(Pages 68-134)
for which they are authorized to be issued, then they
Standards fixed cannot be enlarged nor restricted
- Where the law set standards by which the delegate
may exercise the delegated power, the administrative
agency cannot add or enlarged the standards.
When standard insufficient
- Statute which prescribes no or inadequate standard for
the exercise of a delegated legislative power and the
rules issued by an administrative agency to implement
the law are null and void
o Eg. EO no. 628 “…The carabao or carabeef
transported in violation of EO as amended
shall be subject to confiscation and forfeiture
by the gov’t, to be distributed to charitable
institutions and other similar institutions as
the chairman of national meat inspection
may see fit”
o “may see fit” – is extremely generous and
dangerous condition
Usual issues on validity of delegation
- 1. Against the delegating statute itself
o Refers to the question whether or not the
requisites of valid delegation are present,
namely:
 the completeness of the statute
making the delegation
 the presence of sufficient standard
- 2. Against the exercise of the delegated power
o Whether or not the rule or regulation
conforms with what the statute provides and
whether the same is reasonable.
Take note: if the rule expands or restricts the statute or is unjust or
unreasonable - INVALID
Rules or regulations, generally.
- Rules and regulations are the product of subordinate
legislation. If valid, the rules and regulations issued by
the administrative agencies to implement the law have
the force and effect of law.
- TO BE VALID - administrative rules and regulations
must be germane to the objects and purpose of the
law, conform to the standard that the law prescribes,
must be reasonable and must be related solely to
carrying into effect the general provisions of the law.
- If the implementing rules and regulations are issued in
excess of the rule-making authority of the
administrative gency, they are without binding effect
upon the courts.
Regulations cannot restrict nor enlarge the law
- Implementing rules cannot add to or detract from the
provisions of the law it is designed to implement
- If discrepancy occurs between the basic law and an
implementing rule or regulation, it is the former that
prevails.
Rules must be reasonable
- If shown to bear no reasonable relation to the purposes
must be held to be invalid.
Egs. Lupangco vs. CA – SC held that the
resolution prohibiting examinees in an
accountancy licensure exam from attending to
any review class or receiving any handouts or tips
from any institution during 3 days immediately
preceding every examination day including
examination day is unconstitutional for being
violative of academic freedom.
Rules constituting offense
- Administrative bodies have the authority to issue
administrative regulations which are penal in nature
where the law itself makes the violation of the
administrative regulation punishable and provides its
penalty.
- HOWEVER, if the law does not provide that violation of
such rules shall be unlawful and punishable, or even if
it does, it does not prescribe the penalty for such
violation – the administrative body has no power to
penalize.
o Eg. People vs. Maceren – SC held that Sec. of
Agriculture exceeded his authority and the
administrative order was devoid of legal basis
because the fisheries law did not expressly
prohibit electro fishing.
When rules take effect
- Laws/rules shall take effect after 15 days following their
completion of their publication in the official gazette,
unless it is otherwise provided.
- Publication must be in full or it is no publication at all
since its purpose is to inform the public of the contents
of the law.
o APART FROM PUBLICATION: it is also
required that the rules and regulations must
be filed with the UP LAW CENTER.
- GENERAL RULE: Issuance of rules and regulations to
implement the law does not require that there be prior
notice and hearing conducted by administrative agency.
o EXCEPTION: if the statute making the
delegation requires such hearing, then one
must be conducted.
- Interpretative regulations and those merely internal in
nature, that is, regulating only the personnel of the
admin. Agency and not the public, need not be
published.
Here are some examples that needs to be published:
1. Charter of a city
2. ALL presidential decrees
3. Circulars issued by the Monetary Board if they are meant
not merely to interpret but to fill in the details of the Central Bank Act
which that body is supposed to enforce.
Delegation of ascertain facts
- Congress may delegate to an administrative agency the
power to ascertain facts as basis to determine when a
law may take into effect or whether a law may be
suspended or come to ane end, in accordance with
purpose or policy of the law and the standard for the
exercise of the power delegated. This is not delegation
of what the law shall be.
- To be valid, the law delegating the power to determine
some facts or state of things which the law may take
effect or its operation suspended must provide the
standard, fix the limits within which the
discretion may be exercised and define the
conditions.
- Absent these requirements, the law and the rules
issued thereunder are void, the former being an undue
delegation of legislative power and the latter being the
exercise of rule-making without legal basis.
o Eg. The law authorizing to issue rules
whenever, for any cause, to fix the
maximum price of of palay, rice or corn.
