Law on Public Officers

2. Any citizen
Law on Public Officers
What: Branch of law which deals with public office, How: By a verified complaint for impeachment.
its creation, modification and dissolution, as well as Upon a resolution of endorsement by any Member
the eligibility of public officers, the manner of their thereof, which shall be included in the Order of
election or appointment and assumption of office, Business within ten session days, and referred to the
their rights, duties, powers, inhibitions and liabilities proper Committee within three sessions days
and the modes of terminating their official relations. thereafter. The Committee, after hearing, and by a
majority vote of all its Members, shall submit its
report to the House within sixty session days from
Constitutional Provisions such referral, together with the corresponding
resolution. The resolution shall be calendared for
relating to Public Officers consideration by the House within ten session days
from receipt thereof.
Article 11. Accountability of Public Officers
A vote of at least one-third of all the members of the
Section 1. Re Public office House shall be necessary either to affirm a favorable
What: Public Office is a public trust. resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The
Scope of Application: Public officers and employees. vote of each Member shall be recorded.

Duty: Must at all times be accountable to the In case the verified complaint or resolution of
people, serve them with utmost responsibility, impeachment is filed by at least one-third of all
integrity, loyalty, and efficiency, act with patriotism the Members of the House, the same shall constitute
and justice, and lead modest lives. the Articles of Impeachment, and trial by the Senate
shall forthwith proceed.
Section 2. Re Removal from office
Who: The President, the Vice-President, the Re who may try and decide all cases of
Members of the Supreme Court, the Members of the impeachment: The Senate shall have the sole power
Constitutional Commissions, and the Ombudsman. to try and decide all cases of impeachment.

Mode of removal from Office: Impeachment When sitting for that purpose, the Senators shall be
on oath or affirmation. When the President of the
Offences: Conviction of, culpable violation of the Philippines is on trial, the Chief Justice of the
Constitution, treason, bribery, graft and corruption, Supreme Court shall preside, but shall not vote. No
other high crimes, or betrayal of public trust. person shall be convicted without the concurrence
of two-thirds of all the Members of the Senate.
Who: All other public officer and employees.
Judgment in cases of impeachment shall not extend
Mode of removal from Office: May be removed further than removal from office and disqualification
from office as provided by law, but not by to hold any office under the Republic of the
impeachment. Philippines, but the party convicted shall
nevertheless be liable and subject to prosecution,
Section 3. Re Impeachment trial, and punishment according to law.
Re who may promulgate rules on impeachment:
The Congress to effectively carry out the purpose of Prohibition: No impeachment proceedings shall be
this section. initiated against the same official more than once
within a period of one year.
Re who may initiate all cases of impeachment: The
House of Representatives Section 4. The present anti-graft court known as the
Sandiganbayan shall continue to function and
As to who may file: exercise its jurisdiction as now or hereafter may be
Y.E.

1. Member of the House of Representatives provided by law.

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Section 5-14. Ombudsman 3. Direct the officer concerned to take

Composition of the office of the Ombudsman: appropriate action against a public official
1. Ombudsman or Tanodbayan or employee at fault, and recommend his
2. 1 overall Deputy Ombudsman removal, suspension, demotion, fine,
3. 3 Deputy Ombudsman: 1 for Luzon, 1 for censure, or prosecution, and ensure
Visayas, 1 for Midanao compliance therewith.
4. Deputy Ombudsman for military
establishments may also be appointed. 4. Direct the officer concerned, in any
[Section 7] appropriate case, and subject to such
limitations as may be provided by law, to
Qualifications: furnish it with copies of documents relating
1. Natural born citizen to contracts or transactions entered into by
2. At least 40 years of age at the time of the his office involving the disbursement or use
appointment. of public funds or properties, and report
3. Of recognize probity and independence. any irregularity to the Commission on Audit
4. Member of the Philippine Bar. for appropriate action.
5. Not a candidate form any elective position
in the previous election.
5. Request any government agency for
N.B. The Ombudsman must have for ten years or assistance and information necessary in
more been a judge or engaged in the practice of law the discharge of its responsibilities, and to
in the Philippines. [Section 8] examine, if necessary, pertinent records
and documents.
The Ombudsman and his Deputies shall be
appointed by the President from a list of at least six
6. Publicize matters covered by its
nominees prepared by the Judicial and Bar Council,
investigation when circumstances so
and from a list of three nominees for every vacancy
warrant and with due prudence.
thereafter.

Confirmation by the Commission on Appointments 7. Determine the cause of inefficiency, red

NOT required. [Section 9] tape, mismanagement, fraud, and
corruption in the Government and make
Term: 7 years without reappointment. [Section 11] recommendations for their elimination and
the observance of high standards of ethics
Section 13. The Office of the Ombudsman shall have and efficiency.
the following powers, functions, and duties:

1. Investigate on its own, or on complaint by 8. Promulgate its rules of procedure and

any person, any act or omission of any exercise such other powers or perform such
public official, employee, office or agency, functions or duties as may be provided by
when such act or omission appears to be law.
illegal, unjust, improper, or inefficient.

2. Direct, upon complaint or at its own Jurisdiction:

instance, any public official or employee of Disciplinary authority over all elective officials of the
the Government, or any subdivision, agency Government and its subdivisions, instrumentalities
or instrumentality thereof, as well as of any and agencies, including Members of the Cabinet,
government-owned or controlled Local Government, GOCCs and their subsidiaries.
corporation with original charter, to
perform and expedite any act or duty Except: Officials who may be removed only by
required by law, or to stop, prevent, and impeachment or over members of the Congress, and
correct any abuse or impropriety in the the Judiciary.
Y.E.

performance of duties.

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Section 15. The right of the State to recover

properties unlawfully acquired by public officials or Public Office
employees, from them or from their nominees or What: The right, authority or duty, created and
transferees conferred by law, by which for a given period, either
fixed by law or enduring at the pleasure of the
Shall not be barred by prescription, laches, or creating power, an individual is invested with some
estoppel. sovereign power of government to be exercised by
him for the benefit of the public. [Fernandez v. Sto.
Section 16. Tomas, G.R. No. 116418, March 7, 1995]
What: No loan, guaranty, or other form of financial
accommodation for any business purpose may be G.R. No. L-16887 November 17, 1920MIGUEL R.
granted, directly or indirectly, by any government- CORNEJO, petitioner,
owned or controlled bank or financial institution vs.
ANDRES GABRIEL, provincial governor of Rizal, and the
PROVINCIAL BOARD OF RIZAL, composed of ANDRES
Scope of Application: The President, the Vice-
GABRIEL, PEDRO MAGSALIN and CATALINO S.
President, the Members of the Cabinet, the CRUZ, respondents.
Congress, the Supreme Court, and the Constitutional
Commissions, the Ombudsman, or to any firm or
entity in which they have controlling interest, during
Facts:
their tenure.
 The petitioner in this case, the suspended
municipal president of Pasay, Rizal, seeks by
Section 17. these proceedings in mandamus to have the
Who: A public officer or employee shall, upon provincial governor and the provincial board of
assumption of office and as often thereafter as may the Province of Rizal temporarily restrained
be required by law. from going ahead with investigation of the
charges filed against him pending resolution of
What: Submit a declaration under oath of his assets, the case, and to have an order issue directed to
liabilities, and net worth. the provincial governor commanding him to
return the petitioner to his position as municipal
Re The President, the Vice-President, the Members president of Pasay.
of the Cabinet, the Congress, the Supreme Court, the  The members of the provincial board have
Constitutional Commissions and other constitutional interposed a demurrer based on the ground that
offices, and officers of the Armed Forces with this court has no right to keep them from
general or flag rank complying with the provisions of the law.
 The provincial governor has filed an answer to
-Declaration shall be disclosed to the public in the the petition, in which he alleges as a special
manner provided by law. defense that numerous complaints have been
received by him against the conduct of Miguel
Section 18. R. Cornejo, that these complaints were
Who: Public officers and employees investigated by him; that he came to the
conclusion that agreeable to the powers
What: Owe the State and this Constitution allegiance conferred upon provincial governors, the
at all times. municipal president should be temporarily
suspended, and that an investigation is now
Re change his citizenship or acquire the status of an being conducted by the provincial board.
immigrant of another country during his tenure:
Shall be dealt with by law.  Counsel for petitioner has argued, that his client
has been deprived of an office, to which he was
elected by popular vote, without having an
General Principles 
opportunity to be heard in his own defense.
The respondents reply that all that the provincial
governor and the provincial board have done in
Y.E.

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this case is to comply with the requirements of officer is not produced and he is not given an opportunity
the law which they are sworn to enforce. to confront his accusers and cross-examine the witnesses.

Issue: WON the Provincial Governor may suspend the Justification: Griner vs.Thomas ([1907], 101 Texas, 36; 16
erring Municipal President of Pasay without due process of Ann. Cas., 944). The holding of the court here was that it is
law within the power of the legislature to authorize the
temporary suspension of a public officer during the
Held: Yes, it is only fair to mention certain exceptions to the pendency of valid proceedings to remove such officer and
due process of law rule, which would seem to include the as an incident to such proceedings, notwithstanding the
instant case. fact that the constitution has given power to remove such
officer only for cause and after a hearing. Notice and
hearing are not prerequisites to the suspension of a public
Ratio: The fact should not be lost sight of that we are
officer under a statute which does not provide for such
dealing with an administrative proceeding and not with a
notice and hearing.
judicial proceeding. In certain proceedings, therefore, of an
administrative character, it may be stated, without fear of
contradiction, that the right to a notice and hearing are not Our holding, after most thoughtful consideration, is that
essential to due process of law. the provisions of section 2188 of the Administrative Code
are clear and that they do not offend the due process of
law clause of the Philippine Bill of Rights. Accordingly, it is
Again, for this petition to come under the due process of
our duty to apply the law without fear or favor.
law prohibition, it would be necessary to consider an office
as "property." It is, however, well settled in the United
States, that a public office is not property within the sense
of the constitutional guaranties of due proces of law, but is
G.R. No. 116418 March 7, 1995SALVADOR C. FERNANDEZ
a public trust or agency.
and ANICIA M. DE LIMA, petitioners,
vs.
The basic idea of government in the Philippine Islands, as HON. PATRICIA A. STO. TOMAS, Chairman, and HON.
in the United States, is that of a popular representative RAMON B. ERENETA, Commissioner, Civil Service
government, the officers being mere agents and not rulers Commission, respondents.
of the people, one where no one man or set of men has a
proprietary or contractual right to an office, but where
Facts:
every officer accepts office pursuant to the provisions of
the law and holds the office as a trust for the people whom
he represents.  Petitioner Fernandez was serving as Director of
the Office of Personnel Inspection and Audit
("OPIA") while petitioner de Lima was serving as
"Power to suspend may be exercised without notice to the
Director of the Office of the Personnel Relations
person suspended."
("OPR"), both at the Central Office of the Civil
Service Commission in Quezon City,
(1) The suspension of an officer pending his trial for Metropolitan Manila.
misconduct, so as to tie his hands for the time being, seems  While petitioners were so serving, Resolution No.
to be universally accepted as fair, and often necessary. 94-3710 signed by public respondents Patricia A.
Sto. Tomas and Ramon Ereneta, Jr., Chairman
Justification: Suspension does not remove the officer, but and Commissioner, respectively, of the
merely prevents him, for the time being, from performing Commission, was issued on 7 June 1994.
the functions of his office; and from the very necessities of  Petitioners then instituted this Petition. The
the case must precede a trial or hearing. Such temporary Court required public respondents to file a
suspension without previous hearing is fully in accordance Comment on the Petition.
with the analogies of the law.  Petitioners filed an Urgent Motion for Issuance of
a Temporary Restraining Order, alleging that
(2) Notice and hearing are not prerequisite to suspension petitioners had received Office Orders from the
unless required by statute and therefore suspension Commission assigning petitioner Fernandez to
without such notice does not deprive the officer of Region V at Legaspi City and petitioner de Lima to
property without due process of law. Nor is a suspension Region III in San Fernando, Pampanga and
wanting in due process of law or a denial of the equal praying that public respondents be restrained
protection of the laws because the evidence against the from enforcing these Office Orders.
Y.E.

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 The Court, in a Resolution, granted this Motion the Court that the changes introduced and formalized
and issued the Temporary Restraining Order through Resolution No. 94-3710 — re-naming of existing
prayed for by petitioners. Offices; re-arrangement of the groupings of Divisions and
 The Commission filed its own Comment, and Sections composing particular Offices; re-allocation of
then moved to lift the Temporary Restraining existing functions (and related personnel; budget, etc.)
Order. among the re-arranged Offices — are precisely the kind of
 The Office of the Solicitor General filed a internal changes which are referred to in Section 17 (Book
separate Comment, defending the validity of V, Title I, Subtitle A, Chapter 3) of the 1987 Revised
Resolution No. 94-3710 and urging dismissal of Administrative Code), quoted above, as "chances in the
the Petition. organization" of the Commission.

Issue: (1) WON the Civil Service Commission had legal Issue: (2) WON Resolution No. 94-3710 effected the
authority to issue Resolution No. 94-3710 to the extent it "abolition" of public offices, something which may be done
merged the OCSS [Office of Career Systems and Standards], only by the same legislative authority which had created
the OPIA [Office of Personnel Inspection and Audit] and the those public offices in the first place.
OPR [Office of Personnel Relations], to form the RDO
[Research and Development Office] Held: No

Held: Yes Ratio: The term "public office" is frequently used to refer
to the right, authority and duty, created and conferred by
Ratio: What did Resolution No. 94-3710 of the law, by which, for a given period either fixed by law or
Commission do? The Commission re-arranged some of the enduring at the pleasure of the creating power, an
administrative units (i.e., Offices) within the Commission individual is invested with some portion of the sovereign
and, among other things, merged three (3) of them (OCSS, functions of government, to be exercised by that individual
OPIA and OPR) to form a new grouping called the for the benefit of the public. We consider that Resolution
"Research and Development Office (RDO)." The same No. 94-3710 has not abolished any public office as that
Resolution renamed some of the Offices of the term is used in the law of public officers. It is essential to
Commission. The Commission also re-allocated certain note that none of the "changes in organization" introduced
functions moving some functions from one Office to by Resolution No. 94-3710 carried with it or necessarily
another. This re-allocation or re-assignment of some involved the termination of the relationship of public
functions carried with it the transfer of the budget employment between the Commission and any of its
earmarked for such function to the Office where the officers and employees. The legislative authority
function was transferred. Moreover, the personnel, had expressly authorized the Commission to carry out
records, fixtures and equipment that were devoted to the "changes in the organization," as the need [for such
carrying out of such functions were moved to the Offices to changes] arises." Assuming, for purposes of argument
where the functions were transferred. merely, that legislative authority was necessary to carry
out the kinds off changes contemplated in Resolution No.
Purpose: Effecting changes in the organization to 94-3710 (and the Court is not saying that such authority is
streamline [the Commission's] operations and improve necessary), such legislative authority was validly delegated
delivery of service to the end that the Commission and its to the Commission by Section 17 earlier quoted. The
staff may be brought closer physically to the government legislative standards to be observed and respected in the
employees that they are mandated to serve. exercise of such delegated authority are set out not only in
Section 17 itself (i.e., "as the need arises"), but also in the
Declaration of Policies found in Book V, Title I, Subtitle A,
The dispersal of the functions of the Commission to the Section 1 of the 1987 Revised Administrative Code.
Regional Offices and the Field Offices attached to various
governmental agencies throughout the country makes
possible the implementation of new programs of the Issue:(3) WON Resolution No. 94-3710 violated petitioners'
Commission at its Central Office in Metropolitan Manila constitutional right to security of tenure.

It thus appears to the Court that the Commission was Held: No

moved by quite legitimate considerations of administrative
efficiency and convenience in promulgating and Ratio: That security of tenure is an essential and
implementing its Resolution No. 94-3710 and in assigning constitutionally guaranteed feature of our Civil Service
petitioner Salvador C. Fernandez to the Regional Office of System, is not open to debate. The mantle of its protection
the Commission in Region V in Legaspi City and petitioner extends not only against removals without cause but also
against unconsented transfer which, as repeatedly
Y.E.

