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DIMAANDAL

v. COA (not de facto because no proper appointing authority so no salary for APT)

SUMMARY - Designation v. Appointment. Petitioner not entitled to the difference in the salary and allowance
between the position of Supply Officer III and APT since he was not appointed by the proper appointing authority,
and was in fact only designated, which does not entitle a person to the salary attached to the position. He was also
not considered as a de facto officer.


facts of the case


Officer involved: ZD (Supply Officer III) was designated Acting Asst Provincial Treasurer for Administration
(APT) by the Gov. Mayo of Batangas. ZD filed a claim for the difference in salary and Representation and
Transportation Allowance (RATA) of APT and Supply Officer III for the year 1993 in the total amount of P61,
308.00

Provincial Auditor: Disallowed P52, 908; only P8,400 allowed, corresponding to the difference in the
allowances attached to the designation and position, because the power to fill such position rests on the SoF, and
that the designation is temporary in naturedoes not amount to issuance of an appointment. The Gov wrote to the
Auditor requesting reconsideration, but was denied. ZD appealed to the COA.
COA: Whole amount should be disallowed for being devoid of any legal basis. ZD merely designatednot
entitled to receive additional salary; not entitled to RATA either since Gov not the duly competent authority to
appoint; ZD appointed as APT by SoF only on July 8, 1994.

ZD: (1) de facto officers are entitled to salary for services actually rendered (Menzon v Petilla);
(2) to disallow his compensation would be tantamount to deprivation of property without due process and
impairment of obligation of contracts.

COA: ZD only designatednature of designation and the absence of authority of the Gov to authorize the
payment of addl salary and RATA without the appropriate resln from the SPla does not make the ruling on de facto
officers applicable in this case.

issue
WoN an EE who is designated in an acting capacity is entitled to the difference in salary between his regular
position and the higher position to which he is designated. NO.

ratio
Provincial Governor not the proper appointing officer
Applicable law: Sec. 471 LGC1. The appointing officer is authorized by law to order the payment of any
compensation to any govt officer/ee designated/appointed to fill such vacant position, as provided under Sec, 2077
RAC2. The provis do not authorize the Provincial Gov to appoint nor even designate one temporarily in cases of
temporary absence/disability/vacancy in a provincial officepower resides in the Pres/SoF.
ZDs designation defective = confers no right to claim the difference in the salaries and allowances attached to
the position occupied by him.

ZD was designated, not appointed
Appointment selection by the proper authority of an individual who is to exercise the powers and functions
of a given office.

Sec. 471. Assistant Treasurers. - (a) An assistant treasurer may be appointed by the Secretary of Finance from a list of at least three (3)
ranking eligible recommendees of the governor or mayor, subject to civil service law, rules and regulations.
2 Compensation for person appointed to temporary service.
2 Compensation for person appointed to temporary service.
xxx
xxx
xxx
In case of the temporary absence or disability of a provincial officer or in case of a vacancy in a provincial office, the President of the
Philippines or officer having the power to fill such position may, in his discretion, order the payment of compensation, or additional
compensation, to any Government officer or employee designated or appointed temporarily to fill the place, but the total compensation
paid shall not exceed the salary authorized by law for the position filled.
1

Designation connotes an imposition of addnl duties, usually by law, upon a person already in the public
service by virtue of an earlier appointment; mere imposition of new/addnl duties to be performed in a special
manner; does not entail payment of addnl benefits/grant upon the person so designated the rt to claim the salary
attached to the position.
= Designation does not entitle the officer designated to receive the salary of the position, for the legal basis of
an ees rt to claim such is a duly issued and approved appointment to the position.
Also, since his designation was without color of authority, the rt to the salary/allowance never existedno
violation of any consti rt nor an impairment of the obligs of contracts clause.

ZD likewise not a de facto officer
De facto officer one who derives his appointment from one having colorable authority to appoint, and whose
appointment is valid on its face; one who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular/informal, so that the
incumbent is not a volunteer.
Menzon does not apply. In that case, what was extended was an appointment to the vacant position of VG by
the SILG; in this case, ZD was designated. Nor is the ruling in Cui v Ortiz applicable in this case (appointee by Mayor
considered a de facto officer pending approval of Pres of the appointment).

The appointment signed by the USoF does not retroact to ZDs assumption of office, as confirmed by the
express phraseology of the appointment itself: Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di
aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority.



MENZON v. PETILLA (de facto so entitled to compensation as VG)

SUMMARY - Petitioner was appointed by DILG Sec. as acting VG because the respondent VG was appointed as
Gov pending the resolution of the electoral contest in the province of Leyte. However the Sanggunian enacted a
resolution which invalidated his appointment because the old LGC did not prescribe a mode for succession in case
of temporary vacancy of VG position. Respondent also asked that the salary given to Menzon be reimbursed to the
province. The court held that there was a vacancy in the office of VG and recognized the authority of the Sec of DILG
as alter ego of the president to appoint petitioner. He is also entitled to the compensation authorized for VG
because he was a de facto officer.

Doctrine: (Not explicitly stated in the case) A de facto officer was appointed under a colorable authority,
possessing the office and exercising its functions. Based on the principles of justice and equity, a de facto officer
who performed such functions is entitled to compensation.


facts of the case
During the 1988 gubernatorial elections in Leyte, no governor was proclaimed. As a result, DILG Sec Santos
designated Petilla who was the vice gov (VG) elect as Acting Governor (AG). He also designated Menzon, who
was a senior member of the Sangguniang Panlalawigan as acting VG.
However the Prov. Administrator Quintero inquired into the legality of Menzons designation as VG. USec
Rubillar then replied that since BP 337 (old LGC) had no provision relating to succession of VG in case of temporary
vacancy, appointment of Menzon is not necessary because Petilla can concurrently assume the functions of VG and
Gov. As a result of this opinion, the Sanggunian adopted a resolution which invalidated Menzons
appointment.
Petitioner then sought a clarification to USec Rubillar, who reversed his earlier opinion. He said that the
temporary designation of Menzon as VG is merely an imposition of additional duties. The necessity of such depends
on the discretion of the appointing authority. Menzon then asked Petilla and the Sanggunian to revoke the
resolution but his requests were not heeded.
From 1988 to 1990 (when Gov. Adelina Larrazabal was proclaimed), petitioner was paid his salary as acting
VG. Petilla then asked Larrazabal to demand that petitioner reimburse the province for the salary that was
wrongfully paid to him.
Menzon filed a petition for certiorari and mandamus but it was denied by the court. This decision was his MR.

