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Political Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 L AW O

Political Law Summer Reviewer

Political Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 L AW O

ATENEO CENTRAL BAR OPERATIONS 2007

L AW ON PUBLIC OFFICERS

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 the sovereign functions of the government, to be exercised by him for the benefit of the public.

Essential elements

  • 1. Created by Constitution or by law or by some body or agency to which the power to create the office has been delegated (enabling law)

  • 2. Invested with authority to exercise some portion of the sovereign power of the State

  • 3. Powers/Functions defined by the Constitution, law, or through legislative authority

  • 4. Duties are performed independently without control unless those of a subordinate

  • 5. Continuing / permanent in nature

Distinctions

Public Official is an officer of the Government itself, as distinguished from the officers and employees of instrumentalities of government. Officer is distinguished from an employee in the greater importance, dignity and independence of his position, being required to take an official oath, and perhaps give an official bond and in the liability to be called to account as a public offender for

misfeasance or nonfeasance in office.

REQUIREMENTS FOR PUBLIC OFFICE

I. Eligibility and Qualification

Eligibility is the state or quality of being legally fit or

qualified to be chosen. Qualification refers to the act which a person, before entering upon the performance of his duties, is by law required to do such as the taking, and often, subscribing and filing of an official oath, and, in some cases, the giving of an official bond.

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Who are required to give an official bond?

Accountable public officers or those to whom are entrusted the collection and custody of public money, and public ministerial officers whose actions may affect the rights and interests of individuals. II. Formal qualifications:

  • 1. citizenship,

  • 2. age,

  • 3. suffrage,

5.

education,

6.

7.

political affiliation,

8.

III. Disqualifications

public office:

 

1.

2.

3.

impeachment,

4.

5.

6.

7.

8.

9.

When

the

The

entire tenure.

1.

2.

3.

1.

Appointment

ability to read and write,

civil service examination

The following are grounds for disqualification to hold

mental or physical incapacity,

misconduct or crime,

removal or suspension from office,

previous tenure of office,

consecutive terms,

holding more than one office,

relationship with the appointing power,

office newly created or the emoluments of

which have been increased, 10. being an elective official, 11. having been a candidate for any elective position, and 12. grounds under the local government code.

In the absence of constitutional inhibition, Congress has the same right to provide disqualifications that it has to provide qualifications for office.

constitution

has

attached

a

disqualification to the holding of any office, Congress cannot remove it under the power

to prescribe qualifications as to such offices as it may create. Presumption is in favor of eligibility.

qualifications

are continuing

requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer’s

Limitations on the power of the legislature to prescribe qualifications:

The legislature may not reduce or increase the qualifications prescribed in an exclusive manner by the Constitution.

The legislature may prescribe only general qualifications.

The qualifications must be relevant to the office for which they are prescribed.

IV. Selection for Public Office A public officer is chosen either by appointment or election.

  • 4. residence,

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Political Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 Appointment is the

Political Law Summer Reviewer

Political Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 Appointment is the

ATENEO CENTRAL BAR OPERATIONS 2007

Appointment is the act of designation by the executive officer, board, or body to whom that power has been delegated, of the individual who is to exercise the powers and functions of a given office. It is to be distinguished from the selection or designation by a popular vote.

V. Vacancy

There is a vacancy when an office is empty and without a legally qualified incumbent appointed or elected to it with a lawful right to exercise its powers

and perform its duties. There can be no appointment to a non-vacant position.

Power to appoint is generally regarded as an executive function. But it is not limited to the executive department.

Power of appointment is absolute when the choice of the appointing authority is conclusive. It is conditional where assent or approval by some other officer or body is necessary to complete the appointment. Acceptance of appointment is not necessary

Causes of vacancy are death, permanent disability, removal from office or resignation of the incumbent. Other causes of vacancy are abandonment, expiration of term, conviction of a crime, impeachment conviction, acceptance of incompatible office, creation of a new office, reaching the age limit, and recall.

DE FACTO AND DE JURE OFFICERS

for the completion or validity of appointment. However, acceptance is necessary to possession of office, and to enable appointee to the enjoyment and responsibility of an office. Acceptance may be express when it is done verbally or in writing. Acceptance is implied when without formal acceptance, the appointee enters upon the exercise of the duties and functions of an office. The general rule is that an appointment to an office, once made and complete, is not subject to reconsideration or revocation. The exception is where an officer is removable at will of the appointing power.