Anicia M. de Lima to the Commission's Regional Office in

Region III in San Fernando, Pampanga. It is also clear to enunciated, are tantamount to removals which are within

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the ambit of the fundamental guarantee. However, the 2. Public office is not property. NOT being
availability of that security of tenure necessarily depends, property is not protected by the due
in the first instance, upon the nature of the appointment. process clause.
Such that the rule which proscribes transfers without 3. NOT a heritable possession.
consent as anathema to the security of tenure is predicated
4. Outside the commerce of man.
upon the theory that the officer involved is appointed — not
merely assigned — to a particular station

We note, firstly, that appointments to the staff of the

Elements of Public Office
Commission are not appointments to a specified public
office but rather appointments to particular positions or
(LD-DIP)
ranks. Thus, a person may be appointed to the position of 1. Created by LAW or by authority by law.
Director III or Director IV; or to the position of Attorney IV 2. DELAGATION of a portion of the sovereign
or Attorney V; or to the position of Records Officer I or powers of the government, to be exercised
Records Officer II; and so forth. In the instant case, for the benefit of the public.
petitioners were each appointed to the position of Director 3. The powers conferred and the duties to be
IV, without specification of any particular office or station.
discharged must be defined DIRECTLY or
The same is true with respect to the other persons holding
the same position or rank of Director IV of the Commission.
impliedly by the legislature or through
legislative authority.
4. Duties must be performed INDEPENDENTLY
It follows that the reassignment of petitioners Fernandez
and de Lima from their previous positions in OPIA and OPR, and without the control of a superior power
respectively, to the Research and Development Office other than the law, unless they be those of
(RDO) in the Central Office of the Commission in an inferior or subordinate office created or
Metropolitan Manila and their subsequent assignment authorized by the legislature, and by it
from the RDO to the Commission's Regional Offices in placed under the general control of a
Regions V and III had been effected with express statutory superior office or body.
authority and did not constitute removals without lawful 5. Must have PERMANENCE or continuity, not
cause. It also follows that such re-assignment temporary or occasional.
did not involve any violation of the constitutional right of
petitioners to security of tenure considering that they
G.R. No. L-23226 March 4, 1925
retained their positions of Director IV and would continue
to enjoy the same rank, status and salary at their new
assigned stations which they had enjoyed at the Head VICENTESEGOVIA, petitioner-appellee,
Office of the Commission in Metropolitan Manila. vs.
Petitioners had not, in other words, acquired a vested right PEDRO NOEL, respondent-appellant.
to serve at the Commission's Head Office.
MALCOLM, J.:
For all the foregoing we conclude that the reassignment of
petitioners Fernandez and de Lima from their stations in Facts:
the OPIA and OPR, respectively, to the Research
Development Office (RDO) and from the RDO to the
 Vicente Segovia was appointed justice of the
Commissions Regional Offices in Regions V and III,
peace of Dumanjug, Cebu, on January 21, 1907.
respectively, without their consent, did not constitute a
He continuously occupied this position until
violation of their constitutional right to security of tenure.
having passed sixty-five mile- stones.
 He was ordered by the Secretary of Justice on
Characteristics July 1, 1924, to vacate the office. Since that date,
Pedro Noel, the auxiliary justice of the peace has
1. Public office is a public trust. Employees acted as justice of the peace for the municipality
must at all means be accountable to the of Dumanjug.
people serve them with utmost  Mr. Segovia being desirous of avoiding a public
responsibility, integrity, loyalty and scandal and of opposing physical resistance to
efficiency, and act with patriotism, justice the occupancy of the office of justice of the peace
by the auxiliary justice of the peace, instituted
and lead with modest lives.
friendly quo warranto proceedings in the Court
of First Instance of Cebu to inquire into the right
Y.E.

of Pedro Noel to occupy the office of justice of

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the peace, to oust the latter therefrom, and to Issue: WON that portion of Act No. 3107 which provides,
procure reinstatement as justice of the peace of that justices of the peace and auxiliary justices of the peace
Dumanjug. shall be appointed to serve until they have reached the age
 Pedro Noel interposed a demurrer on the ground of sixty- five years, should be given retroactive or
that it did not allege facts sufficient to constitute prospective effect.
a cause of action, because Act No. 3107 was
constitutional and because Mr. Segovia being Held: A sound canon of statutory construction is that a
sixty-five years old had automatically ceased to statute operates prospectively only and never
be justice of the peace. retroactively, unless the legislative intent to the contrary is
made manifest either by the express terms of the statute
Petitioner’s contention: Section 1 of Act No. 3107 is or by necessary implication.
unconstitutional in that it impairs the contractual right of
the petitioner to an office. It is a fundamental principle that Ratio: The same rule is followed by the courts with
a public office cannot be regarded as the property of the reference to public offices. A well-known New York
incumbent, and that a public office is not a contract. decision held that "though there is no vested right in an
office, which may not be disturbed by legislation, yet the
 Section 67 of Act No. 136, wherein it was incumbent has, in a sense, a right to his office. If that right
provided that justices of the peace shall hold is to be taken away by statute, the terms should be clear in
office during the pleasure of the Commission. Act which the purpose is stated." (People ex rel. Ryan vs.
No. 1450, in force when Vicente Segovia was Green [1874], 58 N.Y., 295.) In another case, a new
originally appointed justice of the peace, constitutional provision as to the advanced age which
amended section 67 of the Judiciary Law by should prevent the incumbents of certain judicial offices
making the term of office of justices and auxiliary from retaining them was held prospective; it did not apply
justices of the peace two years from the first to persons in office at the time of its taking effect
Monday in January nearest the date of
appointment. Shortly after Segovia's The language of Act No. 3107 amendatory of section 203 of
appointment, however, the law was again the Administrative Code, gives no indication of retroactive
amended by Act No. 1627 by providing that "all effect. The law signifies no purpose of operating upon
justices of the peace and auxiliary justices of the existing rights. A proviso was merely tacked on to section
peace shall hold office during good behavior and 203 of the Administrative Code, while leaving intact section
those now in office shall so continue." Later 206 of the same Code which permits justices of the peace
amended by Acts Nos. 2041 and 2617, the law to hold office during good behavior. In the absence of
was ultimately codified in sections 203 and 206 provisions expressly making the law applicable to justices
of the Administrative Code. of the peace then in office, and in the absence of provisions
 Codal section 203 in its first paragraph provides impliedly indicative of such legislative intent, the courts
that "one justice of the peace and one auxiliary would not be justified in giving the law an interpretation
justice of the peace shall be appointed by the which would legislate faithful public servants out of office.
Governor-General for the City of Manila, the City
of Baguio, and for each municipality, township,
Answering the question with which we began our decision,
and municipal district in the Philippine Islands,
we hold that the proviso added to section 203 of the
and if the public interests shall so require, for any
Administrative Code by section 1 of Act No. 3107, providing
other minor political division or unorganized
that justices and auxiliary justices of the peace shall be
territory in said Islands." It was this section which
appointed to serve until they have reached the age of sixty-
section 1 of Act No. 3107 amended by adding at
five years, should be given prospective effect only, and so
the end thereof the following proviso: "Provided,
is not applicable to justices of the peace and auxiliary
That justices and auxiliary justices of the peace
justices of the peace appointed before Act No. 3107 went
shall be appointed to serve until they have
into force. Consequently, it results that the decision of the
reached the age of sixty-five years." But section
trial court is correct in its findings of fact and law and in its
206 of the Administrative Code entitled "Tenure
disposition of the case.
of office," and reading "a justice of the peace
having the requisite legal qualifications shall hold
office during good behavior unless his office be G.R. No. L-24806 February 13, 1926
lawfully abolished or merged in the jurisdiction of
some other justice," was left unchanged by Act JULIOAGCAOILI,plaintiff-appellant,
No. 3107. vs.
ALBERTO SUGUITAN, defendant-appellee.
Y.E.

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JOHNSON, J.: which may be enacted into law shall embrace more than
one subject, and that the subject shall be expressed in the
N.B. Same Ratio in the case of Segovia vs. Noel (47 Phil., title of the bill."
543)
 That on the 9th day of April, 1923, the
Facts: Undersecretary of Justice sent a letter to the said
Julio Agcaoili, through the Judge of the Court of
First Instance of the Third Judicial District, of the
 Julio Agcaoili was appointed as justice of the
Province of Ilocos Sur to cease to be a justice of
peace of the municipality of Laoag, of the
the peace by operation of said amendment of the
Province of Ilocos Norte, by Francis Burton
Administrative Code.
Harrison.
 Agcaoili entered a protest stating that Has this
amendment retroactive effect? In the first place
The conditions prescribed by law" to which the appointee the legislature could not give or have given this
was "subject" at the time of his appointment, are found in Act such a character, and if it had intended to do
section 1 of Act No. 2041. Said section is amendment to so, it would have so stated; and in the second
section 67 of Act No. 136, and provides among other things place, because not only is such express
for the "appointment and term of the justices of the declaration lacking in the law but Act No. 3107
peace." It provides that one justice of the peace and one very clearly provides that the justices of the
auxiliary justice shall be appointed by the Governor- peace and auxiliary justices of the peace to be
General, etc., for each municipality organized according to appointed shall hold office until they attain the
the Municipal Code. Said section further provides that "All age of 65 years.
justices of the peace and auxiliary justices shall hold office  Julio Agcaoili patiently waited in vain for a
during good behavior. resolution by the Secretary of Justice of the
protest which he presented; and not having
 That on the 17th day of March, 1923, the received any reply to his protest, filed a petition
Philippine Legislature, adopted Act No. 3107, for a writ of quo warranto in the Court of First
which was "an Act to amend and repeal certain Instance of the Province of Ilocos Norte.
provisions of the Administrative Code relative to
the judiciary in order to reorganize the latter; Issue: WON the provision of Act No. 3107, in so far as it
increasing the number of judges for certain provides that "justices of the peace shall be appointed to
judicial districts; increasing the salaries of judges serve until they have reached the age of 65 years," valid
of Courts of First Instance; vesting the Secretary and constitutional, when applied to justices of the peace
of Justice with authority to detail a district judge appointed under Act No. 2041, section 1, to serve "during
temporarily to a district or province other than good behavior?
his own; regulating the salaries of justices of the
peace; abolishing the municipal court and justice
Held: No
of the peace court of the City of Manila and
creating in lieu thereof a municipal court with
three branches; regulating the salaries of clerks Ratio: Why the Undersecretary of Justice did not follow the
of court and other subordinate employees of orderly procedure marked out by Act No. 190 is not
Courts of First Instance, and for other purposes. explained. The appellant was given no hearing. Even his
protest, couched in most humble and respectful language,
fell upon deaf ears. Absolute indifference was shown to the
Notwithstanding the fact that the title of said Act No.
respectful protest and the able argument given in support
(3107), so far as the same relates to justice of the peace,
thereof. The only answer to his protest was a threat of a
provides only for "regulating the salaries of justices of the
criminal prosecution if he did not vacate his office. His
peace," said Act in section 203 provides for "the
humility was met with austereness. His humble petition
appointment and distribution of justices of the peace" with
was met with a threat. His patient waiting for a reply to his
the proviso in said section ". . . That justices and auxiliary
protest was ended by a demand that he be prosecuted for
justices of the peace shall be appointed to serve until they
refusing to comply with an order by one who was not
have reached the age of sixty-five years." Attention is here
willing to follow the well-defined and well-beaten road of
called to the fact again that there is nothing in the title of
"due process of law" by preferring charges and giving the
the Act, which, in the slightest degree, indicates that said
appellant an opportunity to be heard and to defend his
Act contains provisions for "appointment of justices of the
right. Nothing of that character took place. The whole
of the peace" nor as to the period during which they may
procedure, from beginning to end, in ousting the appellant
serve after appointment. Attention is here called to the
from an office to which he had been legally appointed and
Y.E.

provision of the Act of Congress of the 29th day of August,

1916, and to section 3 thereof, which provides "That no bill

8
 Law on Public Officers

against whom no complaint has been made, is anomalous  It was further asserted that there was no need
in the jurisprudence under the American flag. for such a provision as "the income tax law and
the tax census law also require statements which
The judgment appealed from should be revoked, and a can serve to determine whether an officer or
judgment should be entered ordering the restoration of employee in this Republic has enriched himself
the appellant to the office from which he was illegally out of proportion to his reported income.
rejected. We should follow the effect of the doctrine
announced solemnly by this court in the case of Segovia vs. Answer of the then Executive Secretary: That when a
Noel (47 Phil., 543). So ordered. government official, like plaintiff, accepts a public position,
he is deemed to have voluntarily assumed the obligation to
give information about his personal affair, not only at the
time of his assumption of office but during the time he
continues to discharge public trust. The private life of an
G.R. No. L-20387 January 31, 1968 employee cannot be segregated from his public life. . .
." 9 The answer likewise denied that there was a violation of
JESUS P. MORFE, plaintiff-appellee, his constitutional rights against self-incrimination as well as
vs. unreasonable search and seizure and maintained that "the
AMELITO R. MUTUC, as Executive Secretary, ET AL., provision of law in question cannot be attacked on the
defendants-appellants. ground that it impairs plaintiff's normal and legitimate
enjoyment of his life and liberty because said provision
FERNANDO, J.: merely seeks to adopt a reasonable measure of insuring
the interest or general welfare in honest and clean public
service and is therefore a legitimate exercise of the police
Facts:
power.

 Plaintiff, after asserting his belief "that it was a

Lower Court: Declared "unconstitutional, null and void
reasonable requirement for employment that a
Section 7, Republic Act No. 3019, insofar as it required
public officer make of record his assets and
periodical submittal of sworn statements of financial
liabilities upon assumption of office and thereby
conditions, assets and liabilities of an official or employee
make it possible thereafter to determine
of the government after he had once submitted such a
whether, after assuming his position in the public
sworn statement upon assuming office
service, he accumulated assets grossly
disproportionate to his reported incomes, the
herein plaintiff [having] filed within the period of Issue: (1) WON not by virtue of the above requirement for
time fixed in the aforesaid Administrative Order a periodical submission of sworn statement of assets and
No. 334 the prescribed sworn statement of liabilities, there is an invasion of liberty protected by the
financial condition, assets, income and liabilities, due process clause.
maintained that the provision on the "periodical
filing of sworn statement of financial condition, Held: No
assets, income and liabilities after an officer or
employee had once bared his financial condition, Ratio: Anti-Graft Act of 1960, after the statement of
upon assumption of office, is oppressive and policy, and definition of terms, there is an enumeration of
unconstitutional. corrupt practices declared unlawful in addition to acts or
 Protection of due process and the assurance of omissions of public officers already penalized by existing
the privacy of the individual as may be inferred law which includes “the requirement of a statement of
from the prohibition against unreasonable assets and liabilities, that portion requiring periodical
search and seizure and self-incrimination were submission being challenged here”.
relied upon. There was also the allegation that
the above requirement amounts to "an insult to
the personal integrity and official dignity" of Nothing can be clearer therefore than that the Anti-Graft
Act of 1960 like the earlier statute 32 was precisely aimed
public officials, premised as it is "on the
unwarranted and derogatory assumption" that at curtailing and minimizing the opportunities for official
corruption and maintaining a standard of honesty in the
they are "corrupt at heart" and unless thus
restrained by this periodical submission of the public service. It is intended to further promote morality in
statements of "their financial condition, income, public administration. A public office must indeed be a
public trust. Nobody can cavil at its objective; the goal to
and expenses, they cannot be trusted to desist
from committing the corrupt practices defined. be pursued commands the assent of all. The conditions
Y.E.

9
 Law on Public Officers

then prevailing called for norms of such character. The that matter, from the imputation of legal infirmity
times demanded such a remedial device. sufficient to spell its doom? It is responsiveness to the
supremacy of reason, obedience to the dictates of justice.
The statute was framed with that end in view. It is Negatively put, arbitrariness is ruled out and unfairness
comprehensive in character, sufficiently detailed and avoided. To satisfy the due process requirement, official
explicit to make clear to all and sundry what practices were action, to paraphrase Cardozo, must not outrun the bounds
prohibited and penalized. More than that, an effort was of reason and result in sheer oppression. Due process is
made, so evident from even a cursory perusal thereof, to thus hostile to any official action marred by lack of
avoid evasions and plug loopholes. One such feature is the reasonableness. Correctly has it been identified as freedom
challenged section. Thereby it becomes much more from arbitrariness. It is the embodiment of the sporting
difficult by those disposed to take advantage of their idea of fair play. It exacts fealty 'to those strivings for
positions to commit acts of graft and corruption. justice' and judges the act of officialdom of whatever
branch 'in the light of reason drawn from considerations of
fairness that reflect [democratic] traditions of legal and
What is under consideration is a statute enacted under the
political thought.' It is not a narrow or 'technical conception
police power of the state to promote morality in public
with fixed content unrelated to time, place and
service necessarily limited in scope to officialdom.
circumstances,' decisions based on such a clause requiring
a 'close and perceptive inquiry into fundamental principles
" In accordance with this case therefore, the rights of the of our society.' Questions of due process are not to be
citizens to be free to use his faculties in all lawful ways; to treated narrowly or pedantically in slavery to form or
live and work where he will; to earn his livelihood by any phrases." 56
lawful calling; to pursue any avocation, are all deemed
embraced in the concept of liberty. This Court in the same
It would be to dwell in the realm of abstractions and to
case, however, gave the warning that liberty as understood
ignore the harsh and compelling realities of public service
in democracies, is not license. Implied in the term is
with its ever-present temptation to heed the call of greed
restraint by law for the good of the individual and for the
and avarice to condemn as arbitrary and oppressive a
greater good, the peace and order of society and the
requirement as that imposed on public officials and
general well-being. No one can do exactly as he pleases.
employees to file such sworn statement of assets and
Every man must renounce unbridled license. In the words
liabilities every two years after having done so upon
of Mabini as quoted by Justice Malcolm, "liberty is freedom
assuming office. The due process clause is not susceptible
to do right and never wrong; it is ever guided by reason and
to such a reproach. There was therefore no
the upright and honorable conscience of the individual."
unconstitutional exercise of police power.

Liberty, in the interest of public health, public order or

Issue: (2) WON the right to privacy of petitioner has been
safety, of general welfare, in other words through the
violated by challenged provision
proper exercise of the police power, may be regulated.

