Sandra M.T.

Magalang 2005-37421 Law on Public Officers DISQUALIFICATIONS OF PUBLIC OFFICERS Disqualification the state of possessing characteristics or circumstances which will cause a person not to qualify for public office. - Possession of characteristics or circumstances which a candidate or applicant for a public office should not have. A. General Disqualifications these are disqualifications which apply generally to all public officers, whether appointive or elective. 1) MENTAL INCAPACITY Rule: A person mentally incapacitated is incapable of holding or assuming public office. o Basis: Public office presumes the exercise of official and governmental functions which a person not legally capacitated to act can never carry out. Under Article 38 of the Civil Code, insanity or imbecility are restrictions on a persons capacity to act. o Section 40 (g) of the Local Government Code disqualifies the insane or feebleminded. 2) MISCONDUCT OR CRIME GR: A person convicted of a crime cannot run for or hold public office, especially if the crime is one involving moral turpitude o Basis: Article XI, Section 1: Public office is a public trust, and it requires that public officers be of utmost integrity o Conviction for any crime which carries with it the accessory penalty of temporary or permanent absolute disqualification will cause a person to be disqualified from holding any office in the Republic of the Philippines. In case of temporary absolute disqualification, the disqualification shall last during the term of the sentence (Article 30, Revised Penal Code). Penalties in which these accessory penalties are inherent include: Death (perpetual absolute disqualification) Reclusion perpetua and reclusion temporal (perpetual absolute disqualification) Prision mayor (temporary absolute disqualification) Prision correctional (suspension from public office only) o Section 40 (a), Local Government Code: persons sentenced by a final judgment for an offense involving moral turpitude or for an offense punishable by one year or more of imprisonment are disqualified from running for any elective local position within two years after serving sentence Exceptions: When pardoned and right to hold public office expressly restored. o Effect of pardon (Article 36, Revised Penal Code): GR: does not restore the right to hold public office or the right of suffrage E: if such rights be expressly restored by the terms of the pardon. 3) HOLDING OTHER OFFICE GR: A public officer is constitutionally prohibited from holding more than one office. Holding a first office constitutes a disqualification for a second office. o Bases: Article IX-B, Section 7 of the 1987 Constitution

Page

Article VI, Section 13: prohibition on Senators or Members of the HOR Article VII, Section 13: prohibition on the President and the members of his official family o Article VIII, Section 12: prohibition on the Members of the Supreme Court and of other courts established by law o Article IX-A, Section 2: prohibition on the Members of the Constitutional Commissions o Article XI, Section 8: prohibition on the Ombudsman and his deputies o Article XVI, Section 5 (4): prohibition on members of the armed forces in the active service o Section 94 (a), Local Government Code (but see Flores v. Drilon) o Section 54 (1), Chapter 7, Title I, Book V, EO 292: no elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Exceptions: o As to elective officers: The President who could chair the National Security Council (Civil Liberties Union v. Executive Secretary) The President may chair the NEDA (Article XII, Section 9) The Vice-President may be appointed as Cabinet Member (Article VII, Section 3) o As to appointive officers: The Secretary of Justice may sit as ex-officio member of the JBC (Article VIII, Section 8) Cabinet members, their deputies or assistants may sit in another office provided it is in an ex-officio capacity, related to the primary functions of their office, without need for additional appointment and without additional compensation (Civil Liberties Union v. Executive Secretary) All other appointive officers not falling within Article VII, Section 13 may hold another office provided it is allowed by law or by the primary functions of their office (Article IX-B, Section 7; Section 54 (2), Chapter 7, Title I, Book V, EO 292) o o

B. Special Disqualifications these are disqualifications which pertain only to particular set of officers. 1) PHYSICAL INCAPACITY GR: Physical incapacity by itself is not a disqualification for public office. o Basis: Section 5 of the Magna Carta for Persons with Disability (R.A. 7277, as amended by R.A. 10524) expressly mandates equal opportunity for employment in favour of persons with disability. E: When the nature of the job requires particular body or sensory functions not possessed by a person with disability, e.g., driver. 2) REMOVAL OR SUSPENSION FROM OFFICE GR: Removal or suspension per se does not operate to disqualify a person from holding public office. o When the law does not specifically impose disqualification as a consequence of a misconduct for which the penalty of removal or suspension is appropriate, i.e.,

Page

where there is no constitutional or statutory ineligibility for such cause, the disciplining authority should not impose such disability. o However, a person removed from office cannot run or hold the same position to fill the vacancy created by his removal. Exceptions: o When the Constitution or the law itself disqualifies: Section 40 (b), Local Government Code: public officers removed from office as a result of an administrative case are disqualified from running for any elective local position. Article XI, Section 3 (7): persons impeached from office may be disqualified from holding any office under the Republic of the Philippines o When the removal or suspension from office is imposed as a consequence of misconduct in office, and the penalty specifically imposes a personal disqualification on the public officer concerned. E.g., when as a consequence of an administrative case against a public officer, the judgment rendered metes out disqualification from holding any public office When, as a consequence of criminal proceedings against a public officer, the accessory penalty of temporary or perpetual absolute disqualification is imposed in addition to removal from office.

