
4. Commission on Appointments government when Congress is not
confirms. in session. The individual chosen
POLITICAL LAW REVIEWER Chapter III. FORMATION of OFFICIAL RELATION

may thus qualify and perform his D. Qualification Standards and

function without loss of time. Requirements under the Civil Service
 Duration. The appointment shall Law
cease to be effective upon rejection
by the Commission on 1. Qualification Standards
Appointments, or if not acted upon,  It enumerates the minimum requirements for
at the adjournment of the next a class of positions in terms of education,
session, regular or special, of training and experience, civil service
Congress. eligibility, physical fitness, and other
 Permanent. It takes effect qualities required for successful
immediately and can no longer be performance. (Sec. 22, Book V,
withdrawn by the President once the Administrative Code)
appointee has qualified into office.  The Departments and Agencies are
The fact that it is subject to responsible for continuously establishing,
confirmation by the Commission on administering and maintaining the
Appointments does not alter its qualification standards as an incentive to
permanent character. career advancement. (Sec. 7, Rule IV,
The Constitution itself makes an Omnibus Rules) 250
ad interim appointment permanent  Such establishment, administration, and

LAW ON PUBLIC OFFICERS

in character by making it effective maintenance shall be assisted and approved
until disapproved by the by the CSC and shall be in consultation with
Commission on Appointments or the Wage and Position Classification Office
until the next adjournment of (ibid)
Congress. [Matibay v. Benipayo  It shall be established for all positions in the
(2002)] 1st and 2nd levels (Sec. 1, Rule IV,
Omnibus Rules)
 Not Acting. An ad interim
appointment is distinguishable from
an “acting” appointment which is 2. Political Qualifications for an Office
merely temporary, good until (i.e. membership in a political party)
another permanent appointment is
issued.  GENERAL RULE: Political qualifications are
 Applicable to COMELEC NOT Required for public office.
Commissionsers, being permanent  EXCEPTIONS:
appointments, do not violate the  Membership in the electoral tribunals of
Constitutional prohibition on either the House of Representatives or
temporary or acting appointments of Senate (Art. VI, Sec. 17, 1987 Const.);
COMELEC Commissioners.  Party-list representation;
 Commission on Appointments;
 By-passed Appointee may be
 Vacancies in the Sanggunian (Sec. 45,
Reappointed. Commission on
Appointments’ failure to confirm an Local Government Code)
ad interim appointment is NOT
disapproval. An ad interim 3. No Property Qualifications
appointee disapproved by the COA
cannot be reappointed. But a by-  Since sovereignty resides in the people, it is
passed appointee, or one whose necessarily implied that the right to vote and
appointment was not acted upon the to be voted should not be dependent upon a
merits by the COA, may be candidate’s wealth. Poor people should also
appointed again by the President. be allowed to be elected to public office
because social justice presupposes equal
opportunity for both rich and poor. [Maguera
v. Borra and Aurea v. COMELEC (1965)]

4. Citizenship
 Aliens not eligible for public office.
 The purpose of the citizenship requirement
is to ensure that no alien, i.e., no person
POLITICAL LAW REVIEWER Chapter III. FORMATION of OFFICIAL RELATION

owing allegiance to another nation, shall  The exercise of the power to transfer,
govern our people and country or a unit of reinstate, reemploy or certify is widely used
territory thereof. [Frivaldo v. COMELEC (need not state reason)
(1996)]
To hold that the Civil Service Law requires
filling up any vacancy by promotion, transfer,
5. Effect of Removal of Qualifications reinstatement, reemployment, or certification
During the Term IN THAT ORDER would be tantamount to
legislative appointment which is repugnant
 Termination from office.
to the Constitution. What it does purport to
say is that as far as practicable the
6. Effect of Pardon upon the person next in rank should be promoted,
Disqualification to Hold Public Office otherwise the vacancy may be filled by
transfer, reinstatement, reemployment or
(Asked in 1999) certification, as the appointing power sees
 GENERAL RULE: Pardon will not restore fit, provided the appointee is certified to be
the right to hold public office. (Art. 36, qualified and eligible. [Pineda v. Claudio
Revised Penal Code) (1969)]
 EXCEPTIONS: 251
 Promotion of “next-in-rank” career officer is
 When the pardon’s terms expressly not Mandatory. The appointing authority