Held: No
Is this provision for a periodical submission of sworn
statement of assets and liabilities after he had filed one
upon assumption of office beyond the power of Ratio: Even with due recognition of such a view, it cannot
government to impose? Admittedly without the challenged be said that the challenged statutory provision calls for
provision, a public officer would be free from such a disclosure of information which infringes on the right of a
requirement. To the extent then that there is a compulsion person to privacy. It cannot be denied that the rational
to act in a certain way, his liberty is affected. It cannot be relationship such a requirement possesses with the
denied however that under the Constitution, such a objective of a valid statute goes very far in precluding
restriction is allowable as long as due process is observed. assent to an objection of such character. This is not to say
that a public officer, by virtue of a position he holds, is
bereft of constitutional protection; it is only to emphasize
The more crucial question therefore is whether there is an
that in subjecting him to such a further compulsory
observance of due process.
revelation of his assets and liabilities, including the
statement of the amounts and sources of income, the
"There is no controlling and precise definition of due amounts of personal and family expenses, and the amount
process. It furnishes though a standard to which of income taxes paid for the next preceding calendar year,
governmental action should conform in order that there is no unconstitutional intrusion into what otherwise
deprivation of life, liberty or property, in each appropriate would be a private sphere.
case, be valid. What then is the standard of due process
which must exist both as a procedural and as substantive
Issue: (3) WON as the challenged provision requires the
Y.E.

requisite to free the challenged ordinance, or any action for

periodical filing of a sworn statement of financial condition,

10
 Law on Public Officers

it would be violative of the guarantees against Ratio: On its face, it cannot thus be stigmatized. As to its
unreasonable search and seizure and against self- being unnecessary, it is well to remember that this Court,
incrimination in the language of Justice Laurel, "does not pass upon
questions of wisdom, justice or expediency of
Held: No legislation." 82 As expressed by Justice Tuason: "It is not
the province of the courts to supervise legislation and
Ratio: Stonehill v. Diokno, 73 where this Court, through keep it within the bounds of propriety and common
Chief Justice Concepcion, after stressing that the sense. That is primarily and exclusively a legislative
constitutional requirements must be strictly complied with, concern." 83 There can be no possible objection then to
and that it would be "a legal heresy of the highest order" the observation of Justice Montemayor: "As long as laws
to convict anybody of a violation of certain statutes without
do not violate any Constitutional provision, the Courts
reference to any of its determinate provisions delimited its
merely interpret and apply them regardless of whether or
scope as "one of the most fundamental rights guaranteed
in our Constitution," safeguarding "the sanctity, of the not they are wise or salutary." 84 For they, according to
domicile and the privacy of communication and Justice Labrador, "are not supposed to override legitimate
correspondence. . . ." Such is precisely the evil sought to be policy and . . . never inquire into the wisdom of the law."
remedied by the constitutional provision above quoted —
to outlaw the so-called general warrants. This is as it ought to be. The principle of separation of
powers has in the main wisely allocated the respective
It thus appears clear that no violation of the guarantee authority of each department and confined its jurisdiction
against unreasonable search and seizure has been shown to such a sphere. There would then be intrusion not
to exist by such requirement of further periodical allowable under the Constitution if on a matter left to the
submission of one's financial condition as set forth in the discretion of a coordinate branch, the judiciary would
Anti-Graft Act of 1960. substitute its own. If there be adherence to the rule of law,
as there ought to be, the last offender should be courts of
Nor does the contention of plaintiff gain greater justice, to which rightly litigants submit their controversy
plausibility, much less elicit acceptance, by his invocation precisely to maintain unimpaired the supremacy of legal
of the non-incrimination clause. According to the norms and prescriptions. The attack on the validity of the
Constitution: "No person shall be compelled to be a witness challenged provision likewise insofar as there may be
against himself." 74 This constitutional provision gives the objections, even if valid and cogent on its wisdom cannot
accused immunity from any attempt by the prosecution to be sustained.
make easier its task by coercing or intimidating him to
furnish the evidence necessary to convict. He may confess, WHEREFORE, the decision of the lower court of July 19,
but only if he voluntarily wills it. He may admit certain facts 1962 "declaring unconstitutional, null and void Section 7,
but only if he freely chooses to.75 Or he could remain silent, Republic Act No. 3019, insofar as it requires periodical
and the prosecution is powerless to compel him to submittal of sworn statements of financial conditions,
talk. 76 Proof is not solely testimonial in character. It may assets and liabilities of an official or employee of the
be documentary. Neither then could the accused be government after he had once submitted such a sworn
ordered to write, when what comes from his pen may statement . . . is reversed." Without costs.
constitute evidence of guilt or innocence. Moreover, there
can be no search or seizure of his house, papers or effects
for the purpose of locating incriminatory matter. Even if a
constitutional right be involved, it is not necessary to
invalidate the statute to secure its protection. If, in this
Public Officer
Who: A public officer is an individual vested with
particular case, the constitutional privilege justified the
refusal to give the information exacted by the statute, that
some portion of sovereign functions of the State to
question can be raised in the defence to the pending be exercised by him for the benefit of the public.
prosecution. Whether it would avail, we are not called [Alba vs Evangelista, Gr Nos. L-10360 and L-10433,
upon to decide in this proceeding. January 17,1957]

Issue: (4) WON provision can be nullified on the allegation

that it constitutes "an insult to the personal integrity and As Distinguished from
official dignity" of public officials.
other Laws
Held: No
Y.E.

11
 Law on Public Officers

E.O. 292 E.O. 292 whether or not they receive

compensation, regardless of
Administrative Code of Administrative Code of
amount
1982, Sec. 2 (14) 1982, Sec. 2 (15)
Public Officer Clerk or Employee
A person whose duties, not “Employee” when used with
being of a clerical or manual reference to a person in the ALFREDO L. AZARCON, petitioner,
nature, involves the exercise public service, includes any vs. SANDIGANBAYAN, PEOPLE OF THE
of discretion in the person in the service of the
PHILIPPINES and JOSE C.
performance of the functions government or any of its
BATAUSA, respondents.
of the government. When agencies, divisions,
used with reference to a subdivisions or PANGANIBAN, J.:
person having authority to do instrumentalities.
a particular act or perform a
particular function in the Although the National Internal Revenue Code authorizes
exercise of governmental the Bureau of Internal Revenue to effect a constructive
power, “officer” includes any distraint by requiring any person to preserve the distrained
government employee, agent property, there is no provision constituting such person as
or body having authority to
a public officer by reason of such requirement. The
do the act or exercise that
Sandiganbayan, therefore, has no jurisdiction over the case
function.
involving such a person

As to Scope
Facts:
Delegation of some of the No exercise of portion of the
sovereign functions of the sovereign power of the
Government. Government.  Petitioner Alfredo Azarcon owned and operated
Involves exercise of Duties are clerical or manual an earth-moving business, hauling dirt and ore.
discretion nature. His services were contracted by the Paper
As to Requisites Industries Corporation of the Philippines (PICOP)
Required to take an oath or Oath and bond are not at its concession in Mangagoy, Surigao del Sur.
official bond. required. Occasionally, he engaged the services of sub-
contractors like Jaime Ancla whose trucks were
Article 203 of the Section 2 of R.A. 3019 left at the formers premises. From this set of
Revised Penal Code or The Anti-Graft and circumstances arose the present controversy.
Corrupt Practices Act  A Warrant of Distraint of Personal Property was
issued by the Main Office of the Bureau of
Any person who, by direct Public officer includes Internal Revenue (BIR) addressed to the Regional
provision of law, popular elective and appointive Director (Jose Batausa) or his authorized
election or appointment by officials and employees, representative of Revenue Region 10, Butuan
competent authority, shall permanent or temporary, City commanding the latter to distraint the
take part in the performance whether in the classified, goods, chattels or effects and other personal
of public functions in the unclassified or exempt property of Jaime Ancla, a sub-contractor of
Government of the Philippine service, receiving
accused Azarcon and, a delinquent taxpayer. The
Islands, or shall perform in compensation, even nominal,
said Government or in any of from the government. Warrant of Garnishment was issued to accused
its branches, public duties as Alfredo Azarcon ordering him to transfer,
an employee, agent or surrender, transmit and/or remit to BIR the
subordinate official, of any property in his possession owned by taxpayer
rank or class, shall be Ancla
deemed to be a public  Petitioner Azarcon, in signing the Receipt for
officer.
Goods, Articles, and Things Seized Under
Authority of the National Internal Revenue,
Section 3 of R.A. 6713 Section 1 of R.A. 7080 assumed the undertakings specified in the
or The Conduct of or The Act defining the receipt the contents of which are reproduced as
Ethical Standards crime of Plunder follows: (Blue Isuzu dump truck)
"Public Officials" includes Public Officer means any
 The petitioner reported the taking of the truck by
elective and appointive person holding any public
officials and employees, office in the Government of Ancla to the security manager of PICOP, Mr.
permanent or temporary, the Republic of the Delfin Panelo, and requested him to prevent this
whether in the career or non- Philippines by virtue of an truck from being taken out of the PICOP
Y.E.

career service, including appointment, election or concession. By the time the order to bar the
military and police personnel, contract. trucks exit was given, however, it was too late.

12
 Law on Public Officers

 Regional Director Batausa responded in a letter felonies mentioned in this paragraph where the penalty
stating that Azarcon voluntarily assumed the prescribed by law does not exceed prision correccional or
liabilities of safekeeping and preserving the unit imprisonment for six (6) years or a fine of P6,000.00 shall
in behalf of the Bureau of Internal Revenue. be tried by the proper Regional Trial Court, Metropolitan
Indicated in the provisions of the Warrant of Trial Court, Municipal Trial Court and Municipal Circuit Trial
Garnishment and Azarons’s failure to observe Court.
said provisions does not relieve the latter of his
responsibility. In case private individuals are charged as co-principals,
 The Sandiganbayan found that the revenue accomplices or accessories with the public officers or
document processor of region 10 sent a report to employees, including those employed in government-
the collection branch regarding the taking of the owned or controlled corporations, they shall be tried
truck and that Ancla was renting it to a certain jointly with said public officers and employees.
Oscar Cuevas at PICOP. She suggested that a
warrant of garnishment be issued to Cuevas but
The foregoing provisions unequivocally specify the only
instead she filed a letter complaint against
instances when the Sandiganbayan will have jurisdiction
Azarcon and Ancla.
over a private individual, i.e. when the complaint charges
 Fiscal Montenegro forwarded the complaint to
the private individual either as a co-principal, accomplice
the Office of the Tanodbayan. He was granted
or accessory of a public officer or employee who has been
authority to conduct preliminary investigation.
charged with a crime within its jurisdiction.
 Azarcon and Ancla were charged before the
Sandiganbayan with the crime of malversation of Article 203 of the RPC determines who are public officers:
public funds or property under Article 217 in
relation to Article 222 of the Revised Penal Code. Who are public officers. -- For the purpose of applying the
 Petitioner filed a motion for reinvestigation provisions of this and the preceding titles of the book, any
before the Sandiganbayan alleging that 1) the person who, by direct provision of the law, popular
petitioner never appeared in the preliminary election, popular election or appointment by competent
investigation; and (2) the petitioner was not a authority, shall take part in the performance of public
public officer, hence a doubt exists as to why he functions in the Government of the Philippine Islands, or
was being charged with malversation under shall perform in said Government or in any of its branches
Article 217 of the Revised Penal Code. public duties as an employee, agent, or subordinate
official, of any rank or classes, shall be deemed to be a
public officer.
Sandiganbayan: rendered a decision a finds Azarcon Guilty
beyond reasonable doubt of malversation. Ancla, on the Granting arguendo that the petitioner, in signing the
other hand has not yet been brought within the jurisdiction receipt for the truck constructively distrained by the BIR,
of this Court up to this date, let this case be archived as commenced to take part in an activity constituting public
against him without prejudice to its revival in the event of functions, he obviously may not be deemed authorized by
his arrest or voluntary submission to the jurisdiction of this popular election.The next logical query is whether
Court. petitioners designation by the BIR as a custodian of
distrained property qualifies as appointment by direct
Issue: WON Sandiganbayan have jurisdiction over a private provision of law, or by competent authority. We answer in
individual who is charged with malversation of public funds the negative.
as a principal after the said individual had been designated However, we find no provision in the NIRC constituting
by the Bureau of Internal Revenue as a custodian of such person a public officer by reason of such
distrained property. requirement. The BIRs power authorizing a private
Held: The Sandiganbayan has no jurisdiction. individual to act as a depositary cannot be stretched to
include the power to appoint him as a public officer. The
Ratio: SEC. 4. Jurisdiction. -- The Sandiganbayan shall prosecution argues that Article 222 of the Revised Penal
exercise: (a) Exclusive original jurisdiction in all cases Code x x x defines the individuals covered by the term
involving: officers under Article 217[39] x x x of the same Code.[40] And
accordingly, since Azarcon became a depository of the
(2) Other offenses or felonies committed by public officers truck seized by the BIR he also became a public officer who
and employees in relation to their office, including those can be prosecuted under Article 217 The Court is not
employed in government-owned or controlled persuaded.
corporations, whether simple or complexed with other
After a thorough review of the case at bench, the Court
crimes, where the penalty prescribed by law is higher than
thus finds petitioner Alfredo Azarcon and his co-accused
prision correccional or imprisonment for six (6) years, or a
Y.E.

Jaime Ancla to be both private individuals erroneously

fine of P6,000.00: PROVIDED, HOWEVER, that offenses or
charged before and convicted by Respondent

13
 Law on Public Officers

Sandiganbayan which had no jurisdiction over them. The wherein the accused had to intervene under the
Sandiganbayans taking cognizance of this case is of no law in his capacity as Project
moment since (j)urisdiction cannot be conferred by x x x Manager/Consultant of said construction — said
erroneous belief of the court that it had jurisdiction.[44] As offense having been committed in relation to the
aptly and correctly stated by the petitioner in his performance of his official duties.
memorandum:  During arraignment, petitioner pleaded "not
guilty" to the charges against him.
From the foregoing discussion, it is evident that the
petitioner did not cease to be a private individual when he Sandiganbayan: Found Claro Preclaro y Jambalos GUILTY
agreed to act as depositary of the garnished dump beyond reasonable doubt of the violation of Section 3,
truck. Therefore, when the information charged him and paragraph (b) of Republic Act No. 3019.
Jaime Ancla before the Sandiganbayan for malversation of
public funds or property, the prosecution was in fact Issue: WON the Sandiganbayan erred in taking cognizance
charging two private individuals without any public officer of the case, instead of dismissing it for lack of jurisdiction,
being similarly charged as a co-conspirator. Consequently, the petitioner not being a public officer.
the Sandiganbayan had no jurisdiction over the
controversy and therefore all the proceedings taken below
Held: No
as well as the Decision rendered by Respondent
Sandiganbayan, are null and void for lack of jurisdiction.
Ratio: R.A. No. 3019 which, according to Sec. 2(b) thereof
"includes elective and appointive officials and employees,
permanent or temporary, whether in the classified or
G.R. No. 111091 August 21, 1995 unclassified or exemption service receiving compensation,
even nominal, from the government
ENGINEER CLARO J. PRECLARO, petitioner,
vs. The word "includes" used in defining a public officer in Sec.
SANDIGANBAYAN and PEOPLE OF THE 2(b) indicates that the definition is not restrictive. The
PHILIPPINES, respondents. terms "classified, unclassified or exemption service" were
the old categories of positions in the civil service which
KAPUNAN, J.: have been reclassified into Career Service and Non-Career
Service 11 by PD 807 providing for the organization of the
The terms “classified, unclassified or exempt service” were Civil Service Commission 12 and by the Administrative Code
the old categories of the positions in the Civil Service, which of 1987.
have been reclassified into Career and Non-Career service
by P.D. 807. Petitioner, as Project Manager of a From the foregoing classification, it is quite evident that
government building construction project, falls under the petitioner falls under the non-career service category
Non-Career service category, and is, thus, a public officer (formerly termed the unclassified or exemption service) of
under the law. Accordingly, the Sandiganbayan has the Civil Service and thus is a public officer as defined by
jurisdiction over him. Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No.
3019).
Facts:
The fact that petitioner is not required to record his
 Petitioner was charged before the working hours by means of a bundy clock or did not take an
Sandiganbayan with a violation of Sec. 3(b) of oath of office became unessential considerations in view of
R.A. No. 3019. the above-mentioned provision of law clearly including
petitioner within the definition of a public officer.
 Accused, a public officer, being then the Project
Manager of ITDI which is an agency of DOST
wherein the Jaime Sta. Maria Construction
undertook the construction of the building in
Bicutan, Taguig, Metro Manila, with a total cost
(P17,695,000.00) jointly funded by the Philippine
and Japanese Governments, and while the said
construction has not yet been finally completed,
accused either directly requested for another,
the sum of (P200,000.00), claimed as part of the
expected profit (P460,000.00) in connection with
Y.E.

the construction of that government building

14
 Law on Public Officers

Ratio: The contention deserves our scant attention. The

JOSE JINGGOY E. constitutionality of R.A. No. 7080, the Anti-Plunder Law,
ESTRADA, petitioner,vs. SANDIGANBAYAN (THIRD has been settled in the case of Estrada v. Sandiganbayan.
DIVISION), PEOPLE OF THE PHILIPPINES and OFFICE OF
THE OMBUDSMAN, respondents. Issue: (2) WON the Amended Information charged him
with only one act or one offense which cannot constitute
DECISION plunder

PUNO, J.: Held: No

Ratio: A careful examination of the Amended Information

Facts: will show that it is divided into three (3) parts: (1) the first
paragraph charges former President Joseph E. Estrada with
 5 criminal complaints were filed by the the crime of plunder together with petitioner Jose Jinggoy
Ombudsman against former President Estrada, Estrada, Charlie Atong Ang, Edward Serapio, Yolanda
his family, associates, friends and conspirators. Ricaforte and others; (2) the second paragraph spells out in
general terms how the accused conspired in committing
the crime of plunder; and (3) the following four sub-
 One of the Informations was for the crime of paragraphs (a) to (d) describe in detail the predicate acts
plunder under Republic Act No. 7080 and among constitutive of the crime of plunder pursuant to items (1)
the respondents was herein petitioner Jose to (6) of R.A. No. 7080, and state the names of the accused
Jinggoy Estrada, then mayor of San Juan, Metro who committed each act.
Manila.
Pertinent to the case at bar is the predicate act alleged in
 The Information was amended and the case was sub-paragraph (a) of the Amended Information. Contrary
assigned to respondent Third Division of the to petitioners posture, the allegation is that he received or
Sandiganbayan. The arraignment of the accused collected money from illegal gambling on several
was set on July 10, 2001 and no bail for instances. The phrase on several instances means the
petitioners provisional liberty was fixed. petitioner committed the predicate act in series. To insist
that the Amended Information charged the petitioner with
 Petitioner filed a Motion to Quash or Suspend
the commission of only one act or offense despite the
the Amended Information on the ground that
phrase several instances is to indulge in a twisted, nay,
R.A. No. 7080, is unconstitutional and that it
pretzel interpretation. Plainly, sub-paragraph (a) of the
charged more than one offense.
Amended Information charges petitioner with plunder
committed by a series of the same predicate act under
 Petitioner also filed a Motion to Resolve Mayor Section 1 (d) (2) of the law.
Jose Jinggoy Estradas Motion To Fix Bail On
Grounds That An Outgoing Mayor Loses Clout An
It is clear that Joseph Ejercito Estrada, in confabulation with
Incumbent Has And That On Its Face, the Facts
Jose Jinggoy Estrada, Atty. Edward Serapio and Yolanda
Charged In The Information Do Not Make Out A
Ricaforte, demanded and received, as bribe money, the
Non-Bailable Offense As To Him.
aggregate sum of P545 million from jueteng collections of
the operators thereof, channeled thru Gov. Luis Chavit
Sandiganbayan: issued a Resolution denying petitioners Singson, in exchange for protection from arrest or
Motion to Quash and Suspend and Very Urgent Omnibus interference by law enforcers.
Motion. Petitioners alternative prayer to post bail was set
for hearing after arraignment of all accused.
To be sure, it is too late in the day for the petitioner to
argue that the Ombudsman failed to establish any probable
 Petitioner moved for reconsideration of the cause against him for plunder. The respondent
Resolution. Respondent court denied the motion Sandiganbayan itself has found probable cause against the
and proceeded to arraign petitioner. Petitioner petitioner for which reason it issued a warrant of arrest
refused to make his plea prompting respondent against him. Petitioner then underwent arraignment and is
court to enter a plea of not guilty for him. Hence, now on trial. The time to assail the finding of probable
this petition. cause by the Ombudsman has long passed. The issue
cannot be resurrected in this petition.
Issue: (1) WON R.A. No. 7080 is unconstitutional on its face
and as applied to him and denies him the equal protection Issue: (3) WON the plunder law provide sufficient and
of the laws complete standards to guide the courts in dealing with
accused.
Held: No
Y.E.