Petillas arguments: there is no vacancy in the office of VG which requires the appointment of the Menzon. The
proper appointing authority is not the Secretary of Local Govt but the Sangguniang Panlalawigan. BP 337 did not
provide for succession in case of temporary vacancy of VG therefore it is an internal matter to be resolved by the
Sanggunian.


issue
1. WON there was a vacancy? YES
2. WON Sec. of Local Govt has authority to make temporary appointments? YES
3. (topic) WON petitioner was entitled to the emoluments for his services rendered as designated acting VG?
YES under the principle of justice and equity and as a de facto officer

ratio
On the issue of vacancy
Law on Public Officers states that there is vacancy when there is no person lawfully authorized to assume
and exercise at present the duties of the office. No vacancy exists when the office is occupied by a legally
qualified incumbent. The gubernatorial and vice gubernatorial offices require full time occupants to discharge their
functions. When VG elect Petilla was designated as AG, his office was left vacant. There is no showing that Petilla
simultaneously exercised AG and VG functions. The vacancy was also for an extended period of time (2 years)
which necessitated the designation of temporary officers.


On the issue of the appointing authority
The LGC (BP 337) is silent as to the mode of succession in case of temporary vacancy in the office of VG.
However the court applied other provisions of law such as the Revised Admin Code and CA 588 which empowers
the president to make temporary appointments in certain public offices in cases of vacancy. Note that this applies
only for APPOINTIVE offices. However the court recognized the best interest of public service, noting that if the
vacancy in VG position was sustained, it could result in disruptions and delay in the delivery of basic services. What
the LGC provides in Sec. 49 is the succession of SP member with the highest number of votes as VG in cases of
PERMANENT vacancy. The court applied this section for temporary vacancy in the office of VG, there being no
conflict in law.

On the issue of his entitlement to compensation
Given that his appointment was valid, petitioner is entitled to the salary of VG. However the amount is limited
to that authorized by law for that office, applying the rule against double compensation. (note that he was a sanggu
member and AVG)
(TOPIC) Assuming arguendo that his appointment is not valid, he is considered as a DE FACTO OFFICER who is
entitled to compensation. His assumption to office was done with a color of validity and undertaken an alter ego of
the President (DILG Sec). He also took his oath of office. The respondents also acknowledged the validity of his
appointment prior to the questioned resolution. He also exercised duties attached to his office and was recognized
as such by his constituents. Under the principles of justice and equity, he must be paid compensation for services
he actually rendered as acting VG.

MALALUAN v. COMELEC (de facto mayor after election protest even if subsequently found that such protest
unfounded therefore not liable to pay damages in form of salaries of other candidate)
SUMMARY - Evangelista was proclaimed Mayor of Municipality of Kidapawan, but upon Malaluans filing of an election protest,
RTC ruled in Ms favor and granted execution on appeal pursuant to which Malaluan assumed office. By the time COMELEC had
reversed, proclaiming Evangelista the winner, the term for the position had expired rendering the issue moot and academic.
However, Malaluan brought this petition to assail the COMELECs award of actual damages in favor of Evangelista in the form
of salaries and emoluments the latter should have allegedly received while Malaluan occupied the office pursuant to the lower
courts decision.

Held: Notwithstanding his subsequent ouster as a result of an election protest, an elective official who has been proclaimed by
the COMELEC as winner in an electoral contest and who assumed office and entered into the performance of the duties of that
office, is entitled to the compensation, emoluments and allowances legally provided for that position. While actual or
compensatory damages may be granted in election cases, provided the basis are among those provided by law (e.g.
Civil Code provisions on damages, other specific provision of law authorizing money claims in election protests),
Malaluan was not in breach of contract, quasi-contract, nor guilty of tortuous act nor crime to make him liable for
actual damages. Neither has Evangelista been able to point out a provision of law authorizing a money claim for
election protest expenses against the losing party. Malaluan was not a usurper (one who undertakes to act officially
without any color of right); he exercised the duties of an elective office under color of election thereto.


facts:

Luis Malaluan and Joseph Evangelista were both mayoralty candidates in the Municipality of Kidapawan, North Cotabato, in
the Synchronized National and Local Elections held on May 11, 1992

Evangelista was proclaimed duly elected Mayor with a winning margin of 706 votes.

Malaluan filed an election protest with the RTC contesting 64 out of the total 181 precincts of the municipality.
RTC declared Malaluan as duly elected mayor of Kidapawan, with a plurality of 154 votes, and unprecedentedly
found Evangelista liable not only for Malaluans protest expenses but also for moral and exemplary damages, and
attorneys fees.

Evangelista appealed to COMELEC.



Although RTC granted Malaluans motion for execution of appeal upon his posting of a bond, by virtue of which
Malaluan assumed office, the COMELECs First Division later ordered Malaluan to vacate, having found Evangelista to
be duly elected Municipal Mayor. COMELEC en banc affirmed. Malaluan filed this petition on May 31, 1995.

The term of office of local officials elected in May, 1992, expired on June 30, 1995, thus subject petition has become
moot and academic insofar as it concerns Malaluans right to the mayoralty seat. Expiration of the term of office
contested in the election protest renders the latter moot and academic, and any appeal based thereon is dismissible,
unless rendering a decision on the merits has practical value.

While the issue regarding the right to the elective post no longer exists, the question as to damages remains ripe for
adjudication. COMELEC found Malaluan liable for attorneys fees, actual expenses for Xerox copies, and unearned salary
and other emoluments from March 1994 to April 1995, denominated en masse as actual damages, default in payment by
Malaluan will result in collecting said amount from the bond he posted. Malaluan contests this award on the ground that said
damages have not been alleged and proved during trial.

COMELEC decision:

The election protest filed by Malaluan was clearly unfounded, and in bad faith, without sufficient cause, filed for the
sole purpose of molesting Evangelista, who as a result incurred expenses.

The lower court erroneously ruled against clearly valid ballots.

The lower court likewise executed judgment pending appeal, in contravention of Sec. 2, Rule 39 of the Rules of Court.
There was no good and special reason to justify the execution of judgment pending appeal considering Evangelistas
winning margin was 149 votes, while Malaluans was 154.

Evangelista may claim attorneys fees and expenses of litigation as actual damages because the electoral protest was
clearly unfounded. Evangelista was furthermore ousted not by final judgment but by order of execution pending
appeal which was groundless and issued with grave abuse of discretion. Because Malaluan occupied the position in an
illegal manner as usurper, not having been elected but merely installed through a baseless court order, he has no right
to the salaries of the office.