LAW ON PUBLIC OFFICERS

restores such (Art. 36, RPC); should be allowed the choice of men of his
 When the reason for granting pardon is confidence, provided they are qualified and
non-commission of the imputed crime. eligible.
[Garcia v. Chairman, COA (1993)]
 When Abused, use Mandamus.
Where the palpable excess of authority or
E. Discretion of Appointing Official abuse of discretion in refusing to issue
promotional appointment would lead to
 Presumed. manifest injustice, mandamus will lie to
Administrators of public officers, primarily compel the appointing authority to issue said
the department heads should be entrusted appointments. [Gesolgon v. Lacson
with plenary, or at least sufficient, discretion. (1961)]
Their position most favorably determines
who can best fulfill the functions of a  “Upon recommendation” is not Merely
vacated office. There should always be full Advisory.
recognition of the wide scope of a
Sec. 9. Provincial/City Prosecution Offices. [par.
discretionary authority, UNLESS the law
3] All provincial and city prosecutors and their
speaks in the most mandatory and assistants shall be appointed by the President
peremptory tone, considering all the upon the recommendation of the Secretary.
circumstances. [Reyes v. Abeleda (1968)]
 The phrase “upon recommendation of
 Discretionary Act. the Sec. of Justice” should be
Appointment is an essentially discretionary interpreted to be a mere advice. It is
power. It must be performed by the officer in persuasive in character, BUT is not
whom it is vested, the only condition being binding or obligatory upon the person to
that the appointee should possess the whom it is made.
qualifications required by law. [Lapinid v.
CSC (1991)]
 Scope. The discretion of the appointing F. Effectivity of Appointment
authority is not only in the choice of the  Immediately upon appointing authority’s
person who is to be appointed but also in issuance. (Rule V, Sec. 10, Omnibus
the nature and character of the appointment Rules).
intended (i.e., whether the appointment is
permanent or temporary).
 Inclusive Power. The appointing authority
holds the power and prerogative to fulfill a
vacant position in the civil service.
POLITICAL LAW REVIEWER Chapter III. FORMATION of OFFICIAL RELATION

G. Effects of a Complete, Final and - Recall is a mode of removal of a public

Irrevocable Appointment official by the people before the end of his
term of office. [Garcia v. COMELEC, (1993)]
 GENERAL RULE:
An appointment, once made, is irrevocable  Review Appointee’s Qualifications.
and not subject to reconsideration. The only function of the CSC is to review the
 It vests a legal right. It cannot be taken appointment in the light of the requirements
away EXCEPT for cause, and with of the Civil Service Law, and when it finds
previous notice and hearing (due the appointee to be qualified and all other
process). legal requirements have been otherwise
 It may be issued and deemed complete satisfied, it has no choice but to attest to the
before acquiring the needed assent, appointment. [Lapinid v. CSC (1991)]
confirmation, or approval of some other
officer or body.  What it cannot do.
 EXCEPTIONS:  It cannot order the replacement of the
 Appointment is an absolute nullity appointee simply because it considers
[Mitra v. Subido (1967)]; another employee to be better qualified.
[Lapinid v. CSC (1991)]
 Appointee commits fraud [Mitra v. 252
 The CSC cannot co-manage or be a
Subido, supra];
surrogate administrator of government
 Midnight appointments

LAW ON PUBLIC OFFICERS

offices and agencies.
 General Rule: A President or Acting
 It cannot change the nature of the
President shall not appoint 2 months
appointment extended by the appointing
immediately before the next
officer. [ Luego v. CSC (1986)]
presidential elections until his term
ends. (Art. VII, Sec. 15, 1987
Const.)
 Exception: Temporary appointments I. Appointments to the Civil Service
to executive positions when
continued vacancies will prejudice  SCOPE: Embraces all branches,
public service or will endanger subdivisions, instrumentalities and agencies
public safety. of the Government, including GOCCs with
original charters (Art. IX-B Sec. 2(1),
Constitution)
H. Civil Service Commission’s (CSC’s)  Classes of Service
Jurisdiction
 Exclusive Jurisdiction 1. Career Service – Entrance based on
 Disciplinary cases merit and fitness determined by
competitive examinations, or based on
 Cases involving “personnel action”
highly technical qualifications,
affecting the Civil Service employees
opportunity for advancement to higher
 Appointment through certification
career positions and security of tenure.
 Promotion
 Transfer 2. Non-career Service – Entrance on
 Reinstatement bases other than those of the usual
 Reemployment tests. Tenure limited to a period
 Detail, reassignment specified by law or which is
 Demotion coterminous with the appointing
 Separation authority or the duration of a particular
 Employment status project. (i.e. elective officials,
 Qualification standards Department Heads and Members of
Cabinet)
 Recall of appointment. Includes the authority
to recall an appointment which has been  Requisites:
initially approved when it is shown that the  Appoint only according to merit and
same was issued in disregard of pertinent fitness, to be determined as far as
CSC laws, rules and regulations. practicable.
 as opposed to Recall under Sec 69-75 of the  Require a competitive examination.
Local Government Code:  Exceptions: (Positions where
Appointees are exempt from
POLITICAL LAW REVIEWER Chapter III. FORMATION of OFFICIAL RELATION