15
 Law on Public Officers

Held: Yes subject ill-gotten wealth. In light of this lack of clarity,

petitioner cannot be penalized for the conspiracy entered
Ratio: Petitioner raises these hypothetical questions for he into by the other accused with the former President as
labors hard under the impression that: (1) he is charged related in the second paragraph of the Amended
with only one act or offense and (2) he has not conspired Information in relation to its sub-paragraphs (b) to (d). We
with the other accused named in sub-paragraphs (b) to (d) hold that petitioner can be held accountable only for the
of the Amended Information, ergo, the penalty imposable predicate acts he allegedly committed as related in sub-
on him ought to be different from reclusion perpetua to paragraph (a) of the Amended Information which were
death. R.A. No. 7080, he bewails, is cloudy on the allegedly done in conspiracy with the former President
imposable penalty on an accused similarly situated as he whose design was to amass ill-gotten wealth amounting to
is. Petitioner, however, overlooks that the second more than P4 billion.
paragraph of the Amended Information charges him to
have conspired with former President Estrada in We hasten to add, however, that the respondent
committing the crime of plunder. His alleged participation Ombudsman cannot be faulted for including the predicate
consists in the commission of the predicate acts specified acts alleged in sub-paragraphs (a) to (d) of the Amended
in sub-paragraph (a) of the Amended Information. If these Information in one, and not in four, separate
allegations are proven, the penalty of petitioner cannot be Informations. A study of the history of R.A. No. 7080 will
unclear. It will be no different from that of the former show that the law was crafted to avoid the mischief and
President for in conspiracy, the act of one is the act of the folly of filing multiple informations. The Anti-Plunder Law
other. The imposable penalty is provided in Section 2 of was enacted in the aftermath of the Marcos regime where
R.A. No. 7080, viz: charges of ill-gotten wealth were filed against former
President Marcos and his alleged cronies. Government
Section 2. Any public officer who, by himself or in prosecutors found no appropriate law to deal with the
connivance with the members of his family, relatives by multitude and magnitude of the acts allegedly committed
affinity or consanguinity, business associates, subordinates by the former President to acquire illegal wealth.[20] They
or other persons, amasses, accumulates or acquires ill- also found that under the then existing laws such as the
gotten wealth through a combination or series of overt or Anti-Graft and Corrupt Practices Act, the Revised Penal
criminal acts as described in Section 1(d) hereof in the Code and other special laws, the acts involved different
aggregate amount or total value of at least Fifty million transactions, different time and different
pesos (P50,000,000.00) shall be guilty of the crime of personalities. Every transaction constituted a separate
plunder and shall be punished by reclusion perpetua to crime and required a separate case and the over-all
death. Any person who participated with the said public conspiracy had to be broken down into several criminal
officer in the commission of an offense contributing to the and graft charges. The preparation of multiple
crime of plunder shall likewise be punished for such Informations was a legal nightmare but eventually, thirty-
offense. In the imposition of penalties, the degree of nine (39) separate and independent cases were filed
participation and the attendance of mitigating and against practically the same accused before the
extenuating circumstances, as provided by the Revised Sandiganbayan.[21] R.A. No. 7080 or the Anti-Plunder
Penal Code, shall be considered by the court. Law[22] was enacted precisely to address this procedural
problem.
Issue: (4) WON the Sandiganbayan erred in sustaining the There is no denying the fact that the plunder of an entire
charge against petitioner for alleged offenses and with nation resulting in material damage to the national
alleged conspirators, with which and with whom he is not economy is made up of a complex and manifold network of
even remotely connected contrary to the dictum that crimes. In the crime of plunder, therefore, different
criminal liability is personal, not vicarious results in the parties may be united by a common purpose. In the case
denial of substantive due process at bar, the different accused and their different criminal
acts have a commonality to help the former President
Held: No amass, accumulate or acquire ill-gotten wealth. Sub-
paragraphs (a) to (d) in the Amended Information alleged
the different participation of each accused in the
Ratio: From the foregoing allegations of the Amended
conspiracy. The gravamen of the conspiracy charge,
Information, it is clear that all the accused named in sub-
therefore, is not that each accused agreed to receive
paragraphs (a) to (d), thru their individual acts, conspired
protection money from illegal gambling, that each
with former President Estrada to enable the latter to
misappropriated a portion of the tobacco excise tax, that
amass, accumulate or acquire ill-gotten wealth in the
each accused ordered the GSIS and SSS to purchase shares
aggregate amount of P4,097,804,173.17. As the Amended
of Belle Corporation and receive commissions from such
Information is worded, however, it is not certain whether
sale, nor that each unjustly enriched himself from
the accused in sub-paragraphs (a) to (d) conspired with
Y.E.

commissions, gifts and kickbacks; rather, it is that each of

each other to enable the former President to amass the

16
 Law on Public Officers

them, by their individual acts, agreed to participate, burden of proof lies with the prosecution to show strong
directly or indirectly, in the amassing, accumulation and evidence of guilt.[60]
acquisition of ill-gotten wealth of and/or for former
President Estrada. This Court is not in a position to grant bail to the petitioner
as the matter requires evidentiary hearing that should be
From a reading of the Amended Information, the case at conducted by the Sandiganbayan. The hearings on which
bar appears similar to a wheel conspiracy. The hub is respondent court based its Resolution of December 20,
former President Estrada while the spokes are all the 2001involved the reception of medical evidence only and
accused, and the rim that encloses the spokes is the which evidence was given in September 2001, five months
common goal in the overall conspiracy, i.e., the amassing, ago. The records do not show that evidence on petitioners
accumulation and acquisition of ill-gotten wealth. guilt was presented before the lower court.

Upon proper motion of the petitioner, respondent

Sandiganbayan should conduct hearings to determine if
Issue: (5) WON petitioners plea for bail be granted the evidence of petitioners guilt is strong as to warrant the
Held: Sandiganbayan should conduct hearings to granting of bail to petitioner.
determine if the evidence of petitioners guilt is strong as to
warrant the granting of bail to petitioner.
Issue: (6) WON the charge against the petitioner should
Ratio: Basing its finding on the earlier testimony of Dr. dismissed on the ground that the allegation of conspiracy
Anastacio, the Sandiganbayan found that petitioner failed in the Amended Information is too general.
to submit sufficient evidence to convince the court that the
medical condition of the accused requires that he be Held: No
confined at home and for that purpose that he be allowed
to post bail.[58] Ratio: The requirements on sufficiency of allegations are
different when conspiracy is not charged as a crime in
The crime of plunder is punished by R.A. No. 7080, as itself but only as the mode of committing the crime as in
amended by Section 12 of R.A. No. 7659, with the penalty the case at bar. There is less necessity of reciting its
of reclusion perpetua to death. Under our Rules, offenses
particularities in the Information because conspiracy is
punishable by death, reclusion perpetua or life
not the gravamen of the offense charged. The conspiracy
imprisonment are non-bailable when the evidence of guilt
is strong, to wit: is significant only because it changes the criminal liability
of all the accused in the conspiracy and makes them
answerable as co-principals regardless of the degree of
Sec. 7. Capital offense or an offense punishable by reclusion
perpetua or life imprisonment, not bailable. No person their participation in the crime.[49] The liability of the
charged with a capital offense, or an offense punishable conspirators is collective and each participant will be
by reclusion perpetua or life imprisonment, shall be equally responsible for the acts of others,[50] for the act of
admitted to bail when evidence of guilt is strong, regardless one is the act of all.[51] In People v. Quitlong,[52] we ruled
of the stage of the criminal prosecution.[59] on how conspiracy as the mode of committing the
offense should be alleged in the Information, viz:
Section 7, Rule 114 of the Revised Rules of Criminal
Procedure is based on Section 13, Article III of the 1987 x x x. In embodying the essential elements of the crime
Constitution which reads: charged, the information must set forth the facts and
circumstances that have a bearing on the culpability and
Sec. 13. All persons, except those charged with offenses liability of the accused so that the accused can properly
punishable by reclusion perpetua when evidence of guilt is prepare for and undertake his defense. One such fact or
strong, shall, before conviction be bailable by sufficient circumstance in a complaint against two or more accused
sureties, or be released on recognizance as may be persons is that of conspiracy. Quite unlike the omission of
provided by law. The right to bail shall not be impaired even an ordinary recital of fact which, if not excepted from or
when the privilege of the writ of habeas corpus is objected to during trial, may be corrected or supplied by
suspended. Excessive bail shall not be required. competent proof, an allegation, however, of conspiracy,
or one that would impute criminal liability to an accused
for the act of another or others, is indispensable in order
The constitutional mandate makes the grant or denial of
to hold such person, regardless of the nature and extent
bail in capital offenses hinge on the issue of whether or not
of his own participation, equally guilty with the other or
the evidence of guilt of the accused is strong. This requires
others in the commission of the crime. Where conspiracy
that the trial court conduct bail hearings wherein both the
exists and can rightly be appreciated, the individual acts
prosecution and the defense are afforded sufficient
done to perpetrate the felony becomes of secondary
Y.E.

opportunity to present their respective evidence. The

importance, the act of one being imputable to all the

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 Law on Public Officers

others (People v. Ilano, 313 SCRA 442). Verily, an accused 1. A person no matter how qualified cannot be
must know from the information whether he faces a appointed to an office which is not vacant.
criminal responsibility not only for his acts but also for the 2. One who is legally dismissed from office is,
acts of his co-accused as well. by fiction of law, deemed not to have
vacated his office.
In the case at bar, the second paragraph of the Amended
Information alleged in general terms how the accused
Permanent Vacancy Occurs when an elective local
committed the crime of plunder. It used the words in
official: [Sec. 44, LGC]
connivance/conspiracy with his co-accused. Following the
ruling in Quitlong, these words are sufficient to allege the 1. fills a higher vacant office
conspiracy of the accused with the former President in 2. refuses to assume office
committing the crime of plunder. 3. fails to qualify
4. dies
5. is removed from office
6. voluntarily resigns
Modes of Creation of 7. otherwise permanently incapacitated from
discharging the functions of his office
Public Offices The position of Local Chief Executive becomes
1. By the Constitution (e.g., Office of the vacant
President) Vacancy Successor
2. By Statute (e.g., Office of the Insurance In case of permanent vacancy
Commissioner) Governor or Mayor Vice Governor; Vice Mayor
3. By Authority of Law (e.g., the Davide Governor, Vice-Governor, Highest-ranking Sangguinang
Commission) Mayor, Vice-Mayor member
Punong Barangay Highest-ranking Sangguniang
Barangay Member
Modes of Acquiring Title In case of a tie between highest
ranking Sangguninan Member,
then lots shall be drawn
to Public Office In case of permanent inability
1. Election - An officer occupies the office by Highest-ranking Sangguniang Second highest-ranking
Member (as the successor of Sangguniang Member (subsequent
virtue of the mandate of the electorate.
the Governor, Vice-Governor, vacancies filled according to their
They are elected for a definite term and Mayor, Vice-Mayor) rank)
may be removed therefrom only by
stringent conditions. Sanggunian becomes vacant
2. Appointment – Selection, by the authority Position Appointing Not member Member
vested with the power, of an individual who authority of a political of a
is to exercise the functions of a given office. party political
3. At times by contract party
4. Succession or other modes of allowed by Sangguniang President Recommendation Nomination
law. Panlalawigan through the of the and
Executive Sangguniang Certification
Secretary Panlalawigan of the
Succession of Elective Sangguniang
Panlungsod
Recommendation
of the
political
party of the
(of highly Sangguniang member who
Officials urbanized Panlungsod caused the
vacancy
and
Vacancy independent
component
issued by the
highest
It occurs when a position is empty and without a cities) official of the
legally qualified incumbent appointed or elected to it political
party
with a lawful right tom exercise its powers and
Sangguniang Governor Recommendation Nomination
perform its duties. Panlungsod of Sangguniang and
(of Panglungsod Certification
Y.E.

Two Principles on Vacancy of the

18
 Law on Public Officers

component political the latter acts as Governor by virtue of such

cities) party of the temporary vacancy. This event constitutes an
member who
caused the inability on the part of the presiding officer (Vice
vacancy Gov) to preside during the SP sessions; which thus
issued by the calls for the operation of the remedy set in ART 49
highest (b) of the LGC on the election of a temporary
official of the
political presiding officer. [Gamboa v. Aguirre (1999)]
party
Sangguniang Recommendation
Bayan of Sangguniang
Bayan
Sangguniang City or Recommendation
The President
Barangay Municipal of Sangguniang Death or Vice-President-
Mayor Barangay permanent elect shall
disability become
President
fails to Vice-President-
Temporary Vacancy Occurs when the local chief qualify elect shall act as
executive is due to: President until
the President-
1. leave of absence elect shall have
2. traveling abroad qualified
3. suspension from office No President Senate President In the event of
and Vice- or, incase of his inability of the
President inability, Speaker SP and
Re extent of duty of temporary successor Vacancy at chosen nor of the House of Speaker,
General rule: The successor shall automatically the shall have Representatives, Congress
exercise the powers and perform the duties and beginning qualified, or shall act as shall, by law,
functions of the local chief executive. of the both shall President until a provide for
have died or President or a the manner in
term become Vice-President which one
Exception: The power to appoint/suspend/dismiss permanently shall have been who is to act
employees can be exercised only if the period of disabled chosen and as President
incapacity exceeds 30 working days; or if the qualified. shall be
selected until
successor is appointed in writing, if the authorization a President or
specifies such powers to the successor. Vice-President
shall have
If the local chief executive is traveling within the qualified.
Vacancy
country but outside his territorial jurisdiction for a
President Vice-President-
period not exceeding 3 consecutive days, he may shall not have elect shall act as
designate in writing the officer-in-charge. been chosen President until a
President shall
have been
Vacancy Successor chosen and
Governor Vice-Governor qualified
Mayor VIice-Mayor Death, Vice-President
Punong Barangay Highest-ranking Sanggunian permanent shall become
Member disability, President
Local Chief Executive is 1) The person designated in removal from
travelling within the country writing by the local chief office, or
but is outside the territorial executive 2) Vice-Governor, resignation of
jurisdiction for a period not ViceMayor, or highest- the President
exceeding three consecutive ranking Sanggunian Member Death, Senate President Congress, by
days. on the 4th day of absence, if Vacancy permanent or, in case of his law, shall
local chief executive fails or during the disability, inability, the provide for
refuses to designate a
successor;
term removal from Speaker of the the manner in
office, or House of which one is
resignation of Representatives, to act as
The creation of a temporary vacancy in the office of President shall act as President in
the Governor creates a corresponding temporary And Vice- President until a the event of
Y.E.

President President or inability of the

vacancy in the office of the Vice Governor whenever VicePresident

19
 Law on Public Officers

shall be elected SP and

When
and qualified.
Such powers and
Speaker CLASSIFICATION OF
Temporary
disability President
transmits to
duties shall be
discharged by
PUBLIC OFFICES AND
the Senate the Vice-
President and
the Speaker
President as
Acting President,
PUBLIC OFFICERS
Creation Constitutional
of the House until the
Statutory
his written President
Public body served National
declaration transmits to
that he is them a written Local
unable to declaration to Department of Executive
discharge the the contrary Government to which Judicial
powers and Legislative
their functions pertain
duties of his
Nature of functions Civil
office
When a The Vice- Military
Majority of President shall Exercise of judgement Discretionary
all the immediately Ministerial
members of assume the
Legality of title to De Jure
the Cabinet powers and
transmit to duties of the office De Facto
the Senate office as Acting Compensation Lucrative
President and President until
Honorary
the Speaker the President
their written transmits to the
declaration Senate President
that the and Speaker his
President is
unable to
written
declaration that
De Facto Doctrine
discharge the no inability What: That a person who is admitted and sworn into
powers and exists. office by the proper authority is deemed to be
duties of his rightfully in such office until:
office
a. he is ousted by judicial declaration
If after the Congress Congress shall
President determines by a convene, if in a proper proceeding; or
transmits his 2/3 vote of both not in session, b. his admission thereto is declared
declaration houses, voting within 48 void.
of his ability separately, that hours. And if Ratio: The acts of the de facto public officer, insofar
to discharge the President is within 10 days
his office, unable to from receipt as they affect the public, are valid, binding and with
and a discharge the of the last full legal effect. The doctrine is intended not for the
majority of powers and written protection of the public officer, but for the
members of duties of his declaration or, protection of the public and individuals who get
the Cabinet office, the Vice- if not in
transmit President shall session, involved in the official acts of persons discharging
within 5 days act as President; within 12 days the duties of a public office.
to the Senate otherwise, the after it is
President and President shall required to De Facto Officer
Speaker their continue assemble.
written exercising the Who: One who has the reputation of being the
declaration powers and officer that he assumes to be, and yet is not a good
that the duties of his officer in point of law [Torres v. Ribo, 81 Phil 44]. He
President is office must have acted as an officer for such length of
unable to
discharge the time, under color of title and under such
powers and circumstances of reputation or acquiescence by the
duties of his public and public authorities, as to afford a
office, presumption of election or appointment, and induce
Congress
shall decide people, without inquiry, and relying on the
the issue. supposition that he is the officer he assumes to be,
to submit to or invoke his action.
Y.E.