Issue:
WON Evangelista is entitled to the salaries and emoluments from March 1994 to April 1995.


Held: Petition granted. COMELEC Award of actual damages to Evangelista is declared null and void for having been issued in
grave abuse of discretion and in excess of jurisdiction.


Ratio:

Actual or compensatory damages may be granted in election cases, provided the basis are among those provided by
law (e.g. Civil Code provisions on damages, other specific provision of law authorizing money claims in election
protests)

Under the Omnibus Election Code, actual or compensatory damages may be granted in all election contests or quo
warranto proceedings in accordance with law. The COMELEC Rules of Procedure provides that the Court may
adjudicate damages and attorneys fees in election contests provided only that: a) the award is just, b) it is borne out
by the pleadings and evidence, and c) it complies with Civil Code provisions on damages.

Under the Civil Code, actual or compensatory damages are appropriate only in breaches of obligations in cases of
contracts and quasi-contracts and on occasion of crimes and quasi-delicts where the defendant may be held liable for
all damages the proximate cause of which is the act or omission complained of. The monetary claim of a party in an
election case must hinge on either a contract, quasi-contract, or a tortuous act or omission or a crime, to
effectively recover actual or compensatory damages. Absent the above, the claimant must be able to point out
a specific provision of law authorizing a money claim for the election protest expenses against the losing
party (e.g. Civil Code provisions on human relations).

In this case, part of the damages claimed is the P169, 456 constituting salary and other emoluments from March 1994
to April 1995 that would have accrued to Evangelista had there not been an execution of the trial court decision
pending appeal therefrom in the COMELEC.

DOCTRINE: notwithstanding his subsequent ouster as a result of an election protest, an elective official who has been
proclaimed by the COMELEC as winner in an electoral contest and who assumed office and entered into the
performance of the duties of that office, is entitled to the compensation, emoluments and allowances legally provided
for that position.
! Rodriguez v. Tan: The emolument must go to the person who rendered the service unless the contrary is provided. The
right of the persons elected to compensation during their incumbency has always been recognized.
J. Padilla in his concurring opinion:
o GR: ousted elective official is not obliged to reimburse the emoluments of office that he had received before his
ouster.
o E: liability for damages in case he would be found responsible for any unlawful or tortuous acts in relation to his
proclamation, in which case salary, fees and emoluments received by him during his illegal incumbency would be a
proper item of recoverable damage.

As applied: Malaluan was not in breach of contract, quasi-contract, nor guilty of tortuous act nor crime to make him
liable for actual damages. Neither has Evangelista been able to point out a provision of law authorizing a money claim
for election protest expenses against the losing party.
Even if COMELECs appreciation of the contested yielded different results from that of the trial court, this difference in
results cannot, without proof, be the basis for a conclusion of malicious intent. Any error of the trial court is its
own, absent proof that the suit is clearly unfounded.
! The trial court was justified in issuing an order pending appeal:
o Garcia v. de Jesus: Sec. 2, Rule 39 of the ROC allowing RTCs to order executions pending appeal upon good
reasons stated in a special order may be made to apply by analogy or suppletorily to election contests decided
by them. Malaluan had even filed a bond as required by the ROC.
o As much recognition should be given to the value of the decision of a judicial body as basis for the right to assume
office, as that given by law to a proclamation by the Board of Canvassers. The Trial Court, in appreciating the
contested ballots, relied on NBI findings that Evangelista did not rebut. Trial court enjoys presumption of regularity
in the performance of its official duty.
o The grant of immediate execution is urgent, otherwise there would be a political vacuum in the Municipality
of Kidapawan. Besides, Malaluans bond could cover any damages suffered by an aggrieved party.
o [DOCTRINE-RELATED] The award of salaries and other emoluments lacks legal basis. Malaluan was not a
usurper (one who undertakes to act officially without any color of right); he exercised the duties of an
elective office under color of election thereto. It doesnt matter whether it was the trial court and not

COMELEC that declared Malaluan the winner, because both, at different stages of the electoral process, have
the power to so proclaim winners in electoral contests. Malaluan was a de facto officer who, in good faith,
was in possession of the office and had discharged the duties pertaining thereto, and is thus legally entitled
to the emoluments of the office.


Section 259 of the Omnibus Election Code only provides for the granting in election cases of actual and compensatory damages
in accordance with law. The victorious party in an election case cannot be indemnified for expenses which he has incurred in
an electoral contest in the absence of a wrongful act or omission or breach of obligation clearly attributable to the losing party.
Evidently, if any damage had been suffered by private respondent due to the execution of judgment pending appeal, that
damage may be said to be equivalent to damnum absque injuria, which is, damage without injury, or damage or injury inflicted
without injustice, or loss or damage without violation of a legal right, or a wrong done to a man for which the law provides no
remedy.

FLORES v. DRILON (de facto officer so his acts as SBMA official arent necessarily null and
void he may be considered as a de facto officer)

SUMMARY - Sec13(d) of the Bases Conversion and Development Act mandates the President to appoint the Mayor
of Olongapo City as Chairman of the Board as well as CEO of the SBMA for one year from the laws effectivity. The
Court ruled such provision unconstitutional for:
1) Violating the prohibition under Sec7, Article IX-B re appointment of elective officials to any other
government post
2)Depriving the President of the power to choose who he should appoint


facts of the case

Parties involved

Petitioners: taxpayers and employees of the US Facility at Subic Zambales and Officers and Members of the Filipino
Civilian Employees Asociation
Respondents: Franklin Drilon (Executive Secretary) and Richard Gordon in his capacity as Mayor of Olongapo City
and designated Chairman and CEO of the Subic Authority

Nature of petition:
Special Civil Action of Prohibition filed in the Supreme Court challenging the constitutionality of Section 13(d) of
RA 7227
Subject Law:
Section 13(d) of RA 7227 or the Bases Conversion and Development Act of 1992, more specifically the part of the
provision which says:

..Provided, however, That for the 1st year of its operations from the effectivity of this Act, the mayor of the
City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority

Grounds for challenging:
1) Infringes on Sec. 7, 1st paragraph of Arti. IX-B of the Constitution, which states
no elective official shall be eligible for appointment or designation in any capacity to any public office or
position during his tenure
- Why? Because the City Mayor of Olongapo is an elective official and the subject office are public offices
2) Infringes on Sec.16, Art. VII of the Constitution which states
that the 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 appoint
- Why? Because it was Congress through said law and not the President who appointed Dick
3) It violates Sec. 261, par(g) of the OEC which prohibits the appointment of any public officer within the
prohibited 45-day period prior to the May 11 92 elections unless permitted by Comelec.
issue
Is the said provision constitutional? NO

ratio
1) Based on Section 7 (1) Article IX-B of the Constitution
No elective official shall be eligible for appointment or designation in any capacity to any public office or
position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no appointive official hall hold
any other office or employment in the Government or any subdivision, agency or instrumentality thereof,
including GOCCs or subsidiaries
- Section 7 expresses the policy against the concentration of several public positions in one person, so
that a public officer or employee may serve full-time with dedication and thus be efficient in the
delivery of public services. Particularly, the 1st paragraphs purpose is to prevent a situation where a
local elective official will work for his appointment in an executive position in government, and thus
neglect his constituents

It is clear that Section 13(d) of the Bases Conversion and Devt Act (where President is directed to
appoint Mayor of Olongapo to other government posts) is precisely what Section, Art. X-B seeks to
prevent.


Respondents: Section 94 of the LGC permits the appointment of an elective official to another post if so allowed by
law or by the primary functions of his office
- According to the SC, Section 94 is not determinative of the constitutionality of Saec(d) of RA 7227. No
legislative act can prevail over the fundamental law of the land. Moreover, the constitutionality of
Section 94 is not the issue here.
- Even if Section 94 allows the appointment of an elective official to another post, it ignores the clear-cut
difference in the wording of the 2 paragraphs of Sec 7, Article IX-B of the Constitution
o While the 2nd paragraph authorize the holding of multiple offices by an appointive official
when allowed by law or by the primary function of his position;
o The 1st paragraph is more stringent by not providing to the exception to the rule against
appointment or designation of an elective save for exceptions (President as head of economic
and planning agency; VP a member of any cabinet and; member of Congre who may be
appointed ex officio member of the JBC)
- Such a distinction between the 1st and 2nd paragraph wasnt accidental and not without reason. While
the ConCom recognized that in some instances, a law should allow an appointive official to hold other
positions, the stringent prohibition re elective official was put in to avoid the old practice of Marcos
having a free hand in his decree-making power by nullifying the vote of any elective official

Respondents: SBMA posts are merely ex officio to the position of Mayor of Olongapo, hence an excepted
circumstance. According to Civil Liberties Union v Exec Sec, the prohibition against the holding of any other office
or employment by the President, VP, Mems of Cainet et al during their tenure under ec. 13, Article VII of the
Contitution does not comprehend additional duties and functions required by the primary functions of the
officials concerned, who are to perform them in an ex officio capacity as provided by law, without receiving
any additional compensation therefor
- SC said that Congress didnt intend to make the SBMA posts as ex officio or automatically attached to
the Office of the City Mayor of Olongapo City without need of appointment.
- The phrase shall be appointed unquestionably shows the intent to make the SBMS posts appointive
and not merely adjunt to the post of Mayor of Olongapo City. Hd it been the intent to make it ex officio,
then Congress shouldve avoided the word appointed and just used ex officio
- Even in the Senate deliberations, the Senators were fully aware that Sec.13(d) of RA 7227 may
contravene the Constitution. They couldnt have been concerned with that if they considered the SBMA
posts as ex officio

Respondents: If no elective official may be appointed or designated to another post, then ection 8 Article IX-B of
the Constitution (which allows an elective official to receive double compensation) would be useless
- Argument is non sequitur since Section 8 does not affect the constitutionality of the subject provision.
In any case, an elective official like the VP may received additional compensation if he is appointed to a
cabinet post under Art. VIII, Section 3

2) Based on Sec. 16, Article VII of the Constitution
- Appointment is the designation of a person, by the person or persons having authority therefor, to
discharge the duties of some office or trust
- Considering that appointment calls for a selection or designation, the appointing power necessarily
exercises a discretion. It is intrinsically an executive act involving the exercise of discretion.
- Hence, when Congress clothes the President with the power to appoint an officer, it cannot at the same
time limit the choice of the President to only one candidate. The conferment necessarily carries with it
the discretion of whom to appoint. Thus, when the qualifications prescribed by Congress can only be
met by one individual, such enactment effectively eliminates the discretion of the appointing power to
choose.

This is what happened to the case at bar. While Congress gave the president the power to appoint the
CEO and Chairman of the SBMa for the 1st year of opeations, the provision limit the appointing
authority to one eligible, i.e. the incumbent Mayor of Olongapo.
Sure, the qualifications are limited to the 1st year of the operations, but Congress in this case still
abused it authority in prescribing qualifications whre only one, and no other one, can qualify.


3) What can an elective official do then?
- The ineligibility of an elective o for appointment remains all throughout his tenure or during his
incumbency. He may however resign first from his elective post to cast off the constitutional
disqualification before he may be considered fir for appointment.
- This is why in the constitutional delibs, Davide recommended the use of the term tenure, not term, so
as to give an elective official the choice to resign to be able to qualify for appointment.
- In this case, where Dick as elective official, was appointed to other govt posts, he does not
automatically forfeit his elective office nor remove his Constitutionally imposed ineligibility. On
the contrary, since an incumbent elective official is not eligible to the appointive position, his
appointment or designation thereto cannot be valid in view of hi disqualification or lack of
eligibility.
- This general prohibition is different from that in Section 13, Article VI which provides that no Senator
or HOR Member may hold any other office or employment in the Government during his term without
forfeiting his seat.
o The difference between the two provisions is important in the sense that incumbent national
legislator lose their elective posts only after they have been appointed to another govl office,
while other incumbent elective officials must 1st resign their posts before they can be
appointed (thus running the risk of losing the elective post as well as not being
appointed to the other post)

4) What happens to Dick?
- Applying it to this case, Gordon as incumbent elective official, is ineligible to be appointed to the
position of Chairman and CEO of SBMA. His appointment contravenes the Constitution cannot be
sustained. He however remains Mayor of Olongapo City
- His acts as SBMA official arent necessarily n & v. he may be considered as a de facto officer
o one whose acts, thought not those of a lawful officer, the law, upon principle of policy and
justice, will hold valid so far as they involve the interest of the public and third persons, where
the duties of the office were exercised
- Thus, conforming to Civil Liberties Union v Executive Secretary, any and all per diems, allowances and
other emoluments which may have been received by the dick pursuant to his appointment may be
retained by him.