 “For any cause” – the law did not
define as such nor did it prescribe
the standards thereof.
Prohibition against re-delegation
- The doctrine of “potestas delegate non delegari
protest” - what has been delegated cannot be
delegated.
- Based on the ethical principle that such a delegated
power constitutes not only a right but a duty to be
perfomed by the delegate through the instrumentality
of his own judgment and no through the intervening
mind of another.
- A further delegation of such power would negate the
duty in violation of the trust reposed in the delegate
mandated to discharge it directly
o Eg. The Land Transportation Franchising and
Regulatory Board has been granted the
power to fix rates for the transport sector. Its
such delegation of such power to common
carries constitutes a violation of doctrine –
INVALID.
Delegation of fixing power
- The legistlature usually delegates its rate-fixing power
to administrative agencies for the latter to fix the rates
which public utility companies may charge the public.
- INORDER for it to have a VALID delegation – it must be
complete and it must fix sufficient standard
- In case of a delegation of rate-fixing power, the only
standard which the legislature is required to prescribe
for the guidance of the administrative authority is that
the rate be reasonable and just.
- When administrative agency concerned establishes a
rate, its act must both be non-confiscatory and must
have been established in manner prescribed by the
legislature, OTHERWISE – unconstitutional.
- In the exercise of said power – the agency is limited by
the requirements of PUBLIC SAFETY, PUBLIC
INTEREST, REASONABLE FEASIBILITY, AND
REASONBLE RATES.
Rate fixing: quasi-legislative or quasi-judicial; when hearing
required
- If it is in the exercise of legislative- notice and hearing
is not required
- If it is in the exercise of judicial – notice and hearing is
required
In the exercise of legislative
- When rules or rates are meant to apply to all
enterprises of a given kind throughout the Philippines.
In the exercise of judicial
- When rules or rates apply exclusively to a named
person or entity and are predicated upon finding of
facts, on the basis of which the rules or rates are based
Power to fix rate cannot be re-delegated
- The power delegated to an admin. agency to fix rate
cannot, in the absence of law authorizing it, be
delegated to another.
Contemporary Construction
Administrative rule and interpretation distinguished
- When an administrative agency promulgates rules and
regulations , in the exercise of its rule-making power
delegated to it by the legistlaure, it “makes new law
with force and effect of a valid law
- While, when it renders an opinion or gives a statement
of policy, it merely interprets a pre-existing law
- An administrative interpretation of the law is at best
merely advisory, for it is the courts that finally
determine what the law is
- Rules and regulations when promulgated in pursuance
of the procedure or authority conferred upon the
administrative agency by law, partake of the nature of
a statute, and compliance therewith may be enforced
by a penal sanction provided in the law
- A rule is binding on the courts so long as the procedure
fixed for its promulgation is followed and its scope is
within the statutory authority granted by the
legislature, even if the courts are not in agreement with
the policy stated therein or its innate wisdom.
Executive Construction
- Construction placed upon the statute by an executive
or administrative officer called upon to execute or
administer such statute
3 types of executive interpretations of the law
1. The construction by an executive or administrative officer directly
called to implement the law.
- Eg. Circulars, directives, opinions or regulation is an
express interpretation
2. The construction by the secretary of justice in his capacity as the
chief legal adviser of the gov’t.
3. Interpretation handed down in adversary proceeding in the form of
ruling by an executive officer exercising quasi-judicial power.
Forms of interpretations
- The rule is that the formal or informal interpretation or
practical construction of an ambiguous or uncertain
statute or law by the executive department or other
agency charged with its administration or enforcement
is entitled to consideration and highest repect from the
courts, and must be accorded appropriate weight in
determining the meaning of the law
- When an administrative agency renders an opinion or
issues a statement of policy, it merely interprets a pre-
existing law and the administrative interpretation is at
best advisory for it is the court that finally determine
what the law means.
Basically: interpretations handed down by admin agency, not
controlling for it is the court to finally determine, but it is accorded
with highest respect.
Publication is not required
- Rules which are merely interpretations of the law or of
the regulations issued to implement the law need not
be published to be effective, said interpretations not
being considered ass “law”
- Internal rules concerning the personnel of the
administrative agency and legal opinions, which are at
best advisory, need not be published.