20
 Law on Public Officers

unconstitutional law before

A person is a de facto declaration of
unconstitutionality
officer when:
1. There is no known appointment or election, De Jure Officer
but people are induced by circumstances of
Who: Is one who has the lawful right to the office in
reputation or acquiescence to suppose that
he is the officer he assumes to be. all respects, but who has either been ousted from it,
Consequently, people do not to inquire into or who has never actually taken possession of it.
his authority, and they submit to him or
invoke his action;
2. He possessed public office under color of a
known and valid appointment or election, Usurper
but he failed to conform to some precedent Who: One who take possession of the office and
requirement or condition (e.g., taking an undertakes to act officially without any color of right
oath or giving a bond);
or authority, either actual apparent.
3. He possessed public office under color of a
known election or appointment, but such is
VOID because: An intruder / usurper may be presumed a de facto
(a) He’s ineligible; officer with the passage of time, when the public
(b) The electing or appointing body is
presumes in their minds IN GOOD FAITH that the
not empowered to do such;
(c) His exercise of his function was intruder is rightfully acting as a public officer.
defective or irregular;
(d) Important: The public does NOT
KNOW of such ineligibility, want of power,
or defect being.
DE JURE vs. DE FACTO
4. He possessed public office under color of an De Jure De Facto
election or an appointment by or pursuant As to basis of authority
to a public, unconstitutional law, before the He has the lawful right / title He possesses office and
same is adjudged to be such. to the office
performs its duties
under color of right,
ELEMENTS OF A DE but he is not technically
qualified to act in all
FACTO OFFICE points of law
As to how ousted
1. A validly existing public office;
Cannot be ousted In a direct proceeding (quo
2. Actual physical possession of the warranto);
office in good faith; As to validity of acts
3. Color of title to the office: Valid, subject to exceptions Valid as to the public until his
a) Reputation or acquiescence; (e.g., acting beyond his scope title to the office is adjudged
b) Known and valid appointment of authority, etc.) insufficient.
or election but the officer As to payment of compensation
Rightfully entitled to Conditionally entitled to
failed to conform to a legal
compensation; receive compensation: only
requirement The principle "No work, no when no de jure officer is
c) Known appointment or pay" is inapplicable to him. declared;
election but void because of He is paid only for actual
services rendered
ineligibility of the officer, or
want of authority of the
appointing or electing
authority, or because of an
DE FACTO vs. Usurper
irregularity in his appointment De Facto Usurper
or election, such ineligibility, As to mode of acquiring possession of office
4 circumstances mentioned He possesses office and
want of authority or above performs official acts without
irregularity being unknown to actual or apparent authority.
the public As to color of authority
d) Known appointment or Color of right or title to office None. Neither lawful title nor
Y.E.

election pursuant to an color of right to office.

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 Law on Public Officers

As to validity of acts G.R. No. L-14569 November 23, 1960

Valid as to the public until his Absolutely void; His acts can
title to the office is adjudged be impeached at any time in BENITO CODILLA, ET AL., petitioners,
insufficient any proceeding (unless and
vs.
until he continues to act for a
long time, creating a JOSE L. MARTINEZ, ETC., ET AL., respondents.
presumption of his right to
act) BAUTISTA ANGELO, J.:
As to payment of compensation
Entitled to receive Not entitled Facts:
compensation only when no
de jure officer is declared and
only for actual services  Hermenegildo C. Baloyo, mayor of Tagum,
rendered. Davao, left for Negros Occidental to attend to a
sick brother.
 Thereupon, he designated the vice-mayor to act
LEGAL EFFECT OF ACTS OF in his place effective January 25, 1956 until
further advice on his part.
DE FACTO OFFICERS  The vice-mayor in turn fell sick of certain lung
trouble in view of which he designated ranking
With respect the officers themselves: A party suing
councilor Macario Bermudez as acting mayor
or defending in his own right as a public officer must effective January 25, 1956 until notice to the
show that he is an officer de jure. It is not sufficient contrary.
that he be merely a de facto officer.  Councilor Bermudez was not also in good health
so he designated the third ranking councilor Jose
With respect to the public and third persons: The L. Martinez to act as mayor effective on the same
acts of a de facto officer are valid as to third persons date.
and the public until his title to office is adjudged  Martinez accepted the designation and assumed
insufficient. the office on January 25, 1956, his first official act
Rationale: The doctrine is intended not for being to separate from the service the
petitioners as policemen of the municipality.
the protection of the public officer, but for
 Petitioners immediately filed their protest
the protection of the public and individuals invoking the right to continue in office under the
who get involved in the official acts of provisions of Republic Act 557, but far from
persons discharging the duties of a public heeding their protest, Acting Mayor Martinez
office. appointed Eduardo M. Duaso municipal
policemen in lieu of Benito Codilla who
De Facto Officer’s Official Acts are not subject to immediately qualified by taking his oath of office.
collateral attack: A de facto officer’s and his acts’ Martinez also appointed Juanito Redoble vice
validity cannot be collaterally questioned (in Perfecto Melendres.
 The appoinments were approved by the
proceedings where he is not a party, or were not
President of the Philippines and the
instituted to determine the very question).
Commissioner of Civil Service.
 Policarpio Lagura was also appointed vice
Leonardo Castor, his appointment having been
issued by incumbent Mayor Baloyo who in the
meantime returned to office. He also
immediately qualified by taking the oath of
office.

Petitioners: filed a petition for mandamus before the

Court of First Instance of Davao against Acting Mayor
Martinez and incumbent Mayor Baloyo alleging that their
separation from the service of municipal policemen was
illegal because being civil service employees their
employment cannot be terminated except for cause, and
so they prayed that respondents be ordered to restore
Y.E.

them to their former positions with payment of their back

salaries. They also prayed for their moral and exemplary

22
 Law on Public Officers

damages to the tune of P7,000.00 and for attorney's fees Ratio: We cannot escape the fact that they were merely
in the amount of P1,000.00. They included as co- given temporary appointments for the reason that they do
respondents the policemen who were appointed in their not have civil service eligibility thus making their status as
places. employee wholly dependent upon the grace of the ruling
power. And this we say because, as we ruled in a series of
Respondents: set up the defense that the appointments of cases, "A temporary appointment is similar to one made in
petitioners having been made under Section 682 of the acting capacity, the essence of which lies in its temporary
Revised Administrative Code in a temporary capacity, character and its terminability at the pleasure of the
because they are not civil service eligibles, the same were appointment power." We also postulated that "The
valid only for three months and so their continuance in replacement of non-eligibles is lawful under and pursuant
office after the expiration of that period was illegal; that to Section 682 of the Revised Administrative Code."
even assuming that Acting Mayor Martinez had no
authority to terminate their employment, his action was Petitioners cannot, therefore invoke in their favor the
validated when incumbent Mayor Baloyo endorsed and provisions of Republic Act No. 557 because this Act only
ratified the same by his subsequent official actuation; and guarantees the tenure of office of police who are eligibles.
that, not being civil service eligibles, petitioners may be Non-eligibles do not come under its protection. Hence,
separated from them service under the provisions of much as we sympathize with the petitioners, our hand is
Republic Act No. 557 upon the expiration of the term of stayed by the inexorable provisions of the law.
three months given to them in their appointments.

Issue: (1) WON the designation of Martinez as acting mayor

who was only then the third ranking councilor of the
municipality was not made in accordance with the
Eligibility & Qualifications
provisions of Section 2195 of the Revised Administrative
Eligibility
Code and Section 21 (a) of the Revised Election Code
What: The state or quality of being legally fitted or
qualified to be chosen.
Held: Court did not consider the designation of Martinez as
acting mayor entirely void, or one that would make him a
usurper, but at most a de facto officer whose acts maybe Eligible
given validity in the eye of the law. Who: A person who obtains a passing grade in a civil
service examination and whose name is entered in
Ratio: Although his designation was irregular, still he was the register of eligibles from which appointments
acting under a color of authority, as distinguished from a must be made.
usurper who is "one who has neither title nor color of right
of an office." . . . The acts of Jose L. Martinez are therefore Qualification, as understood in two senses:
official acts of a de facto officer. If they are made within the
scope of the authority vested by the law in the office of the 1. As an ENDOWMENT – refers to the
mayor of Tagum, such acts of a de facto office are here qualities or attributes which make an
present.
individual eligible for public office. It must
be possessed at the time of appointment or
Another factor that may be invoked in favor of the validity election and continuously for as long as the
of the official actuation of Acting Mayor Martinez is the fact
official relationship continues
that all his official acts done under his designation were
subsequently endorsed and ratified by the incumbent 2. As an ACT – refers to the act of entering
mayor when he returned to office. This ratification served into the performance of the functions of
to cure any legal infirmity the acts of Acting Mayor the office.
Martinez may have suffered because of his irregular
designation.
Power of Congress to
Issue: (2) WON termination of employment of petitioners
as municipal policemen was made contrary to the law Prescribe Qualifications
which safeguards the rights of an employee to his office in
the government service. 1. When the qualifications are prescribed by
the Constitution - They are generally
Held: No exclusive, except where the Constitution
Y.E.

23
 Law on Public Officers

itself provides otherwise as when only

minimum or no qualifications prescribed G.R. No. L-6898 April 30, 1954
2. When office is created by a Statute –
Congress is generally empowered to LUIS MANALANG, petitioner,
prescribe the qualifications for holding vs.
public office. Provided; AURELIO QUITORIANO, EMILIANO MORABE, ZOSIMO G.
a) It does not impose conditions LINATO, and MOHAMAD DE VENANCIO,respondents.
of eligibility inconsistent with
Constitutional provisions. CONCEPCION, J.:
b) Qualifications must have a
rational basis. The At any rate, petitioner's record as a public servant — no
qualification must be germane matter how impressive it may be as an argument in favor
of his consideration for appointment either as
to the position
Commissioner or as Deputy Commissioner of the Service —
c) Qualifications must not be so is a matter which should be addressed to the appointing
detailed as to practically power in the exercise of its sound judgment and discretion,
amount to making a legislative and does not suffice to grant the Court, whose duty is
appointment merely to apply the law, the power to vest in him a legal
title which he does not have.
Limitation in Prescribing Qualifications:
1. Congress may not reduce or increase the Petitioner Luis Manalang contests, by quo
qualifications prescribed by the warranto proceedings, the title of the incumbent
Constitution. Commissioner of the National Employment Service, and
2. May only prescribe general qualifications. seeks to take possession of said office as the person
3. The qualification must be germane to the allegedly entitled thereto.
position.
Facts:

Duration of Qualification  The original respondent was Aurelio Quitoriano,

-Qualifications are continuing requirements which who, at the time of the filing of the petition held
means that they must be possessed not only at the said office by virtue of a designation made, in his
favor, as Acting Commissioner of the National
date of selection or assumption but for the full
Employment Service, by the Office of the
duration of the incumbency. President of the Philippines. Petitioner included,
as respondents, Emiliano Morabe, who was
-The prescribed qualifications must be possessed at designated Acting commissioner of National
the earliest on the date indicated by the Constitution Employment Service, and Zosimo G. Linato, the
or the law. If there is no similar indication, it suffices Collecting, Disbursing and Property Officer of
if the qualifications are possessed at the time of said National Employment Service in order to
assumption of office. restrain him from paying, to respondent Morabe,
the salary of the Commissioner of said Service.
Still later, Mohamad de Venancio, who was
-The reckoning point in determining the
designated Acting Commissioner of said Service,
qualifications of the appointee is the date of and assumed said office was included as
issuance of the appointment not the date of its respondent.
approval by the CSC.  Petitioner, Luis Manalang, was Director of the
Placement Bureau, an office created by Executive
-No estoppel in ineligibility. Knowledge of ineligibility Order No. 392.
of a candidate and failure to question such  Republic Act No. 761, entitled "An Act to Provide
ineligibility before or during the election is not a bar for the Organization of a National Employment
to questioning such eligibility after such ineligible Service,"
candidate has won and been proclaimed. Estoppel  The then Secretary of Labor, Jose Figueras,
recommended the appointment of petitioner
will not apply in such a case. [Castaneda v. Yap
Luis Manalang as Commissioner of the Service.
(1952)] On June 29, 1953, respondent Aurelio
Y.E.

Quitoriano, then Acting Secretary of Labor, made

24
 Law on Public Officers

a similar recommendation in favor of Manalang, Incidentally, this transfer connotes that the National
upon the ground that "he is best qualified" and Employment Service is different and distinct from the
"loyal to service and administration." Said Acting Placement Bureau, for a thing may be transferred only
Secretary of Labor even informed Manalang that from one place to another, not to the same place. Had
he would probably be appointed to the office in Congress intended the National Employment Service to be
question. However, on July 1, 1953, Quitoriano a mere amplification or enlargement of the Placement
was the one designated, and sworn in, as Acting Bureau, Republic Act No. 761 would have directed
Commissioner of the Service. Such designation of the retention of the "qualified personnel" of the latter, not
Quitoriano — like the subsequent designation, their transfer to the former. Indeed, the Service includes,
first, of Emiliano Morabe, and the, of Mohamad not only the functions pertaining to the former Placement
de Venancio — is now assailed by Manalang as Bureau, but also, those of the former Employment Office in
"illegal" and equivalent to removal of the the Commission of Social Welfare, apart from other
petitioner from office without cause. powers, not pertaining to either office, enumerated in
section 4 of Republic Act No. 761.
Issue: (1) WON the designation of Quitoriano illegal and
equivalent to removal of Manalang from office without just Issue: (3) WON National Employment Service
cause Commissioner is not new and is occupied by the petitioner"
and that the petitioner is entitled to said office
Held: No "automatically by operation of law,"

Ratio: This pretense cannot be sustained. To begin with, Held: No

petitioner has never been Commissioner of the National
Employment Service and, hence, he could not have been, Ratio: This contention is inconsistent with the very
and has not been removed therefrom. Secondly, to remove allegations of petitioner's pleadings. Thus, in paragraph 11
an officer is to oust him from office before the expiration of his petition, it is alleged "that increasing the item and
of his term. As removal implies that the office exists after elaborating the title of a civil servant,
the ouster. Such is not the case of petitioner herein, for although necessitating a new appointment, does not mean
Republic Act No. 761 expressly abolished the Placement the ousting of the incumbent or declaring the item vacant."
Bureau, and, by implication, the office of director thereof, In paragraph 12 of the same pleading, petitioner averred
which, obviously, cannot exist without said Bureau. By the that "on or about June 25, 1953, two days before the
abolition of the latter and of said office, the right thereto departure of President Quirino to Baltimore, petitioner
of its incumbent, petitioner herein, was necessarily wrote a confidential memorandum to His Excellency
extinguished thereby. Accordingly, the constitutional reminding him of the necessity of appointing anew the
mandate to the effect that "no officer or employee in the petitioner as head of the National Employment Service."
civil service shall be removed or suspended except for
cause as provided by law" (Art. XII, Sec. 4, Phil. Const.), is Having thus admitted — and correctly — that he needed
not in point, for there has been neither a removal nor a a new appointment as Commissioner of the National
suspension of petitioner Manalang, but an abolition of his Employment Service, it follows that petitioner does not
former office of Director of the Placement Bureau, which, hold — or, in his own words, occupy — the latter's item,
admittedly, is within the power of Congress to undertake inasmuch as the right thereto may be acquired only by
by legislation. appointment. What is more, Republic Act No. 761 requires
specifically that said appointment be made by the
Issue: (2) WON Republic Act No. 761 abolished the President of the Philippines 'with the consent of the
Placement Bureau is one of legislative intent Commission on Appointments." How could the President
and the Commission on Appointments perform these acts
Held: Yes if the Director of the Placement Bureau automatically
became Commissioner of the National Employment
Service?
Ratio: Par. (2) of section 1 of said R.A. 761 provides: Upon
the organization of the Service, the existing Placement
Bureau and the existing Employment Office in the
Commission of Social Welfare shall be abolished, and all
the files, records, supplies, equipment, qualified personnel
and unexpended balances of appropriations of said Bureau
and Commission pertaining to said bureau or office shall
thereupon be transferred to the Service.
Y.E.