10

TORRES v. RIBO (not de facto officers because no basis of appointment to Board of


Canvassers therefore the meeting they were in is void)
SUMMARY - Board of canvassers tallied elections votes with two members represented by other people. The
validity of this canvassing was assailed for being ultra vires and without legal effect. Court held that the two
representatives did not fall under the definition of a de facto officer. As a result of such finding, the assailed
canvassing of votes produces no legal effect.

Impt. defn -- De facto officer:

One who has the reputation of being the officer he assumed to be, and the reputation of being the officer he
assumes to be, and yet is not a good officer in point of law. He must have acted as an officer for such length of time,
under color of title and under such circumstances of reputation or acquiescence by the public and public
authorities, as to afford a presumption of appointment or election, and induce people, without inquiry, and relying
on the supposition that he is the officer he assumes to be, to submit to or invoke his action.


facts of the case
Plaintiff Bernardo Torres and respondents Ribo and Balderian were opposing candidates for provincial
governor of Leyte, the election for which took place on November 11, 1947. Pertinently, three members
(respondent Ribo and two unnamed members of the provincial board) of the provincial board of canvassers were
disqualified because they were, themselves, candidates in the said elections3. In lieu of their disqualification, the
COMELEC appointed the division superintendent of schools, the district engineer, and the district health officer to
replace them4. The notice for such replacement was sent through telegram on November 21 and arrived in
Tacloban, Leyte the very next day.

The dispute in this case stems from the fact that the division superintendent of schools and the district
engineer were on the west coast of the province when the telegram arrived. As an effect, they were not aware of
their appointment as members of the canvassing board until their return to Tacloban on the 24th. During the period
of time between the arrival of the telegram appointing them and their return to Tacloban (November 22 to 23), the
canvassing board held a canvassing meeting on November 22. In this meeting, wherein Mamerto Ribo was
declared as Governor-elect, Vicente Tizon and Evaristo Pascual sat as the representatives of the aforementioned
absentees. On November 24, the board of canvassers again held a meeting wherein a new canvass of the votes was
made that produced the same results; Ribo as governor-elect.

The issues presented in this case turn upon which date the period for filing an election protest should be
reckoned: November 22 (when the absentees were represented by Tizon and Pascual) and November 24 (when
they were actually present). Note that although two canvasses were conducted, both produced the same result.

CFI rulings

Judge Victoriano = Tizon and Pascual are not lawful members of the board of canvassers and, as such, the
November 22 canvassing is of no legal effect

Judge Piccio (upon the filing of an MR) = reversed Judge Victoriano; It is unreasonable to sustain the argument
that the District Engineer and the Division Superintendent of Schools could not delegate their prerogatives. The
representatives are competent and qualified persons.

**interestingly, no evidence on records shows how, why, or upon whose suggestion Tizon and Pascual represented
the absent members of the canvassing board.

issue


3
4

Pursuant to Sec. 158 of the Revised Election Code


Pursuant to Sec. 159 of the Revised Election Code

11

WON Tizon and Pascual could represent the Division Engineer and Division Superintendent of Schools as de facto
members NO

When should the period for filing election protests be reckoned NOVEMBER 24


ratio

Main issue

Pascual and Tizon are not de facto officers. A de facto officer is defined as follows:

One who has the reputation of being the officer he assumed to be, and the reputation of being the officer he assumes to be, and yet is
not a good officer in point of law. He must have acted as an officer for such length of time, under color of title and under such
circumstances of reputation or acquiescence by the public and public authorities, as to afford a presumption of appointment or election,
and induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his
action.


As applied, Tizon and pascual do not possess any of these qualifications. They were without appointment,
commission, or color of title to their position. Neither was there acquiescence to their assumption of such positions
on either a private or public level. Being that their membership in the board of canvassers was legally infirm, then
the board only had three lawful members during the November 22 meeting. Although the REC does not provide
the exact member required for the provincial board of canvassers to conduct its duties, the Court held
(quite arbitrarily, by their own admission) that there should at least be a quorum. In this case, the quorum
would be 4which the board of canvassers failed to meet for the November 22 meeting. Hence, the mentioned
meeting is without legal effect.

Other issues

The appointment of a substitute member is personal and restricted and his powers must be
performed directly and in person by the appointee. Expresio unius est exclusion alterius. According to the
Court, Sec. 159 of the Revised Election Code (REC) specifically appoints certain government officials to the board of
canvassers incase of disqualification among its default members. Hence, not even the COMELEC possesses any
discretion over the selection of who were to replace Ribo and the two other members of the provincial board.

An officer to whom a discretion is entrusted can not delegate it to another. According to the Court, the
board of canvassers exercises quasi-judicial functions. An example of such quasi-judicial function would be the
determination of whether the papers transmitted to them are genuine election returns signed by the proper
officers. In fact, occasion to exercise the canvassing boards quasi-judicial functions arose when the election
returns from four municipalities were incomplete or entirely missing. In deciding the course of action that the
canvassers took to address this discrepancy, a vote was taken wherein Tizon and Pascual voted5. As such, it cannot
be argued that the canvasing board performs only ministerial tasks. In any case, assuming arguendo that Tizon and
Pascual were valid representatives, the canvass held on November 22 would still have to be nullified under Sec.
162 of the REC6. The canvass was invalid because entire documents (the election returns) were missing.

Finally, the November 22 canvassing can not be justified by Sec. 160 of the REC that directs the provincial
board of canvassers to complete a tally of the votes 15 days from when the elections were held. Such period is
only directory and may be disregarded when, as in this case, multiple irregularities exist such as the
deficient representation of absent members and a complete absence of several pertinent documents.


