-

THE LAW ON PUBLIC

OFFICERS
AND ELECTION LAW
Prof. Jesusa Arellano-Aguda

b.

I. The Law on Public Officers

A. Concepts and Principles: Public Office
and Public Officers
1. Definitions
a. Mechem, Floyed, 1890 A public
office is the right, authority and
duty created and conferred by
law, by which for a given period,
either fixed by law or enduring at
the pleasure of the appointing
power, an individual is invested
with some portion of sovereign
functions of the government, to
be exercised by him for the
benefit of the public.
b. Admin Code of 1987 An officer is
a person whose duties, not being of
a clerical or manual nature, involves
the exercise of discretion in the
performance of the functions of the
government.
- When used with reference to a
person having authority to do a
particular act or perform a
particular
function
in
the
exercise of government power,
officer
includes
any
government employee, agent or
body having authority to do the
act or exercise of that function.
c. RPC, Art. 203 Any person who, by
direct provision of the law, popular
election
or
appointment
by
competent authority, shall take part
in the performance of public
functions in the Government of the
Philippine Islands, or shall perform
in said Government or in any of its
branches public duties as an
employee, agent or subordinate
official, of any rank or class, shall be
DEEMED a public officer
2. Purpose & Nature
a. Public Office, as a Public Trust
- Art. XI, Section. 1, 1987
Constitution: Public office is a
public trust. Public officers and
employees must at all times be
accountable to the people, serve
them with utmost responsibility,
integrity, loyalty, and efficiency,
act with patriotism and justice,
and lead modest lives.

c.

d.
e.

Holders regarded as public

servants
- Holders
subject
to
highest
standards of accountability and
service
Public Office, not Property
- Holder subject to removal or
suspension according to law
- Holder without vested right in
any public office
- Holders right in nature of
privilege entitled to protection
- When the dispute concerns onee
constitutional right to SOT,
public
office
is
deemed
analogous to property in a
limited sense; hence the right to
due process could rightfully be
invoked.
- Holders right personal to him.
Public Office, not a Contract
- The right of an incumbent to
office does not depend on any
contract in the sense of an
arrangement or bargain between
him and the public.
- Creates no contractual relation
between holder and the public
- Exists by virtue of some law
- Generally entitles holder to
compensation
- One
contracting
with
the
government is in no just and
proper sense an officer of the
government.
Security of Tenure in Public Office as
property for purposes of due process
Distinctions

3. Elements
- [Public office] is created by the
Constitution or by law or by
some body or agency to which
the power to create the office
has been delegated.
- It must be invested with an
authority
to
exercise
some
portion of the sovereign powers
of the State to be exercised for
public interest.
- Its powers and functions are
defined by the Constitution, or by
law,
or
through
legislative
authority.
- The duties pertaining thereto are
performed
independently,
without control of a superior
other than law
- It is continuing and permanent in
nature and not occasional or
intermittent.

4. Creation of Public Office

- Generally, an office is created by
some constitutional or statutory
provision
or
by
authority
conferred by it.
- By Congress: The creation of
public offices is primarily a
legislative function.
- By the President: As far as
bureaus, agencies, or offices in
the executive department are
concerned, the Presidents power
of control may justify him to
inactivate the functions of a
particular office, or certain laws
(like the Admin Code of 1987)
may grant him the broad
authority
to
carry
out
reorganization measures.
5. Kinds/Classifications
a. As to nature of functions
- Civil officer
- Military officer
b. As to creation
- Constitutional officer
- Statutory officer
c. As to the department of government
to which it belongs
- Legislative officer
- Executive officer
- Judicial officer
d. As to branch of government served
- National officer
- Local officer
e. As to whether exercise of discretion
is required
- Quasi-judicial officer
- Ministerial officer
f. As to compensation
- Lucrative office, office of profit,
or office coupled with an interest
- Honorary office
g. As to legality of title to office
- De jure officer
- De facto officer
B. Eligibility and Qualifications
1. Definitions
a. Eligibility the state or quality of
being legally fitted or qualified to be
chosen
- Of CONTINUING nature: must
exist
BOTH
at
the
commencement and during the
occupancy of an office
b. Eligible