25
 Law on Public Officers

G.R. No. L-16263 July 26, 1960 Respondent: alleged in his answer that three(3) of
petitioners herein are, pursuant to section 14 of Republic
DR. JOSE CUYEGKENG, ET AL., petitioners, Act No. 2382, not qualified for appointment to the Board
vs. for Medical Examiners, they being members of the
DR. PEDRO M. CRUZ, as member of Board of Medical professional staff of certain private medical colleges.
Examiners, respondent.
That there is no cause of action against him none of the
CONCEPCION, J.: petitioners and intervenors claim to be entitled to the
office in question.The aforementioned list, submitted by
the executive Council of the Philippine Medical Association,
Facts:
is merely recommendatory in nature and, as such, not
binding upon the President Insofar as Section 13 of
 The petitioners are doctors Jose Cuyegkeng, Republic Act No. 2382 may be construed as limiting the
Pedro N. Mayuga, Benjamin Roa, Timoteo Alday, choice of the President, in a mandatory manner, in the
Dominador Jacinto, Alejandro Gaerlan and Rosita selection of members of the Board of Medical Examiners,
Rivera-Ramirez. to the list aforementioned, said legal provision is
 Their alleged cause of action is predicated upon unconstitutional and void; Inclusion in the list above
the fact that their names appear in a list of referred to is not one of the qualification prescribed in
qualified physicians, approved and submitted, to section 14 of Republic Act No. 2382 for appointment to said
the President of the Philippines, by the Executive Board.
Council of the Philippine Medical Association of
the Philippines pursuant to the provisions of Issue: WON respondent has a valid title to his office
section 13 of Republic Act No. 2382, for
appointment as members of the Board of
Medical Examiners, and that respondent Dr. Held: Yes
Pedro M. Cruz, whom the President appointed to
said board was not named in said list. Ratio:
 Officers and members of said Council of the
Philippine Medical Association, were allowed to One group of members of this Court is of the opinion that
intervene and then filed a petition in the provisions of this section are mandatory in character;
intervention, joining the petitioners in praying that, although Congress may, by law, prescribe the
for the relief sought by them. qualifications for appointment to a public office created by
 The Council, acting in conformity with section 13 statute, such as membership of the Board of Medical
of Republic Act No. 2382, otherwise known as Examiners.
The Medical Act of 1959, approved and
submitted to the President a revised list of Inclusion in the list submitted by the Executive Council of
qualified physicians, including petitioners herein, the Philippine Medical Association, in compliance with
for appointment to the aforementioned Board. section 13 of the same Act, is not one of the qualifications
 By a letter of the Assistant Executive Secretary enumerated in said section 14; that by confining the
dated November 18, 1959, said Council was selection of the six (6) members of the Board of Medical
advised that the President had decided to Examiners to the twelve (12) person included in said list,
appoint, as member of the said Board, Dr. Cesar the framers of the law have evinced the intent, not merely
Filoteo, Dr. Oscar Chacon, Dr. Edgardo Caparas, to prescribe the qualifications for eligibility to said Board,
Dr. Jose Cocjin, Dr. Antonio Gutyingco and Dr. but, also, to limit and curtail, and, hence, to reduce and
Pedro M. Cruz. impair the power of appointment vested in the President
 The first five (5) persons mentioned in this letter by the Constitution, which authority connotes necessarily
were included in the list aforementioned, but the a reasonable measure of freedom, latitude or discretion in
name of the last, namely, that of respondent the exercise of the power to choose the appointees (67 C.
herein, did not appear in said list. Petitioner J. S. 157-158); and that, consequently, the pertinent
herein, as well as the intervenors, maintain that, portion of section 13 of Republic Act No. 2382 is
pursuant to section 13 of Republic Act No. 2382, unconstitutional and the appointment of respondent
the President cannot appoint to the Board of herein lawful and valid.
Medical Examiners any person not named in the
list submitted by the Executive Council of the
Another group adheres to the view that said portion of
Philippine Medical Association, and that,
section 13 of Republic Act No. 2382 is merely directory in
accordingly, the aforementioned appointment of
nature. Indeed, in their respective pleadings, the
respondent is null and void.
Y.E.

petitioners, as well as the intervenors, refer to the persons

26
 Law on Public Officers

named in the list aforementioned as "recommendees". G.R. No. 104732 June 22, 1993
They are identically referred to in the communication
transmitting said list to the President of the Philippines, ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T.
which communication is, in turn, described in said PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and
pleadings as a letter of "recommendation". By their very MANUEL P. REYES, petitioner,
acts therefore, the intervenors have clearly expressed the vs.
belief, which was shared by the President, that the function HON. FRANKLIN M. DRILON, Executive Secretary, and
of the former under said section 13 is purely RICHARD J. GORDON, respondents.
recommendatory. Needless to say, a "recommendation",
as such, implies merely an advice, exhortation or
BELLOSILLO, J.:
indorsement, which is essentially persuasive in character,
not binding upon the party to whom it is made. The
members of the Court constituting this group feel, Relative to public offices created by statute,
therefore, that, although section 13 of Republic Act No. Congress has virtually plenary powers to prescribe
2382 is constitutional, respondent herein has a valid title to qualifications, provided that (i) the qualifications are
his office as member of the Board of Medical Examiners. germane to the objective/s for which the public
office was created; and (ii) the qualifications are not
The third group, which is bigger than any of the two (2) too specific as to fit a particular, identifiable person,
groups already adverted to, deems it unnecessary, either because that would deprive the appointing
to inquire into the constitutionality of said section 13, or to
authority of discretion in the selection of the
determine whether the same is mandatory or directory.
appointee
The members of said group opine that it is not absolutely
Facts
necessary that the person reappointed under this provision
be included in the list mentioned in section 13 of Republic
Act No. 2382, for, in case of conflict between two (2)  Paragraph (d) reads: Chairman administrator —
provisions of the same statute, the last in order of position The President shall appoint a professional
is frequently held to prevail (82 C. J. S. 718), unless it clearly manager as administrator of the Subic Authority
appears that the intent of congress is otherwise, and no with a compensation to be determined by the
such intent is patent in the case at bar. Furthermore, the Board subject to the approval of the Secretary of
purpose of section 13, in requiring the favorable Budget, who shall be the ex officio chairman of
indorsement of the Philippine Medical Association, the Board and who shall serve as the chief
evidently, to reasonably assure that the members of the executive officer of the Subic
Board of Medical Examiners are among the best in their Authority: Provided, however, That for the first
profession, and one who has already held, or who still holds year of its operations from the effectivity of this
a position in said Board, is presumed to belong to such Act, the mayor of the City of Olongapo shall be
class, in the absence of proof to the contrary. There is not appointed as the chairman and chief executive
even the slightest suggestion that respondent does into officer of the Subic Authority
live up to the standard required for membership in said  Petitioners, who claim to be taxpayers,
Board. employees of the U.S. Facility at the Subic,
Zambales, and officers and members of the
In conclusion, although none of the groups already Filipino Civilian Employees Association in U.S.
adverted to have sufficient votes to constitute the requisite Facilities in the Philippines, maintain that the
majority, the members of this Court are unanimous in the proviso in par. (d) of Sec. 13 infringes on the
opinion that respondent herein has a good and valid title following constitutional and statutory provisions:
to his office. (a) Sec. 7, first par., Art. IX-B, of the Constitution,
which states that "[n]o elective official shall be
eligible for appointment or designation in any
capacity to any public officer or position during
his tenure," 3 because the City Mayor of
Olongapo City is an elective official and the
subject posts are public offices; (b) Sec. 16, Art.
VII, of the Constitution, which provides that
"[t]he President shall . . . . 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
Y.E.

appoint", 4 since it was Congress through the

27
 Law on Public Officers

questioned proviso and not the President who may be appointed Member of the Cabinet; 10 and, a
appointed the Mayor to the subject posts; member of Congress who may be designated ex
officio member of the Judicial and Bar Council.
Issue: (1) WON the proviso in Sec. 13, par. (d), of R.A. 7227
which states, "Provided, however,That for the first year of The distinction being clear, the exemption allowed to
its operations from the effectivity of this Act, the mayor of appointive officials in the second paragraph cannot be
the City of Olongapo shall be appointed as the chairman extended to elective officials who are governed by the first
and chief executive officer of the Subic Authority," violates paragraph.
the constitutional proscription against appointment or
designation of elective officials to other government posts Issue (2) WON SBMA posts are merely ex officio to the
position of Mayor of Olongapo City
Held: Yes
Held: No
Ratio: The Sec. 7 of Art. IX-B of the Constitution expresses
the policy against the concentration of several public Ratio:Congress did not contemplate making the subject
positions in one person, so that a public officer or SBMA posts as ex officio or automatically attached to the
employee may serve full-time with dedication and thus be Office of the Mayor of Olongapo City without need of
efficient in the delivery of public services. It is an appointment. The phrase "shall be appointed"
affirmation that a public office is a full-time job. Hence, a unquestionably shows the intent to make the SBMA posts
public officer or employee, like the head of an executive appointive and not merely adjunct to the post of Mayor of
department should be allowed to attend to his duties and Olongapo City. Had it been the legislative intent to make
responsibilities without the distraction of other the subject positions ex officio, Congress would have, at
governmental duties or employment. He should be least, avoided the word "appointed" and, instead, "ex
precluded from dissipating his efforts, attention and officio" would have been used.
energy among too many positions of responsibility, which
may result in haphazardness and inefficiency.
Issue: (3) WON the Proviso limits the appointing power of
the President
The basic idea really is to prevent a situation where a local
elective official will work for his appointment in an
Held: Yes
executive position in government, and thus neglect his
constituents.
Ratio: Indeed, the power of choice is the heart of the
power to appoint. Appointment involves an exercise of
In the case before us, the subject proviso directs the
discretion of whom to appoint; it is not a ministerial act of
President to appoint an elective official, i.e., the Mayor of
issuing appointment papers to the appointee. In other
Olongapo City, to other government posts (as Chairman of
words, the choice of the appointee is a fundamental
the Board and Chief Executive Officer of SBMA). Since this
component of the appointing power.
is precisely what the constitutional proscription seeks to
prevent, it needs no stretching of the imagination to
conclude that the proviso contravenes Sec. 7, first par., Art. Hence, when Congress clothes the President with the
IX-B, of the Constitution. Here, the fact that the expertise power to appoint an officer, it (Congress) cannot at the
of an elective official may be most beneficial to the higher same time limit the choice of the President to only one
interest of the body politic is of no moment. candidate. Once the power of appointment is conferred on
the President, such conferment necessarily carries the
discretion of whom to appoint. Even on the pretext of
In any case, the view that an elective official may be
prescribing the qualifications of the officer, Congress may
appointed to another post if allowed by law or by the
not abuse such power as to divest the appointing authority,
primary functions of his office, ignores the clear-cut
directly or indirectly, of his discretion to pick his own
difference in the wording of the two (2) paragraphs of Sec.
choice. Consequently, when the qualifications prescribed
7, Art.
by Congress can only be met by one individual, such
IX-B, of the Constitution. While the second paragraph
enactment effectively eliminates the discretion of the
authorizes holding of multiple offices by an appointive
appointing power to choose and constitutes an irregular
official when allowed by law or by the primary functions of
restriction on the power of appointment.
his position, the first paragraph appears to be more
stringent by not providing any exception to the rule against
appointment or designation of an elective official to the In the case at bar, while Congress willed that the subject
government post, except as are particularly recognized in posts be filled with a presidential appointee for the first
the Constitution itself, e.g., the President as head of the year of its operations from the effectivity of R.A. 7227,
Y.E.

economic and planning agency; 9 the Vice-President, who the proviso nevertheless limits the appointing authority to

28
 Law on Public Officers

only one eligible, i.e., the incumbent Mayor of Olongapo office of governor (and other elective officials) began he
City. Since only one can qualify for the posts in question, was therefore already qualified to be proclaimed, to hold
the President is precluded from exercising his discretion to such office and to discharge the functions and
choose whom to appoint. Such supposed power of responsibilities thereof as of said date. In short, at that
appointment, sans the essential element of choice, is no time, he was already qualified to govern his native
power at all and goes against the very nature itself of Sorsogon. This is the liberal interpretation that should give
appointment. spirit, life and meaning to our law on qualifications
consistent with the purpose for which such law was
While it may be viewed that the proviso merely sets the enacted. So too, even from aliteral (as distinguished
qualifications of the officer during the first year of from liberal) construction, it should be noted that Section
operations of SBMA, i.e., he must be the Mayor of 39 of the Local Government Code speaks of
Olongapo City, it is manifestly an abuse of congressional "Qualifications" of "ELECTIVE OFFICIALS," not of
authority to prescribe qualifications where only one, and candidates. Why then should such qualification be
no other, can qualify. Accordingly, while the conferment of required at the time of election or at the time of the filing
the appointing power on the President is a perfectly valid of the certificates of candidacies, as Lee insists? Literally,
legislative act, the proviso limiting his choice to one is such qualifications unless otherwise expressly
certainly an encroachment on his prerogative. conditioned, as in the case of age and residence should
thus be possessed when the "elective [or elected] official"
begins to govern, i.e., at the time he is proclaimed and
at the start of his term in this case, on June 30, 1995.
[G.R. No. 120295. June 28, 1996]
JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON Paraphrasing this Court's ruling in Vasquez vs. Giapand Li
ELECTIONS, and RAUL R. LEE, respondents. Seng Giap & Sons,33 if the purpose of the citizenship
[G.R. No. 123755. June 28, 1996] requirement is to ensure that our people and country do
RAUL R. LEE, petitioner, vs. COMMISSION ON not end up being governed by aliens, i.e., persons owing
ELECTIONS and JUAN G. allegiance to another nation, that aim or purpose
FRIVALDO, respondents.
would not be thwarted but instead achieved by construing
PANGANIBAN, J.: the citizenship qualification as applying to the time of
proclamation of the elected official and at the start of his
term.

Facts:
Juan G. Frivaldo ran for Governor of Sorsogon
again and won. Raul R. Lee questioned his citizenship. He
QUALIFICATIONS
then petitioned for repatriation under Presidential Decree
No. 725 and was able to take his oath of allegiance as a PRESCRIBED BY
Philippine citizen.
CONSTITUTION
However, on the day that he got his citizenship, the Court
had already ruled based on his previous attempts to run
as governor and acquire citizenship, and had proclaimed
Lee, who got the second highest number of votes, as the
President [Sec. 2, Art. VI, Constitution]
newly elect Governor of Sorsogon. 1. Natural-born citizen
2. Registered voter
ISSUE: WON Frivaldo has acquired his citizenship; thus, 3. Able to read and write
making him eligible to run 4. At least 40 years old on election day
5. Philippine resident for at least 10 years
Held: Yes immediately preceding election day
RATIO: Philippine citizenship is an indispensable
requirement for holding an elective public office,31 and
Vice President [Sec. 3, Art. VII,
the purpose of the citizenship qualification is none other
Constitution]
than to ensure that no alien, i.e., no person owing 1. Natural-born citizen
allegiance to another nation, shall govern our people and 2. Registered voter
our country or a unit of territory thereof. Now, an official 3. Able to read and write
begins to govern or to discharge his functions only upon 4. At least 40 years old on election day
his proclamation and on the day the law mandates his 5. Philippine resident for at least 10 years
term of office to begin. Since Frivaldo re-assumed his immediately preceding election day
Y.E.

citizenship on June 30, 1995 the very day32 the term of

29
 Law on Public Officers

4. Bar member engaged in practice of law for

Senator [Sec. 3, Art. VI, Constitution] at least 10 years
1. Natural-born citizen 5. Not candidates for any elective position in
2. Registered voter election immediately preceding
3. Able to read and write appointment.
4. At least 35 years old on election day
5. Philippine resident for at least 2 years
immediately preceding election day Appointment
What: Selection, by the authority vested with the
power, of an individual who is to exercise the
Congressmen[Sec. 6, Art. VI, functions of a given office.
Constitution]
1. Natural-born citizen Nature of Appointment: Essentially a discretionary
2. 25 years old on election day power and cannot be delegated; it must be
3. Able to read and write performed by the officer upon whom it is vested
4. Except party list representatives, a according to his best lights, the only condition being
registered voter in district in which he shall that the appointee is should possess the
be elected qualifications required by law.
5. Resident thereof for not less than one year
immediately preceding election day Requisites for a Valid Appointment (V-PA-Qu-C-A)
1. The position is Vacant
2. Appointing authority must be vested with
Civil Service the Power to Appoint at the time of the
appointment is made.
Commissioners [Sec. 1 [1], Art. IXB. 3. The appointee must possess all the
Constitution] Qualifications and none of the
1. Natural-born citizen disqualifications.
2. 35 years old at time of appointment 4. Appointment has been confirmed by the
3. proven capacity for public administration CSC or Confirmed by the COA.
4. not a candidate for any elective position in 5. The appointee Accepts the appointment by
election immediately preceding taking the oath and entering into discharge
appointment of duty.

COMELEC Commissioners Designation

[Sec. 1[1], Art. IXC] What: The imposition of additional duties, usually by
1. Natural-born citizen law, on a person already in public service.
2. 35 years old at time of appointment
3. college degree holder
4. not a candidate for elective position in Appointment vs.
election immediately preceding
appointment Designation
5. chairman and majority should be members Appointment Designation
of the bar who have been engaged in the Definition
practice of law for at least 10 years Appointing authority selects Imposition of additional
an individual who will occupy duties upon existing office
a certain public office
COA Commissioners [Sec. 1[1], Comprehensive
As to extent of powers
Limited
Art. IXD]
As to security of tenure
1. Natural-born citizen Yes No
2. 35 years old at time of appointment 1st office abandoned when
3. CPA with - 10 year of auditing experience or
Y.E.

A 2nd designated position is A 2nd designated position is

assumed? assumed?