In case maam asks, they decided to take the certified statements of the respective municipal treasurers at their face value in place of
the missing election returns
6 Sec. 162 (REC) If it should clearly appear that some requisite in form has been omitted in the statements, the board shall return them by
messenger or by another more expeditious means, to the corresponding board of canvassers for correction.
5

12

Tuanda v Sandiganbayan (not de facto officers so SBs argument that there is no prejudicial
question is invalid.)
Estrellanes and Binaohan were designated the industrial labor sectoral rep and the agri labor
sectoral rep respectively, for the Sangguniang Bayan of Jimalud, Negros Ori by the Secretary of
DILG
Mayor Tuanda et al filed a petition with the Office of the PRes for review and recall of the
designations >>> Letter denied the petition
E and B filed mandamus with Negros Oriental to be recognized as members of the SB
RTC - declared designations null and void. E & B appealed before CA
B.P. Blg. 337 explicitly required that before the President (or the Secretary of the
Department of Local Government) may appoint members of the local legislative bodies to
represent the Industrial and Agricultural Labor Sectors, there must be a determination
to be made by the Sanggunian itself that the said sectors are of sufficient number in the
city or municipality to warrant representation after consultation with associations and
persons belonging to the sector concerned.
First case - Tuanda filed an action before RTC Dumaguete to nullify E & Bs designations
Second case - The separate Sandiganbayan case for graft and corruption - A separate
information was filed before the Sandiganbayan against Tuanda et al (graft and corruption case)
DEFENSE of prejudicial question Tuanda moved for suspension of the crim case with the
Sandiganbayan on the ground that there is a prejudicial question existing in the designation case.
>>> Sandiganbayan denied hence current case
ISSUE - whether or not the legality or validity of private respondents' designation as sectoral
representatives which is pending resolution is a prejudicial question justifying suspension of the
proceedings in the criminal case against petitioners.
HELD - A prejudicial question is defined as that which arises in a case the resolution of which is a
logical antecedent of the issue involved therein, and the cognizance of which pertains to another
tribunal. The prejudicial question must be determinative of the case before the court but the
jurisdiction to try and resolve the question must be lodged in another court or tribunal.
APPLIED - Applying the foregoing principles to the case at bench, we find that the issue in the civil case,
CA-G.R. CV No. 36769, constitutes a valid prejudicial question to warrant suspension of the arraignment
and further proceedings in the criminal case against petitioners.
All the elements of a prejudicial question are clearly and unmistakably present in this case. There is no
doubt that the facts and issues involved in the civil action (No. 36769) and the criminal case (No. 16936)
are closely related. The filing of the criminal case was premised on petitioners' alleged partiality and
evident bad faith in not paying private respondents' salaries and per diems as sectoral representatives,
while the civil action was instituted precisely to resolve whether or not the designations of private
respondents as sectoral representatives were made in accordance with law.

More importantly, ,the resolution of the civil case will certainly determine if there will still be any
reason to proceed with the criminal action.
TOPIC - we find unmeritorious respondent Sandiganbayan's thesis that even in the event that
private respondents' designations are finally declared invalid, they may still be considered de
facto public officers entitled to compensation for services actually rendered.
The conditions and elements of de facto officership are the following:
1) There must be a de jure office;
2) There must be color of right or general acquiescence by the public; and
3) There must be actual physical possession of the office in good faith.
One can qualify as a de facto officer only if all the aforestated elements are present. There can be
no de facto officer where there is no de jure office, although there may be a de facto officer in a de
jure office.
13

MONROY v. CA (de facto officer but liable to pay salaries of the de jure officer even if the
former entered office in good faith)
SUMMARY - Incumbent mayor filed COC as representative of the 1st district of Rizal. Such COC was subsequently
withdrawn. Vice Mayor took oath of office as municipal mayor, alleging that the old mayor automatically forfeited
his position upon filing of the COC. The Court first ruled that Sec. 27 of the Rev. Election Code7 makes the
forfeiture automatic and permanently effective upon the filing of the certificate of for another office. The Court
then laid the general rule that the rightful incumbent of a public office may recover from an officer de facto the
salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good
faith and under color of title that applies in the present case.


facts of the case
Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal
September 15, 1961: Filed his certificate of candidacy as representative of the first district of Rizal
September 18: Petitioner filed a letter withdrawing said certificate of candidacy, which the Comelec approved.
September 21: Felipe del Rosario, then the vice-mayor, took his oath of office as municipal mayor on the
theory that petitioner had forfeited the said office upon his filing of the certificate of candidacy in question.
Petitioner then filed a suit for injunction (CFI Rizal) against respondent, which held that:
(a) The former had ceased to be mayor of Navotas, Rizal, after his certificate of candidacy was filed;
(b) Respondent del Rosario became municipal mayor upon his having assumed office as such;
(c) Petitioner must reimburse, as actual damages, the salaries to which respondent was entitled as Mayor from
September 21, 1961 up to the time he can reassume said office; and
(d) Petitioner must pay respondent P1,000.00 as moral damages.

CA: Affirmed in toto except for the award of moral damages, which was eliminated.

issue

WON the TC and CA had jurisdiction to rule on decisions made by the COMELEC. Ha? Eh wala namang COMELEC
ruling dito!
WON the filing of the COC and its subsequent withdrawal amounted to a forfeiture of his current seat. YES.

ratio
WRT jurisdiction of the regular courts
There appears to be no decision, order or ruling of the COMELEC on any administrative question or controversy. There
was no dispute before the Commission. Respondent never contested the filing of petitioner's COC neither has he disputed the
withdrawal thereof.
Assuming there was a controversy before the COMELEC, the same did not and could not possibly have anything to do with
the conduct of elections. What the parties are actually controverting is whether or not petitioner was still the municipal
mayor after September 15, 1961. This purely legal dispute has absolutely no bearing or effect on the conduct of the elections
for the seat of Congressman for the first district of Rizal.
The election can go on irrespective of whether petitioner is considered resigned from his position of municipal
mayor or not. So when petitioner withdrew the certificate announcing his candidacy for Congressman, he was no longer
interested in running for that seat. The issue on the forfeiture of his present position and the possible legal effect thereon by
the withdrawal of his certificate was completely out of the picture. Hence, that purely legal question properly fell within the
cognizance of the courts.

Sec. 27. Any elective provincial, municipal or city official running for an office, other then the one which he is actually holding, shall be
considered resigned from his office from the moment of the filing of his certificate of candidacy.
7

14

WRT the effect of filing and withdrawal of the COC


The withdrawal of a COC does not restore a candidate to his former position. Sec. 27 of the Rev. Election Code8
makes the forfeiture automatic and permanently effective upon the filing of the certificate of for another office.
Only the moment and act of filing are considered. Once the certificate is filed, the seat is forfeited forever and
nothing save a new election or appointment can restore the ousted official.
Contention: My COC was filed without my knowledge and consent!
SC: It nowhere appears that the COMELECs resolution expressly invalidated the certificate. The withdrawal of
a COC does not necessarily render the certificate void ab initio. Once filed, the permanent legal effects produced
thereby remain even if the COC itself be subsequently withdrawn. Moreover, both the TC and CA expressly found
that the COC was filed with petitioner's knowledge and consent. Since the nature of the remedy would allow a
discussion of purely legal questions only, such fact is deemed conceded.