Steps in the Appointing Process:

I. De Facto Officers

A de facto officer is one who actually possesses an office although he has an imperfect or colorable title thereto. His acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons.

The requisites of de facto officer:

  • 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.

  • 1. Nomination – exclusive prerogative of the President

  • 2. Confirmation – belongs to Congress i.e. Commission on Appointments

  • 3. Issuance of commission – a commission is 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.

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Confirmation on the part of the Civil Service

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Commission is called “Attestation”.

  • 2. Designation

Designation

is

simply

the

mere

imposition of new or additional duties upon an officer to be performed by him in a special manner. It presupposes that the officer is already in the service by virtue of an earlier appointment, performing other functions.

II. De Jure Officers A de jure officer is one who has the 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. When the officer de jure is also the officer de facto, the lawful title and possession are united.

Usurper is one who takes possession of the office and undertakes to act officially without any color of right or authority, either actual or apparent.

III. Effects of Acts of De Facto Officers

The lawful acts of an officer de facto, so far

as the rights of third persons are concerned are, if done within the scope and by the apparent authority of the office, considered valid and binding as if he were the officer legally elected and qualified for the office and in full possession thereof.

The de facto officer cannot benefit from his own status because public policy demands that unlawful assumption of public office be

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Political Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 discouraged. Thus, as

Political Law Summer Reviewer

Political Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 discouraged. Thus, as

ATENEO CENTRAL BAR OPERATIONS 2007

discouraged. Thus, as a general rule, the de facto officer cannot claim a salary and other compensations for services rendered by him as such. However, there is authority to the effect that the de facto officer may retain salaries collected by him for services rendered in good faith where there is no de jure officer claiming the office.

  • 3. security of tenure

The Career Service includes:

  • 1. Open career positions for which prior qualification in an appropriate examination is required;

  • 2. Closed career positions which are scientific or highly technical in nature;

The de facto officer is subject to the same liabilities imposed on the de jure officer in the discharge of official duties, in addition to whatever special damages may be due from him because of his unlawful assumption of office.

  • 3. Career Executive Service Undersecretary, Asst. Secretary, Bureau Director, Asst. Bureau Director, Regional Director, Asst. Regional Director, Chief of Dept. Service, and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President;

IV. How to challenge a de facto officer:

  • 4. Career officers, other than those in the

  • 5. Commissioned officers and enlisted men

The incumbency of a de facto officer may not

Career Executive Service, who are appointed by the President, such as the

be challenged collaterally or in an action to which he is not a party.

Foreign Service Officers in the DFA;

The challenge must be made in a direct

proceeding where title to the office will be the principal issue.

The authorized proceeding is quo warranto either by the Solicitor General in the name of the Republic or by any person claiming title to the office.

in the Armed Forces, which shall maintain a separate merit system;

  • 6. Personnel of GOCCs, whether performing governmental or proprietary functions, who do not fall under the non-career service; and

  • 7. Permanent laborers, whether skilled, semi- skilled, or unskilled.

THE CIVIL SERVICE

I. Scope of the Civil Service

The civil service embraces all branches, subdivisions, instrumentalities, and agencies

of the Government, including government- owned or controlled corporations with original charters. The civil service does not include government-owned or controlled corporations which are organized as subsidiaries of government-owned or controlled corporations under the general corporation law.

II. Positions in the Civil Service

  • 1. career service

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  • 2. non-career service

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Career Service

The Career Service is characterized by:

  • 1. entrance based on merit and fitness to be determined, as far as practicable, by competitive examinations, or based on highly technical qualifications;

  • 2. opportunity for advancement to higher career positions; and

Non-Career Service

The Non-Career Service is characterized by:

  • 1. Entrance on bases other than those of usual tests of merit and fitness utilized for the career service; and

  • 2. Tenure which is limited to a period specified by law, or which is co-terminous 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.

The Non-Career Service includes:

  • 1. Elective officials and their personal or confidential staff;

  • 2. Department Heads and other officials of Cabinet rank who hold positions at the pleasure of the President and their personal or confidential staff;

  • 3. Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff;

  • 4. Contractual personnel or those whose employment in the government is in

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Political Law Summer Reviewer

 
Political Law Summer Reviewer
Political Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 accordance with a

ATENEO CENTRAL BAR OPERATIONS 2007

 
 

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

Emergency and seasonal personnel.

eligible is without a definite tenure and is dependent upon the pleasure of the appointing power.