30
 Law on Public Officers

automatic reacquisition of the applicant’s Philippine

Usually yes No citizenship. [Labo v. COMELEC (1989)]
4. Legislative Act
Citizenship
WHO ARE FILIPINO CITIZENS? DUAL CITIZENSHIP AND
1. Citizens of the Philippines at the time of the
adoption of this Constitution; DUAL ALLEGIANCE
2. Those whose fathers or mothers are citizens DUAL CITIZENSHIP: Allows a person who acquires
of the Philippines; foreign citizenship to simultaneously enjoy the rights
3. Those who elected to be citizens. This is he previously held as a Filipino citizen. By sanguinis
available only to: and jus soli.
a) those born before January 17,
1973; DUAL ALLEGIANCE:
b) to Filipino mothers; AND 1. Aliens who are naturalized as Filipinos but
c) elect Philippine citizenship upon remain loyal to their country of origin
reaching the age of majority 2. Public officers who, while serving the
d) Those naturalized in accordance government, seek citizenship in another
with law. country
MODES OF ACQUIRING “Dual citizens” are disqualified from running for any
CITIZENSHIP elective local position. (LOCAL GOVERNMENT CODE,
sec. 40[d]); this should be read as referring to “dual
1. By Birth allegiance”
a) Jus Soli - “right of soil;” person’s
nationality is based on place of birth; Once a candidate files his candidacy, he is deemed to
b) Jus Sanguinis – “right of blood;” have renounced his foreign citizenship in case of
person’s nationality follows that of his dual citizenship. [Mercado v. Manzano (1999)]
natural parents. The Philippines
currently adheres to this principle. Citizenship requirement should be possessed on
2. By Naturalization start of term. The Local Government Code does not
specify any particular date or time when the
HOW MAY CITIZENSHIP candidate must possess the required citizenship,
unlike for residence and age. The requirement is to
BE REACQUIRED? ensure that no alien shall govern our people and
country or a unit of territory thereof. An official
1. Naturalization begins to govern or discharge his functions only
2. upon proclamation and on start of his term. This
3. Repatriation: liberal interpretation gives spirit, life and meaning to
Repatriation results in the recovery of the original our law on qualifications consistent with its purpose.
nationality. Therefore, if he is a natural-born citizen [Frivaldo v. COMELEC (1996)]
before he lost his citizenship, he will be restored to
his former status as a natural-born Filipino. Purpose of requirement:
[Bengson III v. HRET (2001)] The purpose of the citizenship requirement is to
ensure that no alien, i.e., no person owing allegiance
Mere filing of certificate of candidacy is not a to another nation, shall govern our people and
sufficient act of repatriation. Repatriation requires country or a unit of territory thereof. [Frivaldo v.
an express and equivocal act. [Frivaldo v. COMELEC COMELEC (1996)]
(1989)]

In the absence of any official action or approval by POWER OF

proper authorities, a mere application for
Y.E.

repatriation does not, and cannot, amount to an APPOINTMENT

31
 Law on Public Officers

The President shall nominate and, with the consent 1. All other officers of the government whose
of the Commission on Appointments, appoint the appointments are not otherwise provided
heads of the executive departments, ambassadors, for by law;
other public ministers and consuls, or officers of the 2. Those whom he may be authorized by law
armed forces from the rank of colonel or naval to appoint;
captain, and other officers whose appointments are 3. Members of the Supreme Court;
vested in him in this constitution. He shall also 4. Judges of lower courts;
appoint all other officers of the Government whose 5. Ombudsman and his deputies
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 Kinds of Appointments
appointment of other officers lower in rank in the 1. Regular appointment:
President alone, in the courts, or in the heads of a) Made by the President while
departments, agencies, commissions or boards. [Art. Congress is in session
VII, Sec. 16] b) Takes effect only after
confirmation by the Commission
There are 4 groups of officers whom the President on Appointments (COA)
may appoint: c) Once approved, continues until the
1. Heads of the Executive Department, end of the term of the appointee.
ambassadors, other public ministers and
consuls, officers of the armed forces from 2. Ad-interim appointment:
the rank of colonel or naval captain and a) Made by the President while
other officers whose appointments are Congress is not in session
vested in him; b) Takes effect immediately, BUT
2. All other officers of the government whose ceases to be valid (1) if
appointments are not otherwise provided disapproved by the CA or (2) upon
by law; the next adjournment of Congress.
3. Those whom the President may be [Art. VII, Sec. 16, par. 2] (3)
authorized to appoint; c) Ad interim appointments are
4. Officers lower in rank whose appointments permanent appointments. Ad
Congress may by law vest in the President Interim appointment to the
alone. Constitutional Commissions (e.g.
COMELEC) are permanent as it
takes effect immediately and can
PRESIDENTIAL no longer be withdrawn by the
President once the appointee has
APPOINTEES qualified into office. The fact that
WHO CAN BE NOMINATED AND APPOINTED ONLY it is subject to the confirmation of
WITH THE COMMISSION ON APPOINTMENTS’ the CA does not alter its
CONSENT? [Art. VII, Sec. 16, 1987 Const.] permanent character.
1. Heads of the executive departments
2. Ambassadors; Efficient. Recess appointment power keeps in
3. Other public ministers and consuls; continuous operation the business of government
4. Officers of the armed forces from the rank when Congress is not in session. The individual
of colonel or naval captain; chosen may thus qualify and perform his function
5. Other officers whose appointments are without loss of time.
vested in him by the Constitution, including
Constitutional Commissioners [Art. IX-B, (b) Duration. The appointment shall cease to be
Sec. 1 (2) for CSC; Art. IX-C, Sec. 1 (2) for effective upon rejection by the Commission on
COMELEC; Art. IX-D, Sec. 1 (2) for COA]. Appointments, or if not acted upon, at the
adjournment of the next session, regular or special,
WHO CAN THE PRESIDENT APPOINT WITHOUT CA’S of Congress.
Y.E.

APPROVAL?

32
 Law on Public Officers

(c) Permanent. It takes effect immediately and can Commissions (in order to preserve the latter’s
no longer be withdrawn by the President once the independence).
appointee has qualified into office.
The fact that it is subject to confirmation by the No need for CA confirmation even if Congress is in
Commission on Appointments does not alter its session. Also, Congress cannot impose on the
permanent character. president the obligation to appoint an incumbent
Undersecretary as [the President’s] temporary alter
The Constitution itself makes an ad interim ego.
appointment permanent in character by making it
effective until disapproved by the Commission on EFFECTIVITY OF APPOINTMENT: Immediately upon
Appointments or until the next adjournment of appointing authority’s issuance [Rule V, Sec. 10,
Congress. [Matibay v. Benipayo (2002)] Omnibus Rules]

(d) Not Acting. An ad interim appointment is EFFECTS OF A COMPLETE, FINAL AND IRREVOCABLE
distinguishable from an “acting” appointment which APPOINTMENT
is merely temporary, good until another permanent General Rule: An appointment, once made, is
appointment is issued. irrevocable and not subject to reconsideration.
1. It vests a legal right. It cannot be taken
(e) Applicable to COMELEC Commissioners, being away EXCEPT for cause, and with previous
permanent appointments, do not violate the notice and hearing (due process).
Constitutional prohibition on temporary or acting 2. It may be issued and deemed complete
appointments of COMELEC Commissioners. before acquiring the needed assent,
confirmation, or approval of some other
(f) By-passed Appointee may be Reappointed. officer or body.
Commission on Appointments’ failure to confirm an
ad interim appointment is NOT disapproval. An ad Exceptions:
interim appointee disapproved by the COA cannot 1. Appointment is an absolute nullity
be reappointed. But a by-passed appointee, or one 2. Appointee commits fraud
whose appointment was not acted upon the merits 3. Midnight appointments.
by the COA, may be appointed again by the General Rule: A President or Acting
President. President shall not appoint 2 months
immediately before the next presidential
(g) The grant to the President of the power to elections until his term ends. (Art. VII, Sec.
appoint OICs in ARMM does not violate the 15, 1987 Const.)
Constitution – The appointing power is embodied in Exception: Temporary appointments to
Sec. 16, Art VII of the Constitution, which pertinently executive positions when continued
states that the President shall appoint all other vacancies will prejudice public service or
officers of the government whom the President may will endanger public safety.
be authorized by law to appoint. Since the
President’s authority to appoint OICs emanates from Steps in the Appointing
RA 10153, it falls under this group of officials that
the President can appoint. Thus, the assailed law Process
rests on clear constitutional basis [Datu Michael As to Regular Appointments:
Abas Kida v. Senate of the Philippines (2011)] 1. Nomination by the President
2. Confirmation by the Commission on
3. Acting/Temporary appointment: Appointments
Can be withdrawn or revoked at the 3. Issuance of the commission
pleasure of the appointing power. The 4. Acceptance by the appointee.
appointee does not enjoy security of
tenure. As to interim Appointments:
The nomination, issuance of the appointment and
N.B. President constitutionally prohibited from acceptance by the appointee precede the
Y.E.

making such appointments to the Constitutional confirmation by the Commission on Appointments.

33
 Law on Public Officers

Facts:
As to Appointments which do not require
Confirmation by the COA:  The petitioner bases his claim on the following
1. Appointment by appointing authority communication addressed to him by the
2. Issuance of the commission Minister of Tourism, designating as General
3. Acceptance by the appointee. manager of the PTA.
 Pursuant thereto, the petitioner assumed
office on the same date.
As to Appointments in Career Service:
 Minister Gonzales sought approval from
Appoinment is not complete until attestation or
President Aquino of the composition of the
approval by the CSC. Board of Directors of the PTA, which included
Binamira as Vice-Chairman in his capacity as

Limitations on appointing General Manager. This approval was given by

the President on the same date.
 Binamira claims that since assuming office, he
power of the President had discharged the duties of PTA General
1. Art. VII, sec. 13, par. 2 - The spouse and Manager and Vice-Chairman of its Board of
relatives by consanguinity or affinity within Directors and had been acknowledged as such
by various government offices, including the
the 4th civil degree of the President shall
Office of the President.
not, during his "tenure", be appointed as:  He complains, though, that on January 2, 1990,
(a) Members of the Constitutional his resignation was demanded by respondent
Commissions; Garrucho as the new Secretary of Tourism.
(b) Member of the Office of
Ombudsman; President Aquino sent respondent Garrucho
(c) Secretaries; sent a memorandum stating that the PTA was
(d) Undersecretaries; then one who designated Binamira not by the
(e) Chairmen or heads of bureaus or President, as required by P.D. No. 564, as
amended, but only by the Secretary of
offices, including government-owned or
Tourism, such designation is invalid.
controlled corporations and their Accordingly, you are hereby designated
subsidiaries. concurrently as General Manager, effective
2. Recess (Ad Interim) appointments: immediately, until I can appoint a person to
The President shall have the power to make serve in the said office in a permanent capacity.
appointments during the recess of the
Congress, whether voluntary or  Garrucho having taken over as General
compulsory, but such appointments shall be Manager of the PTA in accordance with this
effective only until disapproval by the memorandum, the petitioner filed this action
Commission on Appointments or until the against him to question his title. Subsequently,
while his original petition was pending,
next adjournment of the Congress. (art. VII,
Binamira filed a supplemental petition alleging
sec. 16[2]) that on April 6, 1990, the President of the
G.R. No. 92008 July 30, 1990 Philippines appointed Jose A. Capistrano as
General Manager of the Philippine Tourism
RAMON P. BINAMIRA, petitioner, Authority. Capistrano was impleaded as
vs. additional respondent.
PETER D. GARRUCHO, JR., respondent.
Issue: WON the appointment of petitioner is valid
CRUZ, J.:
Held: No
In this petition for quo warranto, Ramon P. Binamira
seeks reinstatement to the office of General Manager of Ratio: Section 23-A of P.D. 564, which created the
the Philippine Tourism Authority from which he claims to Philippine Tourism Authority, provides as follows:
have been removed without just cause in violation of his
security of tenure.
SECTION 23-A. General Manager-Appointment and
Tenure. — The General Manager shall be appointed by
Y.E.

the President of the Philippines and shall serve for a term

34
 Law on Public Officers

of six (6) years unless sooner removed for

cause; Provided, That upon the expiration of his term, he The Civil Service
shall serve as such until his successor shall have been
appointed and qualified.
APPOINTMENTS TO THE
Petitioner was not appointed by the President of the
Philippines but only designated by the Minister of
Tourism. There is a clear distinction between
CIVIL SERVICE
Scope: Embraces all branches, subdivisions,
appointment and designation that the petitioner has
failed to consider instrumentalities and agencies of the Government,
including government-owned and controlled
Even if so understood, that is, as an appointment, the corporations with original charters [Sec. 2(1), Art. IX-
designation of the petitioner cannot sustain his claim B, Constitution]
that he has been illegally removed. The reason is that the
decree clearly provides that the appointment of the General Rule: Made only according to merit and
General Manager of the Philippine Tourism Authority fitness to be determined, as far as practicable, by
shall be made by the President of the Philippines, not by competitive examination.
any other officer. Appointment involves the exercise of
discretion, which because of its nature cannot be Exceptions:
delegated. Legally speaking, it was not possible for
1. Policy determining – where the officer lays
Minister Gonzales to assume the exercise of that
discretion as an alter ego of the President. The down principal or fundamental guidelines
appointment (or designation) of the petitioner was not a or rules; or formulates a method of action
merely mechanical or ministerial act that could be validly for government or any of its
performed by a subordinate even if he happened as in subdivisions;e.g. department head.
this case to be a member of the Cabinet. 2. Primarily confidential – denoting not only
confidence in the aptitude of the appointee
With these rulings, the petitioner's claim of security of for the duties of the office but primarily
tenure must perforce fall to the ground. His designation close intimacy which ensures freedom of
being an unlawful encroachment on a presidential intercourse without embarrassment or
prerogative, he did not acquire valid title thereunder to freedom from misgivings or betrayals on
the position in question. Even if it be assumed that it
confidential matters of state ; OR one
could be and was authorized, the designation signified
merely a temporary or acting appointment that could be
declared to be so by the President of the
legally withdrawn at pleasure, as in fact it was (albeit for Philippines upon the recommendation of
a different reason). In either case, the petitioner's claim the CSC.
of security of tenure must be rejected 3. Highly technical – requires possession of
technical skill or training in supreme
The Court sympathizes with the petitioner, who degree.
apparently believed in good faith that he was being
extended a permanent appointment by the Minister of Disqualifications:
Tourism. After all, Minister Gonzales had the ostensible 1. No candidate who has lost in any election
authority to do so at the time the designation was made. shall within 1 year after such election, be
This belief seemed strengthened when President Aquino appointed to any office in the Government
later approved the composition of the PTA Board of
of any GOCC or in any of its subsidiaries.
Directors where the petitioner was designated Vice-
Chairman because of his position as General Manager of (art. IX-B, sec. 6)
the PTA. However, such circumstances fall short of the 2. No elective official shall be eligible for
categorical appointment required to be made by the appointment or designation in any capacity
President herself, and not the Minister of Tourism, under to any public office or position during his
Sec. 23 of P.D. No. 564. We must rule therefore that the tenure. (art. IX-B, sec. 7[1])
petitioner never acquired valid title to the disputed 3. Unless otherwise allowed by law OR by the
position and so has no right to be reinstated as General primary functions of his position, no
Manager of the Philippine Tourism Authority. appointive official shall hold any other
office or employment in the Government or
any subdivision agency or instrumentality
Y.E.

35
 Law on Public Officers

thereof including GOCCs or their the pleasure of the President, and

subsidiaries. (art. IX-B, sec. 7[2]) their personal and confidential
4. No office or employee in the civil service staff;
shall engage directly or indirectly, in any III. Chairmen and members of
electioneering or partisan political activity. commissions and bureaus with
(art. IX-B, sec. 2[4]) fixed terms;
IV. Contractual personnel;
V. Emergency and seasonal
Classes of Service personnel.
a) Career Service – Characterized by entrance
(a) based on merit and fitness to be PINEDA V. CLAUDIO
determined, as far as practicable, by
competitive examinations, OR(b) based on FACTS:
highly technical qualifications; with  In 1968, the Chief of Police of Pasay City died.
Then Mayor Jovito Claudio appointed State
opportunity for advancement to higher
Prosecutor Francisco Villa as the replacement.
career positions and security of tenure. The Deputy Chief of Police, Basilio Pineda,
I. Open career positions – where assailed the appointment of Villa as he
prior qualification in an claimed that he has preferential rights over
appropriate examination is Villa because he is next in line. Pineda’s
required. position is supported by the Civil Service
II. Closed career positions – e.g. Commissioner Abelardo Subido who held in
scientific or highly technical in abeyance the appointment of Villa. Subido
nature; further stated that according to the Civil
Service Act as well as in a previous Supreme
III. Career Executive Service – e.g.
Court decision (Millares vs Subido, August 10,
undersecretaries, bureau 1967), in filling up vacancies in local offices
directors the order of priority is as follows:
IV. Career Officers – other than 1. Promotion (next in rank)
those belonging to the Career 2. Transfer (lateral movement)
Executive Service who are 3. Reinstatement/Reemployment
appointed by the President, 4. Certification (usually certified
e.g. those in the foreign outsiders)
service  That in case the next in line cannot be
V. Positions in the AFP although promoted due to “special reasons”, only then
can someone be promoted in the subsequent
governed by a different merit
order of transfer, reinstatement, or
system certification. Subido pointed out that Claudio
VI. Personnel of GOCCs with did not provide a special reason why he chose
original charters Villa over Pineda.
VII. Permanent laborers, whether  Claudio replied by stating that Pineda’s track
skilled, semi-skilled or record shows that he was not able to solve
unskilled. the sagging inefficiency of the local police
b) Non-career Service – characterized by organization.
entrance on bases other than those of the  The DOJ Secretary supported Claudio’s
position and he pointed out that in as far as
usual tests utilized for the career service;
filling up a vacancy in the police department is
tenure limited to a period specified by law,
concerned, what governs is the Police Act of
or which is co-terminus with that of the 1966 and in said law, it is provided that it is
appointing authority or subject to his within the mayor’s discretion as to who he
pleasure, or which is limited to the duration should appoint to said office.
of a particular project for which purpose
the employment was made. ISSUE: WON Pineda, as Deputy Chief of Police, has a
I. Elective officials, and their preferential right to the said public office.
personal and confidential staff;
Held: No
II. Department heads and officials of
Y.E.