Contention: CA erred in affirming the judgment requiring petitioner to pay actual damages (salaries he was
allegedly entitled to receive from September 21, 1961, to the date of vacation of his office as mayor)
SC: Rodriguez v. Tan9 is not applicable here for absence of factual and legal similarities. Such case requires that
the candidate duly proclaimed must assume office notwithstanding a protest filed against him and can retain the
compensation paid during his incumbency. But the case at bar does not involve a proclaimed elective official who
will be ousted because of an election contest. The present case involves the forfeiture of the office of municipal
mayor by the incumbent occupant thereof and the claim to that office by the vice-mayor because of the operation
of Sec. 27 of the Rev. Election Code.

Court then laid the general rule that the rightful incumbent of a public office may recover from an officer de
facto the salary received by the latter during the time of his wrongful tenure, even though he entered into the office
in good faith and under color of title that applies in the present case.
Rationale: For the protection of the public and individuals who get involved in the official acts of persons
discharging the duties of an office without being lawful officers.

As applied: Here, the issue is the possession of title, not of the office. A de facto officer, not having good title,
takes the salaries at his risk and must therefore account to the de jure officer for whatever amount of salary he
received during the period of his wrongful retention of the public office.


















Sec. 27. Any elective provincial, municipal or city official running for an office, other then the one which he is actually holding, shall be
considered resigned from his office from the moment of the filing of his certificate of candidacy.
9 A senator who had been proclaimed and had assumed office but was later on ousted in an election protest, is a de facto officer during
the time he held the office of senator, and can retain the emoluments received even as against the successful protestant.
8

15

GM v. Monserate (Anino was a de facto officer but is liable for salary not received by
Monserate)

SUMMARY - Monserate was appointed as Division Manager but was later demoted without her knowledge upon a
protest by Anino who was vying for the same position. Petitioners argue that there was no demotion, that choosing
who to appoint for the position was discretionary, and that her appointment wasnt final until the protest was
decided in respondents favor (which didnt occur).
SC held that Monserate was demoted without any reason. It said that once the appointing authority has chosen
who to appoint, the appointee cannot be removed from the position unless for cause. It also said that while Aninos
appointment to the said position was void, he was considered a de facto officer and is liable for the amounts not
received by Monserate (but this only refers to the difference in the salary the latter received as Admin Officer and
what she wouldve gotten as a Division Manager).

facts of the case

Monserate began as a Bookkeeper II in the Port Mgt Office, PPA, Iloilo City in 1977. She was promoted to
Cashier II (1978) and then as Finance Officer (SG-16) in 1980. In 1988, PPA underwent a reorganization.
Respondent applied for the permanent position of Manager II (SG-19) of the Resource Management Division (same
ofc). 6 of them vied for the position but Dumlao, the GM of the PPA, appointed her. She assumed office on Feb
1,1988 and her appointment was approved by the CSC on July 8, 1988.
Meanwhile, on April 18, 1988, Anino (the second choice. Awts) filed an appeal/petition with the PPA Appeals
Board, protesting her appointment. As a result, her appointment was rendered ineffective without explaining
the grounds10 (PPA Resolution, dated Aug 1188). On October 24, 1988, Monserate was furnished a copy of PPA
Special Order No. 479-88 which implemented the resolution rendering her appointment ineffective (nagulat siya
na her name was excluded from the PPA Managers Pool list and instead, Anino was given the position).
Monserate filed an appeal/request for clarification with the new PPA GM (Dayan), questioning her replacement
since the proceedings were irregular11. Pending resolution of the same, she received a copy of PPA Special Order
No. 492-88 which demoted her to Administrative Officer (SG-15; a position lower than her previous position as
Finance Officer). Monserate filed a precautionary appeal with CSC protesting Aninos appointment and questioning
the PPA resolution which rendered her appointment ineffective. This was dismissed by the CSC (ground: as long as
the other person is qualified, wont disturb decision), along with the subsequent MR she later filed. Upon a petition
for review with CA, the CSC resolutions were nullified (ground: PPA resolution not supported by evidence and
irregularly issued cos no proper notice to Monserate + demotion violated right to security of tenure and DP). This
prompted petitioners current petition for review on certiorari.

Petitioners:
(1) no demotion since demotion, being an admin penalty, presupposes a conviction in an admin case (which isnt
present here; only removed cos of reorganization in GF!);
(2) displacement was a necessary effect of the PPA Resolution of the protest (appointment not final until protest
was favorably decided in her favor)
(3) head of the agency (appointing authority) has discretion to choose!

issue
1. WON there was due process when Monserate was replaced by Anino - NO
2. WON Anino was a de facto officer - YES

ratio

(1) The PPA reorganization in 1988 had nothing to do with the demotion. It was precisely because of said
reorganization that Monserate applied to the higher position of Division Manager II. She was issued a
permanent appointment on Feb 188, which was later approved on July 888. It was only AFTER the reorg and

Basis for the grant of protest: (1) CSC MC No. 5, s. 1988, Par. 3;[7] (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B;[8] and (3) Civil Service
Eligibility.
11 1) she was not notified of the hearing before it; (2) she was not furnished a copy of the August 11, 1988 PPA Appeals Board Resolution or a
copy of the protest filed by petitioner Anino; (3) she was not informed of the reasons behind her replacement; and (4) their Port Manager
(in Iloilo City), who was then an official member of the Board, was not included in the said proceedings.
10

16

upon issuance of the PPA Resolution (Aug 1188) when she was demoted! This was further shown by several
orders and appointments subsequently issued by PPA GM Dayan. Additionally, the PPA Resolution cannot
uphold Aninos appointment since he was only appointed on October 2188 which is 2 months after the PPA
Resolution (how can it uphold something that was nonexistent?). Also, the grounds stated in the PPA
Resolution were incomprehensible for lack of discussion to enable Monserate to know why she was demoted.
So the PPA Resolution is VOID, no only because of the foregoing, but also because her rights to security of
tenure and DP were violated (had no notice of the proceedings).

Aquino vs. Civil Service Commission: once an appointment is issued and the moment the appointee assumes a
position in the civil service under a completed appointment, he acquires a legal, not merely equitable, right (to the
position) which is protected not only by statute, but also by the constitution, and cannot be taken away from him
either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing.

While the appointing authority has a wide latitude of discretion in the selection and appointment of qualified
persons to vacant positions in the civil service, once such discretion is exercised and the appointee assumes the
duties and fxns of such position, the appointment cannot be revoked by the appointing authority, nor can it appoint
another in his stead except for cause. This means that her position as Manager II never became vacant since her
demotion was void!