IV. Exceptions from Requirement of Competitive Examinations

exceed one year, and performs or

  • 1. policy-determining – charged with laying

accomplishes the specific work or job, under

down of principal and fundamental guidelines

his own responsibility with minimum of direction and supervision from the hiring

or rules, such as department.

that

of

a

head of a

5.

agency; and

  • 2. primarily confidential – denotes close

III. Appointments

 

intimacy which ensures freedom of intercourse without embarrassment or

Appointments in the Civil Service may either be:

 

freedom from misgivings or betrayals of

  • 1. Permanent – issued to a person who meets all the requirements for the position to which

personal trust or confidential matters of state; or one declared to be so by the President upon recommendation of the Civil Service

 

he

is

being appointed, including the

Commission. Their tenure ends upon loss of

appropriate

eligibility

prescribed,

in

confidence.

accordance with the provisions of the laws,

rules, and standards promulgated in pursuance thereof.

  • 2. Temporary – issued in the absence of appropriate eligibles when necessary in the public interest to fill a vacancy to a person who meets all the requirements for the position to which he is being appointed, except the appropriate civil service eligibility. Temporary appointments shall not exceed 12 months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available.

NOTE: Where a temporary appointee acquires civil service eligibility during his tenure as such, his temporary appointment does not thereby automatically become permanent. What is required is a new appointment. (Maturan v. Magalona)

Provisional Appointment – one which may be issued, upon the prior authorization of the Commissioner of the Civil Service Commission in accordance with the provisions of the Civil Service Law and the rules and standards promulgated

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thereunder, to a person who has not qualified in an

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appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment.

Distinguished from a Temporary appointment temporary appointment given to a non-civil service

  • 3. highly technical – requires the appointee to possess technical skill or training in the supreme or superior degree.

V. Promotion

The movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay

Next-in-Rank Rule The person next in rank shall be given preference in promotion when the position immediately above his is vacated. However, the concept of next-in-rank does not import any mandatory or peremptory requirement that the person next in rank must be appointed to the vacancy. The appointing authority has the discretion to fill the vacancy under the next-in-rank rule or by any other method authorized by law, e.g., by transfer.

VI. Discipline

Grounds for the discipline of members of the Civil Service:

  • 1. dishonesty

  • 2. oppression

  • 3. neglect of duty

  • 4. misconduct

  • 5. disgraceful and immoral conduct

  • 6. being notoriously undesirable

  • 7. discourtesy in the course of official duties

  • 8. inefficiency and incompetence in the performance of official duties

  • 9. conviction of a crime involving moral turpitude

    • 10. falsification of official documents

    • 11. habitual drunkenness

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Political Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 12. gambling 13.

Political Law Summer Reviewer

Political Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 12. gambling 13.

ATENEO CENTRAL BAR OPERATIONS 2007

  • 12. gambling

  • 13. refusal to perform official duty or render overtime service

  • 14. physical or mental incapacity due to immoral or vicious habits

  • 15. willful refusal to pay just debts or willful failure to pay taxes due to the government

determining how or whether the act shall be done or the course pursued. The officer is expected to discharge the duty directly and not through the intervening mind of another. It cannot be delegated to another, subject to some exceptions (power of the President to conclude treaties may be

 

assigned to a treaty panel, which

can

negotiate the treaty on his behalf, under

Preventive Suspension

his instructions and subject to approval).

his

Two Kinds:

  • 1. Preventive Suspension Pending Investigation

  • 2. Preventive Suspension Pending Appeal

The duration of preventive suspension is coextensive with the period prescribed for deciding administrative disciplinary cases. If the case is decided before ninety (90) days then the suspension will last less than ninety (90) days, but if the case is not decided within ninety (90) days, then the suspension may not exceed the maximum period of ninety (90) days.

SCOPE OF POWER OF A PUBLIC OFFICER

Modes of Termination of Official Relations

  • 1. Natural Causes

    • a. Expiration of the term or tenure of office

    • b. Reaching the age limit ( retirement)

    • c. Death or permanent disability

  • 2. Acts / Neglect of Officer

    • a. Resignation

    • b. Acceptance of an incompatible office

    • c. Abandonment of Office

    • d. Prescription of Right to Office

    • 1. expressly conferred upon him

    by

    the

    law

    • 3. Acts of the Government or People

    under which he has been appointed or

    • a. Removal

    elected;

    • b. Impeachment

    • 2. expressly annexed to the office by the law

    • c. Abolition of Office

    which created it or some other law referring

    • d. Conviction of a crime

    to it; or

    • e. Recall

    • 3. attached to the office as incidents to it.