having
all
the
qualifications and none of the
ineligibilities to occupy the office
c. Ineligibility

the
lack
of
qualifications prescribed by the

Constitution or applicable law for

holding public office
d. Ineligible legally or otherwise
disqualified to hold an office or to be
elected to an office
e. Qualification
- The
endowment
or
accomplishment that fits one for
office
- The act which a person, before
entering upon the performance
of his duties, is, by law, required
to do. Ex: Oath, Bond
2. Nature of Right to hold Public Office
- Not a natural right: It exists,
where it exists at all, only
because and by virtue of some
law
expressly
or
impliedly
creating and conferring it.
- Not a constitutional right: It is a
political privilege which depends
upon the favour or the people,
which favour may be coupled
with reasonable conditions for
the public good.
3. Power of Congress to Prescribe
Qualifications
- General: Congress is generally
empowered to prescribe the
qualifications for holding public
office, provided it does not
exceed its constitutional powers
or impose conditions of eligibility
inconsistent
with
the
Constitution.
- Where
the
Constitution
establishes specific eligibility
requirements for a particular
constitutional
office,
the
constitutional
criteria
are
EXCLUSIVE
unless
the
Constitution
expressly
or
impliedly gives the power to set
qualifications.
- Where the Constitution has
prescribed certain qualifications,
Congress
may
prescribe
ADDITIONAL
qualifications
unless it appears that this action
is prohibited.
- Re Disqualifications: In the
absence
of
constitutional
inhibition, Congress has the
same
right
to
provide
disqualifications.
However,
Congress
may
NOT
ADD
disqualifications
where
the
Constitution has provided them
in such a way as to indicate an
intention
that
the
disqualifications provided shall

embrace ALL that are to be

permitted.
- When
the
Constitution
has
attached a disqualification to the
holding of an office, Congress
CANNOT REMOVE it under the
power to prescribe qualifications.
4. Restrictions and Construction
- Presumption
in
favour
or
eligibility
- Rule of Liberal Construction: The
right to public office should be
strictly
construed
against
ineligibility.
- The right of a citizen to hold
office is the general rule,
ineligibility the exception.
5. General and Particular Qualifications
- The qualifications for public
office
are
CONTINUING
requirements
and
must
be
possessed not only at the time of
appointment or election or
assumption of office but during
the officers ENTIRE tenure.
- Once any of the required
qualifications is lost, his title may
be reasonably challenged.
a) Citizenship
b) Age
c) Right of Suffrage
d) Residence
e) Education
f) Ability to read and write
g) Political affiliation
h) Civil service examination
6. Disqualifications
a. General
Disqualifications

In
general, individuals who LACK any
of the qualifications prescribed by
the Constitution or by law for a
public office are ineligible or
disqualified from holding such
office.
- An appointment of an ineligible
or unqualified person is a
NULLITY.
b. Specific Disqualifications
1) Mental or physical incapacity
2) Misconduct or crime
3) Impeachment
4) Removal or suspension from
office
5) Previous tenure of office
6) Consecutive terms
7) Holding more than one office
8) Relationship
with
appointing
power
9) Office newly created or the
emoluments if which have been
increased

10) Being an elective official

11) Having been a candidate for any
elective position
12) Under the LGC (Section 94):
i.
Those sentenced by final
judgment
for
an
offense
involving moral turpitude or
for an offense punishable by 1
year or more of imprisonment,
within 2 years after serving
sentence
ii.
Those removed from office as
a result of an administrative
case
iii.
Those convicted by final
judgment for violating the
oath of allegiance to the
Republic
iv.
Those with dual citizenship
v.
Fugitive
from
justice
in
criminal or non-political cases
here or abroad
o FFJ: Not only those who
flee after conviction to
avoid punishment but also
those who, after being
charged, flee to avoid
prosecution
(Rodriguez
vs. Comelec, 1996).
vi.
Permanent residents in a
foreign country or those who
have acquired the right to
reside abroad and continue to
avail of the same right after
the effectivity of the LGC
vii.
The insane or feeble-minded
C. Acquisition of Right or Title to Office
1. Appointment