Weight accorded to contemporaneous construction
- Under 1973 constitution, contemporaneous
construction is entitled to great weight and respect in
the interpretation of a statute.
- An administrative construction is not necessarily binding
upon the courts. An action of an administrative agency
may be disturbed or set asided by the judicial dept. if
there is an error of law, or abuse f power or lack of
jurisdiction or grabe abuse of discretion clearly
conflicting with either the letter or spirit of a legislative
enactment.
Construction of rules and regulations
- An administrative body has the power to interpret its
own rule and such interpretation becomes part of the
rule itself. Unless shown to be erroneous, unreasonable
or arbitrary, such interpretation entitled to recognition
and respect from courts, as no one is better qualified to
interpret the intent of the regulation than the authority
that issued it
Reason why contemporaneous construction is given much
weight
- Executive officials are presumed to have familiarized
themselves with the considerations pertinent to the
meaning and purpose of the law, and to have formed
an independent, conscientious and competent expert
thereon.
When contemporaneous construction disregarded
- The court may disregard contemporaneous
construction, where there is no ambiguity in the law,
where the construction is clearly erroneous, where
strong reason to the contrary exists, and where the
court has previously given a statute a different
interpretation.
o Eg. Policy instructions of the Secretary of
Labor adding another group of employees as
excluded from those entitled to holiday pay
when the law itself did not so exclude them is
void.
o An admin. interpretation which diminishes
the benefits of labor more than what the
statute delimits or withholds is ultra vires.
Erroneous Construction creates no rights
- As a rule, erroneous construction creates no vested
right on the part of those who relied upon and followed
such construction. A vested right may not arise from a
wrong interpretation of a law by an administrative
officer whose primary duty is to enforce and not to
construe the law.
- The gov’t is never stopped by the mistake or error on
the part of the its agents
- Consequently, those who benefited from the said
construction may not prevent correction of such
construction, nor excuse themselves from complying
with the construction as corrected.
-
Quasi –Judicial Power
DEFINITION
Quasi-Judicial
- Actions or discretions of public administrative officers or
bodies required to investigate facts, or ascertain the
existence of facts, hold hearings and draw conclusions
from them, as a basis for their official action and to
exercise discretion of a judicial nature.
Quasi-Judicial body
- organ of gov’t which its basic function is to adjudicate
claims and/or determine rights, and unless its decision
reasonably appealed to the proper reviewing authority,
the same attains finality and becomes executory.
Public prosecutor: a quasi-judicial officer because of the nature of his
function
BUT: his duty of conducting preliminary investigation to
determine the existence of probable cause to file an information in
court and to prosecute the accused is EXECUTIVE IN NATURE not
quasi-judicial.
Santiago vs. Bautista
- Issue: WON the determination by a committee as who
should be ranked first, second and third honors among
graduating pupils is a quasi-judicial power as to be
subject to judicial review by petition for certiorari?
- HELD: NO. Judicial action is an adjudication upon the
rights of parties who in general appear or are brought
before the tribunal by notice or process, and upon
 whose claims some decision or judgment is rendered. It
implies impartialiy, disinterestedness, a weigh of
adverse claims, and is inconsistent with discretion on
the one hand – for the tribunal must decide according
to law and the rights of parties – or with the dictation
on the other; for in the first instance it must exercise its
own judgment under the law, and not act under a
mandate from another power.
State ex. Al Board of Commissioners of St. Louis Country, et al. vs.
Dunn
- Judicial function is to determine what the law is and
what the legal rights of parties are, with respect to a
matter in controversy; and whenever an officer is
clothed with that authority, and undertakes to
determine whose questions, he acts judicially
Take note: Before a tribunal, board, or officer may exercise judicial or
quasi-judicial acts, it is NECESSARY that there be a LAW that gives rise
to some specific rights of persons or property under which adverse
claims to such rights are made, and the controversy ensuing therefrom
is brought, in turn, before the tribunal, board or officer clothed with
power and authority to determine what that law is the thereupon
adjudicate the respective rights of the contending parties
Quasi-Judicial adjudication
Resolution of controversies is the raision d’etre of courts
1. The ascertainment of all the material and relevant facts from the
pleadings and from the evidence adduced by the parties
2. After the determination of facts has been completed, by the
application of the law thereto to the end that the controversy may be
settled authoritatively, definitely and finally
Quasi-Judicial agencies in the exercise of quasi-judicial power
1. Receives evidence
2. Ascertain the facts therefrom
3. Determines what the law is and what the legal rights of
parties are
4. On the basis all these decides the controversy and
renders judgment thereon
Distinguished from administrative function
- An administrative body, like the office of the public
prosecutor, tasked by law to determine whether or not
probable cause exists to warrant the filing in court of
criminal charges for violation of a penal statute and to
handle its prosecution is not a quasi-judicial body.