(2) While Aninos appointment was void, he is considered a de facto officer during his period of his incumbency. A
de facto officer is one who is in possession of an office and who openly exercises its functions under color of an
appointment or election, even though such appointment or election may be irregular.

Monroy v CA: a rightful incumbent of a public office may recover from a de facto officer the salary received by the
latter during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith
and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore,
account to the de jure officer for whatever salary he received during the period of his wrongful tenure.

Civil Liberties Union v Exec Sec: in cases where theres no de jure officer, a de facto officer, who in GF, has had
possession of the ofc and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the
office, and may in appropriate action recover the salary, fees and other compensations attached to office.

So, where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the
emoluments attached to the office, even if he occupied the office in good faith. HOWEVER, this isnt squarely
applicable here because of the attendant circs. Monserate received emoluments, salary and other compensation as
Administrative Officer. Hence, shes entitled only to backpay differentials from her assumption as AO up to her
actual reinstatement as Division Manager (with Anino to pay the same from the time he assumed such office up to
his retirement on Nov 30, 1997).

17

CLU v. Exec Secretary (de facto and entitled to salaries because of no de jure officers involved)
SUMMARY - Petitioners seek to render EO 284, which allegedly adds to the exceptions of holding multiple offices
by the pres, vp, and cabinet members found in Sec 13 Art VII of the consti, unconstitutional. Rs counter that Sec 7
par. (2), Art I-XB in connection with Sec 14 Art VII makes said EO constitutionally firm. SC held that the EO is
unconstitutional. Sec 7 par. (2), Art I-XB provides for the general rule while Sec 13 Art VII is the exception to it. See
bottom of the ratio for de facto doctrine.

facts of the case

There are two petitions to seek a declaration of the unconstitutionality of Executive Order No. 28412 issued by
President Corazon C. Aquino on July 25, 1987
Ps claim that the EO allows members of the Cabinet, their undersecretaries and assistant secretaries to hold
other government offices or positions in addition to their primary positions, albeit subject to the limitation
therein imposed, runs counter to Section 13, Article VII13 of the 1987 Constitution
Petitioners Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the
extraordinary writs of prohibition and mandamus, as well as a TRO directing public respondents therein to
cease and desist from holding, in addition to their primary positions, dual or multiple positions other than
those authorized by the 1987 Constitution.
o Anti graft league claims that the said EO and the DOJ opinion 73 "lumped together" Section 13, Article
VII and the general provision in another article, Section 7, par. (2), Article I-XB14.
o They claim that the provisions petrain to a distinct and separate group of public officers, one, the President
and her official family, and the other, public servants in general allegedly
o The said EO abolished the clearly separate, higher, exclusive, and mandatory constitutional rank assigned
to the prohibition against multiple jobs for the President, the Vice-President, the members of the Cabinet,
and their deputies and subalterns.
In sum, petitioners are challenging the constitutionality of Executive Order No. 284 because it adds exceptions
to Section 13, Article VII other than those provided in the Constitution.
o According to petitioners, by virtue of the phrase "unless otherwise provided in this Constitution," the only
exceptions against holding any other office or employment in Government are those provided in the
Constitution, namely: (1) The Vice- President may be appointed as a Member of the Cabinet under
Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

Issue
WON the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies
or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7,
par. (2), Article I-XB. NO the EO is unconstitutional

Ratio

A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object
sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied.
o The practice of designating members of the Cabinet, their deputies and assistants as members of the
governing bodies or boards of various government agencies and instrumentalities, including
government-owned and controlled corporations, became prevalent during the time legislative

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or assistant secretary
or other appointive officials of the Executive Department may, in addition to his primary position, hold not more than two positions in the
government and government corporations and receive the corresponding compensation therefor; Provided, that this limitation shall not
apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the Chairman.
13 Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in
this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice
any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations
or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
14 Sec. 7.Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or
employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
12

18

o
o

powers in this country were exercised by former President Ferdinand E. Marcos pursuant to his
martial law authority.
This practice led to abuses by unscrupulous public officials who took advantage of this scheme
for purposes of self-enrichment.
Particularly odious and revolting to the people's sense of propriety and morality in government service were the data
contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies,
instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R.
Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13);
Ruben B. Ancheta and Jose A. Roo of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven
(11) each; and Lilia Bautista and Teodoro Q. Pea of ten (10) each.

Although Section 7, Article I-XB already contains a blanket prohibition against the holding of multiple offices or
employment in the government subsuming both elective and appointive public officials, the Constitutional
Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the
President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office
or employment during their tenure, unless otherwise provided in the Constitution itself.
o The intent of the framers of the Constitution was to impose a stricter prohibition on the President
and his official family in so far as holding other offices or employment in the government or
elsewhere is concerned.
o The prohibition imposed on the President and his official family is therefore all-embracing and
covers both public and private office or employment.
o These prohibitions are not similarly imposed on other public officials or employees such as the
Members of Congress, members of the civil service in general and members of the armed forces, are
proof of the intent of the 1987 Constitution to treat the President and his official family as a
class by itself and to impose upon said class stricter prohibitions.
o In other words, Section 7, Article I-XB is meant to lay down the general rule applicable to all
elective and appointive public officials and employees, while Section 13, Article VII is meant to be
the exception applicable only to the President, the Vice- President, Members of the Cabinet,
their deputies and assistants.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the
Constitution must NOT, however, be construed as applying to posts occupied by the Executive officials
specified therein without additional compensation in an ex-officio capacity as provided by law and as
required by the primary functions of said officials' office.
o The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from
official character merely, not expressly conferred upon the individual character, but rather annexed to
the official position."
o An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and
without further warrant or appointment.
o The additional duties must not only be closely related to, but must be required by the official's primary
functions.
o Such additional duties or functions must be required by the primary functions of the official concerned,
who is to perform the same in an ex-officio capacity as provided by law, without receiving any
additional compensation therefor.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and

Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of National Defense Fidel V. Ramos,
Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish their other offices or
employment, as herein defined, in the government, including government-owned or controlled corporations and their subsidiaries.
With respect to the other named respondents, the petitions have become moot and academic as they are no longer occupying the
positions complained of.

DE FACTO: During their tenure in the questioned positions, respondents may be considered de facto officers
and as such entitled to emoluments for actual services rendered. It has been held that "in cases where
there is no de jure, officer, a de facto officer, who, in good faith has had possession of the office and has
discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an
appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the
services of an officer de facto and then be freed from all liability to pay any one for such services.

19