The
act
of
designation by the executive officer,
or body to whom that power has
been delegated, of the individual
who is to exercise the powers and
functions of a given office.
- Inherently belongs to the people
- Entrusted to designated elected
and appointed public officials
- Absent any contrary statutory
provision,
the
power
to
appoint
carries
with
the
power
to
remove
or
discipline.
- Generally
and
EXECUTIVE
function, whether exercised by
the executive, legislative or
judicial officers or bodies.
- Power
to
appoint
is
discretionary. Unless gravely
abused, the courts will not
attempt to control it. It cannot be
the subject of an application for a

writ of mandamus to compel the

exercise of such discretion.
BUT such power is limited to
candidates
having
the
qualifications required by the
civil service law and rules.
The choice of an appointee from
among the qualified is a political
and
administrative
decision.
However,
the
moment
the
discretionary power is exercised
AND the appointee assumed the
duties and functions of his
position,
such
appointment
CANNOT anymore be REVOKED
by the appointing authority and
appoint another, except for
cause.
The CSC has no authority to
revoke an appointment on the
ground that another person is
more qualified for a particular
position. It also has no authority
to direct the appointment of a
substitute of its choice or a
successful protestant.
[BUT] A void appointment cannot
give rise to SOT on the part of
the holder of the appointment.
The CSC is empowered to take
appropriate
action
on
all
appointments
and
personnel
actions and its power includes
the authority to recall or revoke
an
appointment
initially
approved
in
disregard
of
applicable laws.
Absolute the choice of an
appointing authority if it falls
upon an eligible person, is
conclusive
Conditional where assent or
approval by some other officer or
body is necessary to complete
the appointment.
The
appointment
becomes
COMPLETE when the last act
required of the appointing power
is performed.
Where there is no express
provision of law to the contrary,
the appointees acceptance of
the office is not necessary to
complete
the
appointment.
However, it is necessary to
enable the appointee to have full
possession,
enjoyment,
and
responsibility of an office. Such
acceptance may be express
(verbal or in writing) or implied

(entering
upon
exercise
of
duties).
- Gen Rule: An appointment to
office, once made and complete,
is not subject to reconsideration
or revocation. Revocation of an
appointment is made, if it is to be
successful,
before
the
appointment is complete.
- Exception: Where an officer is
removable
at
will
of
the
appointing power.
a. Appointment by the President
- 4 groups of officials whom
the President is authorized to
appoint:
(1) The
heads
of
executive
departments,
ambassadors,
other public ministers and
consuls, officers of the armed
forces from the rank of
colonel or naval captain, and
other
officers
whose
appointments are vested in
him in the Constitution. Other
officers regular members of
JBC,
Chairmen
and
Commissioners
of
CSC,
COMELEC, COA, members of
regional
consultative
commissions;
(2) All other officers whose
appointments
are
not
otherwise provided by law
and they refer to officers to
be appointed to lower offices
created by Congress where
the latter omits to provide for
appointment to said office, or
provides
in
an
unconstitutional way for such
appointments;
(3) Those whom the President
may be authorized by law to
appoint such as heads of
GOCCs,
undersecretaries,
heads of bureaus and offices;
and
(4) Other officers lower in rank
whose
appointments
Congress
vests
in
the
President alone.
- Only the first group are
appointed with the consent or
confirmation
of
the
Commission
on
Appointments.
Congress
cannot,
by
law,
require
confirmation of appointments of
other officers.