Competitive Examination invalidates the promotion of

Requirements) those in the lower positions and
o Policy determining - in which automatically restores them to
the officer lays down principal or their former positions.
fundamental guidelines or rules; o However, the affected persons
or formulates a method of action are entitled to payment of
for government or any of its salaries for services actually
subsidiaries rendered at a rate fixed in their
o Primarily Confidential – denoting promotional appointments.
not only confidence in the (Sec. 13 of the Omnibus Rules
aptitude of the appointee for the Implementing Administrative
duties of the office but primarily Code)
close intimacy which ensures o Requisites:
freedom of intercourse without 1. series of promotions
embarrassment or freedom from 2. all promotional
misgivings or betrayals on appointments are
confidential matters of the state simultaneously submitted to
(“Proximity Rule” as enunciated the Commission for
in De los Santos v Mallare approval 253
[1950]) 3. the Commission

LAW ON PUBLIC OFFICERS

o Highly Technical – requires disapproves the
possession of technical skill or appointment of a person to
training in a superior degree. a higher position.
(i.e. City Legal Officer)
 Appointment through Certification is
o NOTE: It is the nature of the issued to a person who is:
position which determines  selected from a list of qualified
whether a position is policy persons certified by the Civil Service
determining, primarily Commission from an appropriate
confidential or highly technical register of eligibles
 Other Personnel Actions  qualified
 Promotion is a movement from one
position to another with increase in  Transfer is a movement from one
duties and responsibilities as authorized position to another which is of
by law and is usually accompanied by equivalent rank, level or salary without
an increase in pay. break in service.
 This may be imposed as an
 Next-in-rank Rule. administrative remedy.
o The person next in rank shall be  If UNconsented = violates security
given PREFERENCE in of tenure.
promotion when the position  EXCEPTIONS:
immediately above his is o Temporary Appointee
vacated. o Career Executive Service
o BUT the appointing authority still Personnel whose status and
exercises discretion and is not salaries are based on ranks (≠
bound by this rule, although he positions)
is required to specify the  Reinstatement. It is technically the
“special reason or reasons” for issuance of a new appointment and is
not appointing the officer next- discretionary on the part of the
in-rank. appointing power.
 It cannot be the subject of an
 Automatic Reversion Rule. application for a writ of mandamus.
o All appointments involved in a  Who may be reinstated to a position
chain of promotions must be in the same level for which he is
submitted simultaneously for qualified:
approval by the Commission. o Any permanent appointee of a
o The disapproval of the career service position
appointment of a person
proposed to a higher position
POLITICAL LAW REVIEWER Chapter III. FORMATION of OFFICIAL RELATION

o No commission of delinquency
or misconduct, and is not
separated.
 Same effect as Executive
Clemency, which completely
obliterates the adverse effects of the
administrative decision which found
him guilty of dishonesty. He is
restored ipso facto upon grant of
such. Application for reinstatement
= unnecessary.

 Detail is the movement of an employee

from one agency to another without the
issuance of an appointment.
 Only for a limited period.
 Only for employees occupying
professional, technical and scientific
positions. 254
 Temporary in nature.

LAW ON PUBLIC OFFICERS

 Reassignment. An employee may be
reassigned from one organizational unit
to another in the SAME agency.
 It is a management prerogative of
the CSC and any dept or agency
embraced in the Civil Service.
 It does not constitute removal
without cause.
 Requirements:
o NO reduction in rank, status or
salary.
o Should have a definite date or
duration (c.f. Detail). Otherwise,
a floating assignment = a
diminution in status or rank.
 Reemployment. Names of persons who
have been appointed permanently to
positions in the career service and who
have been separated as a result of
reduction in force and/or reorganization,
shall be entered in a list from which
selection for reemployment shall be
made.

- end of Law on Public Officers -