    Doctrine of Necessary Implication:

    The fact that a particular power has not been expressly conferred does not necessarily mean that it is not possessed by the officer claiming it. Such a power may still be sustained under the doctrine of necessary implication pursuant to which all powers necessary to the exercise of the power expressly granted are deemed impliedly granted.

    Kinds of Duties/Powers:

    • 1. Ministerial when it is absolute, certain, and imperative involving merely execution of a specific duty arising from fixed and

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    designated facts. A duty is ministerial when the law exacting its discharge prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing is left for judgment or discretion. It is susceptible of delegation and can be compelled by judicial action.

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    OTHER IMPORTANT CONCEPTS

    • 1. HOLD-OVER – a public officer’s term has expired

    or his services terminated but he should continue holding his office until his successor is appointed or

    chosen and had qualified.

    • 2. NEPOTISM – all appointments in the national and

    local governments or any branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing authority; recommending authority; chief of the bureau or office; or person exercising immediate supervision over the appointee are PROHIBITED.

    Exceptions to the nepotism rule:

    • 1. persons employed in a confidential capacity

    • 2. teachers

    • 3. physicians

    • 4. members of the AFP

    • 3. COMPENSATION IS NOT INDISPENSABLE TO

    • 2. Discretionary

    when

    it

    requires

    the

    A PUBLIC OFFICE.

    exercise

    of

    reason

    and

    discretion

    in

    Page 102 of 125

    • Even if a public officer had indeed signed his PDS without bothering to review the

    Even if a public officer had indeed signed his PDS without bothering to review the same, he cannot escape administrative liability therefore – such an omission is considered as gross negligence on his part.

    Garcia v Sandiganbayan, 460 SCRA 60 (June 22,

    2005)

    Ratio:

    While at present, it is the Ombudsman who should file the petition for forfeiture under RA 1379, the Ombudsman’s exercise of the correlative powers, to investigate and initiate the proper action for recovery of ill-gotten and/or unexplained wealth is restricted only to cases for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 – as regards such wealth accumulated on or before said date, the authority to file forfeiture proceedings belong to the Solicitor General. The Ombudsman has the authority to investigate cases even before February 25, 1986, pursuant to the Ombudsman’s general investigatory power under Section 15(1) of RA 6770.

    Peralta v Desierto*, 473 SCRA 322 (October 19,

    2005)

    Ratio:

    Every public official who signs or initials documents in the course of standard operating procedures does not automatically become a conspirator in a crime that transpired at some stage in which the official had no participation.

    Political Law Summer Reviewer

    • Even if a public officer had indeed signed his PDS without bothering to review the

    ATENEO CENTRAL BAR OPERATIONS 2007

    4. DIVESTMENT is when a public official is in a conflict-of-interest situation. Such official must resign from his position in any private business enterprise within 30 days from his assumption of office and/or divest himself of his shareholdings or interest within 60 days from such assumption.

    5.OFFICIAL IMMUNITY only protects public officials from tort liability for damages arising from discretionary acts or functions in the performance of their official duties.

    Velasco v. Sandiganbayan, 452 SCRA 593 (February 28, 2005)

    Ratio:

    It

    is

    not

    necessary

    that

    the

    officer

    or

    employee who willfully

    refuses

    or

    fails

    to

    implement such final resolution be a party to the case.

    Barriga v. Sandiganbayan, 457 SCRA 301 (April 26, 2005)

    Ratio:

    Where the public office of an accused is by statute a constituent element of the crime charged, there is no need for the Prosecutor to state in the Information specific factual allegations of the intimacy between the office and the crime charged, or that the accused committed the crime in performance of his duties.

    Advincula v. Dicen , 458 SCRA 696 (May 16, 2005)

    Ratio:

    The Personal Data Sheet (“PDS”) is an official document required of a government

    employee or

    official

    by

    the

    Civil

    Service

    Commission – concealment of any information in the PDS warrants a penalty from the erring official.

    Misconduct, by uniform legal definition, is a

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    transgression of some established and

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    definite rule of action, more particularly,

    unlawful behavior as well as gross negligence by the public officer.

    It is incumbent

    on

    a

    public

    official

    to

    scrutinize each and every document he signs, it is hard to believe that he would affix his signature on his PDS without bothering to scrutinize, and correct if erroneous.

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