Regular those made while

Congress is in session. Actually
mere nominations. Permanent in
nature.
Ad interim those made while
Congress is not in session or
during its recess (voluntary or
compulsory)
o Art. VII, Sec. 16
o in the meantime
o Ceases to be effective
upon:
(a) Rejection by the Comm.,
or
(b) If not acted upon at the
adjournment of the next
session,
regular
or
special, of Congress
o May
be
recalled
or
revoked by the President
before confirmation
Permanent those which last
until they are lawfully terminated
Temporary or acting those
which last until a permanent
appointment is issued
o Art. VII, Sec. 15 two
months
immediately
before
the
next
presidential elections and
up to the end of his term;
when continued vacancies
will prejudice service or
endanger public safety
o Has no fixed tenure of
office; his employment
can be terminated at the
pleasure of the appointing
power
o Where
a
non-eligible
holds
a
temporary
appointment,
his
replacement by another
non-eligible
is
not
prohibited. BUT such an
appointment cannot be
used by the appointing
authority as a device or
justification in order to
evade or avoid the SOT
principle.
Designation

the
mere
imposition of new or additional
duties upon an officer to be
performed by him in a special
manner while he performs the
function of his permanent office.
Steps
in
the
Appointing
Process
(when
subject
to
confirmation):

(1) Nomination the exclusive

prerogative of the President
upon which no limitation may
be imposed by Congress
(except
concurrence
by
Comm. On App, and limited
legislative power to prescribe
qualifications)
(2) Confirmation a check on
executive
power
of
appointment. There is no
appointment yet in the strict
sense until it is confirmed.
Thus, the appointment is a
joint act of the President
and the Comm. On App.
(3) Issuance of commission a
written authority from a
competent source given to
the officer as his warrant for
the exercise of the powers
and duties of the office to
which he is commissioned.
b. Appointment under Civil Service
Qualification Standards
- Civil
Service
System

embraces
ALL
branches,
subdivisions,
instrumentalities,
and agencies of the Government,
including GOCCs with original
charter
- Classification of positions
(1) Career entrance based on
merit and fitness to be
determined
as
far
as
practicable by competitive
examination, or based on
highly
technical
qualifications;
security
of
tenure;
opportunity
for
advancement
to
higher
career positions
(a) Open career positions
(b) Closed career positions
(c) Positions in the Career
Executive Service
(d) Career officers other than
those in the CES who are
appointed
by
the
President
(e) Commissioned
officers
and enlisted men of the
armed forces
(f) Personnel of GOCCs
(g) Permanent laborers
(2) Non-Career entrance on
bases other than those of the
usual test of merit and fitness
utilized
for
the
career
service; tenure which is
limited to a period specified

by
law,
or
which
is
coterminous with that of the
appointing
authority
or
subject to his pleasure, or
which is limited to the
duration of a particular
project for which purpose
employment was made.
(a) Elective officials and their
personal staff
(b) Department heads and
other officials of cabinet
rank
(c) Chairmen and members
of
commissions
and
boards with fixed terms of
office
(d) Contractual personnel
employment
in
the
government
is
in
accordance with a special
contract to undertake a
specific work or job
requiring
special
or
technical
skills
not
available in the employing
agency,
to
be
accomplished within a
specific period, which in
no case shall exceed 1
year and performs with a
minimum of direction and
supervision from hiring
agency
(e) Emergency and seasonal
personnel
(3) *Casual employment is not
permanent but occasional,
unpredictable, sporadic and
brief in nature
Constitutional classification
(1) Competitive appointments
made according to merit and
fitness to be determined as
far
as
practicable
by
competitive examinations
(2) Non-competitive

appointments do not take into

account merit and fitness as
determined by competitive
exams.
(a) Policy-determining

with
the
power
of
formulating policies for
the government
(b) Primarily confidential
more
than
ordinary
confidence in his aptitude
but bears primarily a
close
intimacy
which
insures
freedom
of

intercourse
without
embarrassment
or
freedom from misgiving of
betrayal of personal trust
on confidential matters of
state
(c) Highly
technical

