Political Law Summer Reviewer

ATENEO CENTRAL BAR OPERATIONS 2007

LAW ON PUBLIC OFFICERS 5. education,

6. ability to read and write,
PUBLIC OFFICE is the right, authority, and duty 7. political affiliation,
created and conferred by law, by which for a given 8. civil service examination
period, either fixed by law or enduring at the pleasure
of the appointing power, an individual is invested with III. Disqualifications
some portion of the sovereign functions of the The following are grounds for disqualification to hold
government, to be exercised by him for the benefit of public office:
the public. 1. mental or physical incapacity,
2. misconduct or crime,
Essential elements 3. impeachment,
1. Created by Constitution or by law or by some 4. removal or suspension from office,
body or agency to which the power to create 5. previous tenure of office,
the office has been delegated (enabling law) 6. consecutive terms,
2. Invested with authority to exercise some 7. holding more than one office,
portion of the sovereign power of the State 8. relationship with the appointing power,
3. Powers/Functions defined by the 9. office newly created or the emoluments of
Constitution, law, or through legislative which have been increased,
authority 10. being an elective official,
4. Duties are performed independently without 11. having been a candidate for any elective
control unless those of a subordinate position, and
5. Continuing / permanent in nature 12. grounds under the local government code.

Distinctions In the absence of constitutional inhibition,

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,
4. residence,
Congress has the same right to provide
disqualifications that it has to provide
qualifications for office.
When the 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.
The qualifications are continuing
requirements and must be possessed not
only at the time of appointment or election or
assumption of office but during the officers
entire tenure.
Limitations on the power of the legislature to
prescribe qualifications:
1. The legislature may not reduce or increase
the qualifications prescribed in an exclusive
manner by the Constitution.
2. The legislature may prescribe only general
qualifications.
3. 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.
1. Appointment
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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.
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
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:
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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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.
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.
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
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.
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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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.
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.
IV. How to challenge a de facto officer:
The incumbency of a de facto officer may not
be challenged collaterally or in an action to
which he is not a party.
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.
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
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2. non-career service
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
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;
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;
4. Career officers, other than those in the
Career Executive Service, who are
appointed by the President, such as the
Foreign Service Officers in the DFA;
5. Commissioned officers and enlisted men
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.
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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accordance with a special contract to
undertake a specific work or job, requiring
special or technical skills not available in the
employing agency, to be accomplished within
a specific period, which in no case shall
exceed one year, and performs or
accomplishes the specific work or job, under
his own responsibility with minimum of
direction and supervision from the hiring
agency; and
5. Emergency and seasonal personnel.
III. Appointments
Appointments in the Civil Service may either be:
1. Permanent issued to a person who meets
all the requirements for the position to which
he is being appointed, including the
appropriate eligibility prescribed, in
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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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
eligible is without a definite tenure and is dependent
upon the pleasure of the appointing power.
IV. Exceptions from Requirement of Competitive
Examinations
1. policy-determining charged with laying
down of principal and fundamental guidelines
or rules, such as that of a head of a
department.
2. primarily confidential denotes close
intimacy which ensures freedom of
intercourse without embarrassment or
freedom from misgivings or betrayals of
personal trust or confidential matters of state;
or one declared to be so by the President
upon recommendation of the Civil Service
Commission. Their tenure ends upon loss of
confidence.
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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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
Preventive Suspension
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
1. expressly conferred upon him by the law
under which he has been appointed or
elected;
2. expressly annexed to the office by the law
which created it or some other law referring
to it; or
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
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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.
2. Discretionary when it requires the
exercise of reason and discretion in
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
his instructions and subject to his
approval).
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
3. Acts of the Government or People
a. Removal
b. Impeachment
c. Abolition of Office
d. Conviction of a crime
e. Recall
OTHER IMPORTANT CONCEPTS
1. HOLD-OVER a public officers 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
A PUBLIC OFFICE.
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4. DIVESTMENT is when a public official is in a Even if a public officer had indeed signed his
conflict-of-interest situation. Such official must resign PDS without bothering to review the same,
from his position in any private business enterprise he cannot escape administrative liability
within 30 days from his assumption of office and/or therefore such an omission is considered
divest himself of his shareholdings or interest within as gross negligence on his part.
60 days from such assumption.
Garcia v Sandiganbayan, 460 SCRA 60 (June 22,
5.OFFICIAL IMMUNITY only protects public officials 2005)
from tort liability for damages arising from
discretionary acts or functions in the performance of Ratio:
their official duties. While at present, it is the Ombudsman who
should file the petition for forfeiture under RA
1379, the Ombudsmans exercise of the
Velasco v. Sandiganbayan, 452 SCRA 593 correlative powers, to investigate and initiate
(February 28, 2005) the proper action for recovery of ill-gotten
and/or unexplained wealth is restricted only
Ratio: to cases for the recovery of ill-gotten and/or
It is not necessary that the officer or unexplained wealth amassed after February
employee who willfully refuses or fails to 25, 1986 as regards such wealth
implement such final resolution be a party to accumulated on or before said date, the
the case. authority to file forfeiture proceedings belong
to the Solicitor General. The Ombudsman
Barriga v. Sandiganbayan, 457 SCRA 301 (April has the authority to investigate cases even
26, 2005) before February 25, 1986, pursuant to the
Ombudsmans general investigatory power
Ratio: under Section 15(1) of RA 6770.
Where the public office of an accused is by
statute a constituent element of the crime Peralta v Desierto*, 473 SCRA 322 (October 19,
charged, there is no need for the Prosecutor 2005)
to state in the Information specific factual
allegations of the intimacy between the office Ratio:
and the crime charged, or that the accused Every public official who signs or initials
committed the crime in performance of his documents in the course of standard
duties. operating procedures does not automatically
become a conspirator in a crime that
Advincula v. Dicen , 458 SCRA 696 (May 16, 2005) transpired at some stage in which the official
had no participation.
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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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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