3) PREVIOUS TENURE OF OFFICE GR: Previous occupancy of the same office is a disqualification for certain public officers. o Article VII, Section 4: a person who has been elected to and has held office of President is absolutely disqualified for any re-election regardless of length of time he served as such. o Article IX-B, Sec. 1(2), Article IX-C, Sec. 1(2), Article IX-D, Sec. 1(2), Article XI, Sec. 11: previous tenure of office works as a disqualification for certain appointive officers, i.e., Members of the Constitutional Commissions and the Ombudsman and his Deputies, who cannot be reappointed. Exceptions: o Article VII, Section 4: a person who merely succeeded as President is disqualified only if he has served as such for more than four years. o Article XI, Section 11: although not the same office, the Ombudsman and his Deputies shall not be qualified to run for an elective office in an election immediately succeeding their cessation from office. 4) PRACTICE OF PROFESSION this is not, strictly speaking, a disqualification but rather a limitation on the freedom of public officers to practice their professions or engage in other occupational activities. Rule: Public office is a full time job. Public officers are prohibited from directly or indirectly practicing other professions or from moonlighting in any other employment or occupational activity. o Article VII, Section 13: absolute prohibition on the President and his official family from holding any other office or employment or directly or indirectly practicing any other profession. o Article VI, Section 14: no Senator or Member of the HOR may personally appear as counsel before any court of justice, quasi-judicial or administrative bodies. o Section 90 (a), Local Government Code: all governors, city and municipal mayors are prohibited from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives

Page

Section 7 (b), R.A. 6713: Public officers during their incumbency shall not engage in the private practice of their profession unless authorized by Constitution or by law, provided that such practice will not conflict or tend to conflict with their official functions. Exceptions: o When the law itself allows such practice Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours (Section 90 (b), LGC) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency, provided they do not derive any monetary compensation therefrom. (Section 90 (c), LGC) o When the public officer concerned has obtained a limited authority to practice his or her profession from the department head o

Special disqualifications for elective officers: 5) IMPEACHMENT GR: Impeachment is a ground for disqualification from further holding office under the Republic of the Philippines. o Basis: Article XI, Sec. 3 (7) Qualification: The disqualification applies only to impeachable officers, i.e., President, Vice-President, Members of the Supreme Court, Members of the Constitutional Commissions, and the Ombudsman, and only if the judgment of conviction so provides. 6) CONSECUTIVE TERMS Rule: Holding the same elective position for a specified number of terms is a disqualification for certain elective officers. o Article VI, Section 4: a Senator shall not serve for more than two consecutive terms. o Article VI, Section 7: a Member of the HOR shall not serve for more than three consecutive terms. o Article VII, Section 4: the Vice-President shall not serve for more than two consecutive terms o Section 43 (b), Local Government Code: local elective officials shall not serve for more than three consecutive terms 7) NEWLY CREATED OFFICE OR OFFICE WHERE EMOLUMENTS WERE INCREASED Rule: Legislative officials are disqualified from holding an office which was created or which emoluments have been increased during the term for which he was elected. o Basis: Article VI, Section 13: disqualification of Senators and Members of the HOR o As for local elective officials, there is no express prohibition, but Section 81 of the LGC provides that an increase in compensation shall take effect only after the terms of office of those approving such increase has expired. Special disqualifications for appointive officers 8) RELATIONSHIP WITH THE APPOINTING POWER GR: Nepotic appointments are prohibited. Relationship with the appointing or recommending authority, or the chief of bureau or office, or with persons exercising immediate supervision over him, is usually a disqualification.

Page

Basis: Section 59 (1), Chapter 7, Title I, Book V of E.O. 292: prohibited relationship is up to third degree of consanguinity or affinity o Section 79, Local Government Code: No person shall be appointed in the career service of the local government if he is related within the fourth civil degree of consanguinity or affinity to the appointing or recommending authority. o Article VII, Section 13, paragraph 2 of the 1987 Constitution: Spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during the latters tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including GOCCs and their subsidiaries. Exceptions: The following are exempted from the operation of the rules on nepotism: o Persons employed in a confidential capacity o Teachers o Physicians o Members of the AFP (Section 59 (2), Chapter 7, Title I, Book V of E.O. 292) Qualification: By its nature, the rule applies only to appointive offices. o

9) PREVIOUS CANDIDACY IN AN ELECTIVE POSITION Rule: No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any government-owned or controlled corporations or in any of their subsidiaries o Basis: Article IX-B, Section 6 of the 1987 Constitution. o Section 94 (b), Local Government Code o Section 54(2), Chapter 7, Title I, Book V, EO 292 Exception: o Losing candidates in a barangay election (Section 94 (b), Local Government Code) Qualification: A Member of any Constitutional Commission must not have been a candidate for any elective position in the elections immediately preceding their appointment. o Basis: Article IX-B, Section 1 (1), Article IX-C, Section 1 (1), Article IX-D, Section 1 (1). o The disqualification applies to all appointive officers. For obvious reasons, it does not apply to an elective officer who is an incumbent by virtue of winning an election, as the latter is prohibited from holding any other office in the government. (See holding other office; Article IX-B, Section 7 of the 1987 Constitution)

Page