Cabinet rank who hold office at

36
 Law on Public Officers

RATIO: The ruling in the Millares case is not conclusive the appointment or promotion is actually
because such case has different circumstances. It must made. (Emphasis supplied)
be clarified though that as far as practicable, in case of a
vacancy, the next in line shall be promoted by the But while petitioners have shown themselves
appointing authority. But if not, the vacancy may be entitled to promotions (except Campillo and Gonzales
filled either by transfer, reinstatement, reemployment whose ratings in many semesters fall below 85%), we
or certification — not necessarily in that order. There is see no reason for ordering the payment to them of back
no rule which states that the mayor must appoint the salaries. Section 256 of the Revised Administrative Code
next in line. It is not his ministerial duty to do so nor is it is explicit in laying down the appointments are not to
mandatory. The appointing power can choose whether take effect prior to the date of appointment, unless so
to appoint by promotion, transfer, reinstatement, or provided by the Head Department for exceptional
certification (as what Claudio did in this case). It is reasons. Moreover, petitioners themselves aver that
necessary for effective public administration that the these appointments have yet to be passed upon and
mayor appoints men of his confidence, provided they approved by the Office of the President thru proper
are qualified and eligible, who in his best estimation are channels. To order payment of back salaries is to
possessed of the requisite reputation, integrity, impose on a co-equal branch of the government.
knowledgeability, energy and judgment. After all, it is
the local executive, more than anyone else, who is
primarily responsible for efficient governmental
administration in the locality and the effective CUEVAS V. ATTY BACAL
maintenance of peace and order therein, and is directly FACTS
answerable to the people who elected him. This case involves the appointment and
The Supreme Court also clarified that the only transfer of career executive service officers
time that an appointing power is required to provide (CESOs). More specifically, it concerns the
specific reasons on why a next in rank is not appointed “appointment” of respondent Josefina G. Bacal, who
is that if the appointing power chose promotion as the holds the rank of CESO III, to the position of Chief Public
method to fill up the vacancy. (This is illustrated if say, Attorney in the Public Attorney’s Office, which has a CES
there are two next in rank persons and the person lower Rank Level I, and her subsequent transfer, made
in rank is chosen instead of the other higher in rank). without her consent, to the Office of the Regional
Director of the PAO because of the appointment of Atty.
GESOLGON V. LACSON Carina Demaisip to the position of Chief Public Defender
FACTS (formerly Chief Public Attorney). Atty. Bacal filed a
petition for quo warranto ruled in her favor by the Court
ISSUE: WON the petitioners were deprived of the of Appeals. Hence this petition for review on certiorari.
increase in salary
ISSUE
HELD: No (1) Bacal is entitled of security of tenure
considering that she belongs to Career Service;
RATIO: We are aware of no law, rule or regulation, and (2) security of tenure in the Career Executive
are pointed to none, which grants to a civil service Service is acquired with respect to the
employee the right to automatically enjoy the salary to position or to the rank the officer is holding;
which his item has been increased while occupying the (3) CESOs may be shifted from one position to
same. That an increase in the salary attached to a another without violating their security of
position is considered a promotion, has to be conceded. tenure;
Section 256 of the Revised Administrative Code (4) Bacal’s unconsented transfer from Acting
provides: Chief Public Attorney to Regional Director
constitutes a demotion;
Where a new position is created or the salary
of an existing position is increased, RATIO
appointment to such new position or
promotion to the increased salary shall not be (1) No. The mere fact that a position belongs
effective, unless expressly so provided, prior to the Career Service does not automatically confer
to the enactment of the law creating the new security of tenure on its occupant even if he does not
position or authorizing the higher salary; and possess the required qualifications. Such right will have
aside from exceptional cases approved as such to depend on the nature of his appointment, which in
by the proper Head of Department, an turn depends on his eligibility or lack of it. A person
appointment or promotion shall not be who does not have the requisite qualifications for the
Y.E.

effective as of a date prior to that upon which position cannot be appointed to it in the first place or,

37
 Law on Public Officers

only as an exception to the rule, may be appointed to it SANTOS V. EXECUTIVE SECRETARY

merely in an acting capacity in the absence of FACTS
appropriate eligibles. Here, Atty. Bacal has a rank of Rosalinda Santos was an ambassadress sent to
CESO III “appointed” to a position of CESO I. The Geneva for a mission. On her trip, she bought a
appointment extended to him cannot be regarded as discounted ticket which provided that she could bring
permanent even if it may be so designated. someone with her so she brought with her her adopted
daughter. Some of her co-workers complained because
(2) Security of tenure in the career executive they thought that Santos used government fund to
service is acquired with respect to rank and not to finance her daughter’s fare. It was later found out that
position.The guarantee of security of tenure to the cost of the said ticket is actually 50% less than the
members of the CES does not extend to the particular amount that was given to Santos to be used for her
positions to which they may be appointed a concept expenses for the trip. Nevertheless, because of her
which is applicable only to first and second-level refusal to appear before the disciplinary board, she was
employees in the civil service but to the rank to which found guilty of misconduct. Upon her appeal to the
they are appointed by the President. Here, respondent Office of the President and after review, then president
did not acquire security of tenure by the mere fact that Corazon Aquino issued Administrative Order No. 122
she was appointed to the higher position of Chief Public which declared Santos guilty of dishonesty. She was
Attorney since she was not subsequently appointed to then removed from her post and was replaced.
the rank of CESO I based on her performance in that
position as required by the rules of the CES Board. ISSUE
WON Santos should BE reinstated to her
(3) Yes. Members of the Career Executive office.
Service may be reassigned or transferred from one
position to another and from one department, bureau RATIO
or office to another;provided that such reassignment or NO. Even though the Supreme Court found
transfer is made in the interest of public service and evidence which showed that Santos was not guilty of
involves no reduction in rank or salary; provided, misconduct or dishonesty as in fact what she did of
further, that no member shall be reassigned or securing a ticket which was 50% the cost of what was
transferred oftener than every two years. If a CESO is allotted for her travel expense for tickets and thus was
assigned to a CES position with a higher salary grade beneficial to the government (for she helped save and
than that of his CES rank, he is allowed to receive the lessen the expenses), the SC does not have the power to
salary of the CES position. Should he be assigned or reverse the recall done to Santos. She cannot be
made to occupy a CES position with a lower salary reinstated by the SC to her position for the removal
grade, he shall continue to be paid the salary attached power of the president is solely her prerogative.
to his CES rank. Here, there is a valid transfer of Atty. Further, the position held by Santos is primarily
Bacal to the Regional Office as it was made in the confidential. Her position lasts upon the pleasure of the
interest of public service and she is still compensated president. When the pleasure turns into displeasure she
according to her CES rank. is not actually removed from her position or office but
rather her term merely expires. Also, her position
(4) No. Respondent’s appointment to the involves foreign relations which is vested solely in the
position of Chief Public Attorney was merely temporary executive. The SC cannot inquire upon the wisdom or
and that, consequently, her subsequent transfer to the unwisdom of the exercise of such prerogative. Thus, the
position of Regional Director of the same office, which assignment to and recall from posts of ambassadors are
corresponds to her CESO rank, cannot be considered a prerogatives of the President, for her to exercise as the
demotion, much less a violation of the security of exigencies of the foreign service and the interests of the
tenure guarantee of the Constitution. The rule that nation may from time to time dictate.
outlaws unconsented transfers as anathema to security
of tenure applies only to an officer who is appointed –
not merely assigned – to a particular station. Such a rule
does not proscribe a transfer carried out under a
Election protest is a contest
between the defeated and winning candidates on
specific statute that empowers the head of an agency to
periodically reassign the employees and officers in order
the ground of frauds or irregularities in the casting
to improve the service of the agency. and counting of the ballots, or in the preparation of
the returns. It raises the question of who actually
obtained the plurality of the legal votes and
therefore is entitled to hold the office.
Y.E.

An election contest consists of either:

38
 Law on Public Officers

1. an election protest or a 2. It should be decided within 15 days from

2. quo warranto which, although two distinct filing in case of barangay officials
remedies, would have one objective in
view: to dislodge the winning candidate WHO HAS JURISDICTION
from office. 1. COMELEC – over all contests relating to the
elections, returns and qualifications of all
In an election protest, the protestee may be ousted elective regional, provincial and city officials
and the protestant seated in the office vacated. [Sec. 250, BP 881]
2. RTC - over contests involving municipal
General Rule: the filing of an election protest or a officials [Sec. 251, BP 881]
petition for quo warranto precludes the subsequent 3. MeTC or MTC – over election contests
filing of a pre-proclamation controversy, or amounts involving barangay officials [Sec. 252, BP
to the abandonment of one earlier filed, thus 881]
depriving the COMELEC of the authority to inquire
into and pass upon the title of the protestee or the GROUNDS:
validity of his proclamation. The reason is that once 1. Fraud
the competent tribunal has acquired jurisdiction of 2. Terrorism
an election protest or a petition for quo warranto, all 3. Irregularities
questions relative thereto will have to be decided in 4. Illegal acts committed before, during, or
the case itself and not in another proceeding. This after the casting and counting of votes
procedure will prevent confusion and conflict of
authority. Conformably, we have ruled in a number
of cases that after a proclamation has been made, a QUO WARRANTO
preproclamation case before the COMELEC is no What: A petition for quo warranto under the
longer viable. Omnibus Election Code raises in issue the disloyalty
or ineligibility of the winning candidate. It is a
Exceptions: proceeding to unseat the respondent from office but
1. the board of canvassers was improperly not necessarily to install the petitioner in his place.
constituted;
2. quo warranto was not the proper remedy; In a quo warranto proceeding, the petitioner is not
3. what was filed was not really a petition for occupying the position in dispute. Moreover, under
quo warranto or an election protest but a the Omnibus Election Code, quo warranto is proper
petition to annul a proclamation; only for the purpose of questioning the election of a
4. the filing of a quo warranto petition or an candidate on the ground of disloyalty or ineligibility.
election protest was expressly made
without prejudice to the pre-proclamation It is a proceeding to unseat the ineligible person
controversy or was made ad cautelam; and from office but not to install the protestant in his
5. the proclamation was null and void. place. In this sense, it is strictly speaking, not a
contest where the parties strive for supremacy.
While the respondent may be unseated, the
NATURE: Summary proceeding of a political petitioner will not be seated.
character
WHO MAY FILE: Any voter
PURPOSE: To ascertain the candidate lawfully
elected to office WHEN: Within 10 days after the proclamation of the
results of the election.
WHO MAY FILE: A candidate who has duly filed a
certificate of candidacy and has been voted for. WHO HAS JURISDICTION:
 COMELEC – over petitions for quo warranto
WHEN: Within 10 after the proclamation of the involving regional, provincial and city
results of the election. officials [Sec. 253, BP 881]
1. It is suspendeded during the pendency of a
Y.E.

preproclamation controversy

39
 Law on Public Officers

 RTC - over petitions for quo warranto Appointment is a highly discretionary act that
involving municipal officials [Sec. 253, BP even this Court cannot compel.1âwphi1 While the act of
881] appointment may in proper cases be the subject of
mandamus, the selection itself of the appointee—taking
 MeTC or MTC – over petitions for quo
into account the totality of his qualifications, including
warranto involving barangay officials [Sec. those abstract qualities that define his personality—is
253, BP 881] the prerogative of the appointing authority. This is a
matter addressed only to the discretion of the
GROUNDS: appointing authority. It is a political question that the
1. Ineligibility Civil Service Commission has no power to review under
2. Disloyalty to the Republic the Constitution and the applicable laws.

LAPINID V. CSC
FACTS LACSON V. ROMERO
Petitioner Renato M. Lapinid was appointed FACTS
by the Philippine Ports Authority to the position of Petitioner Lacson was on July 25, 1946,
Terminal Supervisor at the Manila International appointed by the President of thePhilippines, provincial
Container Terminal on October 1, 1988. This fiscal of Negros Oriental. The appointment was
appointment was protested on December 15, 1988, by confirmed by theCommission on Appointment on
private respondent Juanito Junsay, who reiterated his August 6, 1946. He took his oath of office on August10,
earlier representations with the Appeals Board of the 1946, and thereafter performed the duties of that
PPA on May 9, 1988, for a review of the decision of the office.Upon recommendation of the Secretary of
Placement Committee dated May 3, 1988. He Justice, on May 17, 1949, the Presidentnominated
contended that he should be designated terminal petitioner Lacson to the post of provincial fiscal of
supervisor, or to any other comparable position, in view Tarlac. On the samedate, the President nominated for
of his preferential right thereto. the position of provincial fiscal of Negros
After a careful review of the records of the case, Orientalrespondent Romero. Both nominations were
the Commission finds the appeal meritorious. It is thus simultaneously confirmed by theCommission on
obvious that Protestants Junsay (79.5) and Villegas (79) Appointments on May 19, 1949.Lacson neither accepted
have an edge over that of protestees Lapinid (75) and the appointment nor assumed the office of fiscal of
Dulfo (78). Tarlac.But respondent Romero took his oath of office
(the post of fiscal of Negros Oriental) inManila on June
Foregoing premises considered, it is directed that 16, 1949, notified the Solicitor General of the fact, and
Appellants Juanito Junsay and Benjamin Villegas be thereafter proceeded to his station. Upon arrival at
appointed as Terminal Supervisor (SG 18) vice Dumaguete City, capital of Negros Oriental,he notified
protestees Renato Lapinid and Antonio Dulfo Lacson of his intention to take over the office the
respectively who may be considered for appointment to following day, but Lacsonobjected. Hence this petition
any position commensurate and suitable to their
qualifications, and that the Commission be notified ISSUE
within ten (10) days of the implementation hereof. WON Lacson is entitled to the positioN

ISSUE RATIO
WON the CSC can oust Lapinid from his YES. The appointment to a government post
position like that of provincial fiscal to be completeinvolves
RATIO several steps. First, comes the nomination by the
NO. the Civil Service Commission has no President. Then to makethat nomination valid and
power of appointment except over its own personnel. permanent, the Commission on Appointments of
Neither does it have the authority to review the theLegislature has to confirm said nomination. The
appointments made by other offices except only to last step is the acceptance thereof bythe appointee by
ascertain if the appointee possesses the required his assumption of office. The first two steps, nomination
qualifications. The determination of who among andconfirmation, constitute a mere offer of a post. They
aspirants with the minimum statutory qualifications are acts of the Executive andLegislative departments of
should be preferred belongs to the appointing authority the Government. But the last necessary step to make
and not the Civil Service Commission. It cannot disallow theappointment complete and effective rests solely
an appointment because it believes another person is with the appointee himself. He may or he may not
better qualified and much less can it direct the accept the appointment or nomination. As held in the
appointment of its own choice. case of Borromeo vs.Mariano, 41 Phil. 327,"there is no
Y.E.

Power in this country which can compel a man toaccept

40
 Law on Public Officers

an office." Consequently, since Lacson has declined to (d) members of the Armed Forces of the Philippines:
accept his appointmentas provincial fiscal of Tarlac and Provided, however, That in each particular instance full
no one can compel him to do so, then he continuesas report of such appointment shall be made to
provincial fiscal of Negros Oriental and no vacancy in the Commission."
said office was created,unless Lacson had been lawfully
removed as Such fiscal of Negros Oriental. Yes. The law (Sec 59 Nepotism, (1) ) defines nepotism as
all appointments to the national, provincial, city and
municipal governments or in any branch or
BORROMEO V. MARIANO instrumentality thereof, including government owned
FACTS or controlled corporations, made in favor of a relative of
ISSUE the
WON petitioner can be removed from the 24th 1. appointing or
2. recommending authority, or of the
RATIO 3. chief of the bureau or office, or of
NO. A judge may not be made a judge of 4. the persons exercising immediate
another district without his consent. Appointment and supervision over him.
qualification to office are separate and distinct things. The word "relative" and members of the
Appointment is the sole act of the appointee. There is family referred to are those related within the
third degree either of consanguinity or of
no power which can compel a man to accept the office.
affinity.

CSC found respondent guilty of nepotism as a

CSC V. DACOYCOY result of the appointment of his 2 sons Rito, a driver and
FACTS Ped, a utility worker, as they are under his immediate
Pedro Dacoycoy, respondent, is the vocational supervision and control as the school administrator.
school administrator of Balicuatro College of Arts and
Trades in Northern Samar. After formal investigation by
the CSC, he was found guilty of nepotism on two counts.
CSC imposed on him the penalty of dismissal from the
service.
Compensation
Respondent filed motion for reconsideration, anchoring Salaries: The salaries of Senators and
on the the argument that he was not the appointing or Representatives shall be determined by law.
the recommending authority. CA reversed CSC's
resolution ruling that the respondent did not appoint his No increase in said compensation shall take effect
2 sons, therefore he is not guilty of nepotism. until after the expiration of the full term of all the
Members of the Senate and the House of
ISSUE
WON Dacoycoy is guilty of nepotism Representatives approving such increase. [Art. VI,
Sec. 10].
RATIO
YES. "Sec. 59. Nepotism. - (1) All The ex-officio position being actually (i.e. merely
appointments to the national, provincial, city and additional duty) and in legal contemplation part of
municipal governments or in any branch or the principal office, it follows that the official
instrumentality thereof, including government owned concerned has no right to receive additional
or controlled corporations, made in favor of a relative compensation for his services in said position.
of the appointing or recommending authority, or of
[National Amnesty Commission v. COA (2004]
the chief of the bureau or office, or of the persons
exercising immediate supervision over him, are hereby
prohibited. There is no violation when another office is held by a
public officer in an ex officio capacity (where one
"As used in this Section, the word "relative" and can’t receive compensation or other honoraria
members of the family referred to are those related anyway), as provided by law and as required by the
within the third degree either of consanguinity or of primary functions of his office. [National Amnesty
affinity. [Commission v. COA (2004)]
(2) The following are exempted from the operations of
RIGHT TO SALARY
Y.E.

the rules on nepotism: (a) persons employed in a

confidential capacity, (b) teachers, (c) physicians, and

41
 Law on Public Officers

Salary: personal compensation to be paid to the RIGHT TO BACK SALARIES: Back salaries are payable
public officer for his services, and it is generally a to an officer illegally dismissed or otherwise unjustly
fixed annual or periodical payment depending on the deprived of his office, the right to recover accruing
time and not on the amount of the services he may from the date of deprivation. The claim for back
render. salaries must be coupled with a claim for
reinstatement and subject to the prescriptive period
Distinguished from wages in that salary is given to of 1 yr
officers of higher degree of employment than those
to whom wages are given To fall under this exception 2 conditions must be
complied with:
The power to fix the compensation of public officers 1. the employee must be found
is not inherently and exclusively legislative in innocent of the charges
character. 2. his suspension must be unjustified.

Unless the Constitution expressly or impliedly Right to Vacation Leave and Sick Leave with Pay:
prohibits Congress from doing so, it may delegate Under Sec. 81 of the LGC, elective officials shall be
the power to other government bodies or officers. entitled to the same leave privileges as those
enjoyed by appointive local officials, including the
The salary of a public officer may not, by accumulation and commutation thereof.
garnishment, attachment or order of execution, be
seized before being paid to him and, appropriated Government officers and employees are entitled to
for the payment of his debts. commutation of all leave credits without limitation
and regardless of the period when the credits were
Rationale behind this doctrine: consideration of earned provided the claimant was in the service as
public policy. The functions and public services of Jan. 9, 1985 [Presidential Memo Circular No. 54]
rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public RIGHT TO RETIREMENT PAY: given to government
funds from their legitimate and specific objects, as employees to reward them for giving giving the best
appropriated by law. [De la Victoria v. Burgos, years of their lives in the service of their country.
(1995)] Retirement laws are liberally construed in favor of
the retieree.
BASIS OF RIGHT TO COMPENSATION
The relation between an officer and the public is not It may not be withheld and applied to his
the creation of contract, nor is the office itself a indebtedness to the government
contract. Hence, his right to compensation is not the
creation of contract. It exists as the creation of law
and belongs to him not by force of any contract but
because the law attaches it to the office.

The right to compensation grows out of the services

rendered. After services have been rendered, the
compensation thus earned cannot be taken away by
a subsequent law.

As a general proposition, a public official is not

entitled to any compensation if he has not rendered
any service. [Acosta v. CA, (2000)]
Right of a de facto officer to salary: where there is
no de jure officer, a de facto officer who, in good
faith, has possession of the office and has discharged
the duties thereof, is entitled to salary
Y.E.

42