possession of skills or
training in the supreme or
superior degree
Piero vs. Hechanova
What
determines
ultimately whether an
administrative position is
PC, PD, HT is the nature
of the functions attached
to the position. Executive
pronouncements can be
no more than initial
determinations that are
not conclusive in case of
conflict.
The Constitution does
NOT
exempt
these
positions
from
the
operation of the principle
laid down in Art. IX-B,
Section 2(3) that no
officer or employee in the
CS shall be removed or
suspended
except
for
cause provided by law
nor from the requirement
that opportunities thereto
shall
be
made
only
according to merit and
fitness
- Gen. Rule: Selection of any
appointee to any government
position shall be made only
according to merit and fitness to
be
determined
as
far
as
practicable
by
competitive
examination
o Competitive:
given
under
an
objective
standard of grading; must
conform
to
measures
sufficiently objective to be
capable
of
being
challenged and reviewed,
when necessary, by other
examiners of equal ability
2. De Facto Officership
a. Definitions
De Facto Officer one who has the
reputation of being the officer he
assumed to be and yet is not a good
officer in point of law
De Jure Officer one who has
lawful right to the office in all

respects, but who has either been

ousted from it, or who has never
actually taken possession of it.
Usurper or intruder one who
takes possession of the office and
undertakes to act officially without
any color of right or authority, either
actual or apparent. He is not an
officer at all for any purpose.
b. Elements
(1) There must be a de jure office
(2) There must be a color of right or
general acquiescence by the
public
(3) There must be actual physical
possession of the office in good
faith
3. Remedy to Question Title
4. By Election
D. Powers, Duties, and Responsibilities of
Public Officers
1. Powers & Duties
a. Source of Power and Authority
b. Construction of Power and Duties
c. Delegation of Power
d. Scope of Power and Authority
e. Specific Duties
f. Norms of Conduct
2. Rights and Privileges
a. Right to Office
b. Security of Tenure
- The moment the appointee
assumes a position in the CS
under a completed appointment
approved by the CSC, he
acquires a legal, not merely
equitable right, protected not
only by statute but also by the
Constitution, and cannot be
taken away, either by revocation
or removal except for cause, and
with previous notice and hearing.
c. Right to Compensation
d. Rights under the Civil Service Law
& the Rules under the Admin Code
of 1987
e. Personnel Actions any action
denoting the movement or progress
of personnel in the civil service
- All personnel actions shall be in
accordance
with
the
rules,
regulations
and
standards
promulgated by the CSC.
i.
Promotion the advancement
from one position to another with
an increase in duties and
responsibilities as authorized by
law and usually accompanied by
an increase in pay

ii.

Transfer a movement from one

position to another which is of
equivalent rank, level, or salary
without
break
in
service
involving the issuance of an
appointment
iii.
Detail the movement of an
employee from one department
or agency to another without the
issuance of an appointment and
allowed only for a limited period
(if professional, technical and
scientific positions)
iv.
Reassignment an employee
may be reassigned from one
organizational unit to another in
the same department BUT such
shall not involve a reduction in
rank, status or salary
- Otherwise, such reassignment
would,
in
effect,
constitute
constructive removal and violate
his right to SOT.
v.
Reinstatement the restoration
to a state or condition from
which one has been removed or
separated
vi.
Reemployment
Names of
persons appointed permanently
but later separated from service
due to a reduction in force
and/or reorganization shall be
entered in a LIST from which
selection for reemployment shall
be made
f. Right to Self-Organization
g. Other Rights (Leaves of Absences,
GSIS Retirement, Insurance)
3. Liabilities
a. In General RA 6713
b. Administrative Liability
c. Civil Liability
d. Criminal Liability
4. Disabilities & Inhibitions
a. Under the Constitution
b. Under existing laws
E. Termination of Official Relations
1. Expiration of Term
2. Retirement
3. Death or Permanent Disability
4. Resignation
5. Acceptance of Incompatible Office
6. Abandonment of Office
7. Prescription of Right to Office
8. Removal
9. Impeachment
10. Abolition of Office
11. Termination through Reorganization
12. Conviction of Crime
13. Recall

14. Disciplinary Measures