- It is still an administrative body exercising a function
which is principally ADMINSTRATIVE or EXECUTIVE in
nature.
Distinguished from quasi-legislative functions.
- Rules and regulations of general applicability issued by
the administrative body to implement its purely
administrative policies and functions
- In quasi-legislative function – notice and hearing is not
required
- In quasi-judicial function – notice and hearing is
required
- Former – judicial action to question a decision in the
exercise of such function – CA
- Latter – judicial action to question to a decision in the
exercise of such function – RTC
Reason for creation of quasi-judicial agencies
- As a result of the growing complexity of modern
society,
- Specialized in the particularly fields assigned to them,
they can deal with problems thereof with more
expertise.
- The need for special competence and experience has
been recognized as essential in the resolution of
complex or specialized character and because of a
companion recognition that the dockets of our regular
courts have remained crowded and clogged.
Voluntary arbitrator a quasi judicial officer
Arbitration
- the reference of a dispute to an impartial third person
for the determination on he basis of evidence and
arguments presented by the parties who have bound
themselves to accept the decision.
Voluntary Arbitration
- the referral of a dispute by the parties pursuant to a
voluntary arbitration clause or agreement to an
impartial third person or panel for a final resolution.
Involuntary Arbitration
- one compelled by the gov’t to accept the resolution of
the dispute through the arbitration of a third party.
TAKE NOTE: Both cases acquire the status of a quasi-judicial agency
and APPEALABLE to CA (petition for review[rule 43])
- The voluntary arbitrator makes the award or decision
which becomes final after certain period from the
receipt of the copy of the award or decision by the
parties.
JURISDICTION
DEFINITION
- Two latin words “juris” and “dico” which means “ I
speak by the law”
- The power or capacity conferred by the constitution or
by law to a court or tribunal to entertain, hear, and
determine certain controversies and render judgment
thereon.
1.) Jurisdiction over the subject matter
- refers to nature of cause of action and of the relief sought,
which is vested by law and which is not acquired by consent or
acquiescence of the parties, nor by the unilateral assumption thereof
by a tribunal
- neither can it be fixed by the will of the parties, nor can it
be acquired through , or waived, enlarged or diminished by, any act or
omission of the parties, nor can it be conferred by acquiescence of the
court or tribunal
2.) Jurisdiction over the person of the petitioner or plaintiff
- acquired by the latter’s filing the iniatory pleading and
paying the required docket or filing fees
3.) Jurisdiction over the person of the respondent or defendant
- acquired by the service of summons or by his voluntary
Rules subject to supreme court modification
submission to the authority of the court or tribunal.
Extent of jurisdiction
subject to alteration or modification by SC
- Jurisdiction to hear and decide such causes is granted
by the constitution or by the statutes, and unless a
increasing the appellate jurisdiction of the SC as provided in this
jurisdiction on a specific matter has been clearly
constitution without its advice and concurrence
conferred by Congress upon a quasi-judicial agency,
the latter cannot exercise it and the same remains with
the courts under their constitutionally conferred judicial
power
- Administrative body to which quasi-judicial power has
been delegated is a tribunal of limited jurisdiction and
as such it could only wield such powers as are
specifically granted to it by its enabling statute
Technical rules not applicable
Take note: The power granted by law to an administrative agency
to issue rules and regulations, and procedures in the execution and
implementation of its assigned task includes the issuance of a rule
governing appeals to the office of the president, EVEN IF THE
ENABLING LAW DOES NOT PROVIDE FOR THE REMEDY TO APPEAL,
and failure to appeal from decision of the administrative agency
precludes the aggrieved party from seeking judicial recourse.
Estoppel to deny jurisdiction
1. An aggrieved party appealed an adverse decision to a
higher administrative body, such as the office of the
President, he cannot thereafter challenged the jurisdiction of
the appellate body to decide the appealed case.
2. A party cannot invoke the jurisdiction of a court to secure
affirmative relief against his opponent and after failing to
obtain such relief, repudiate or question that same
jurisdiction. A party cannot involve jurisdiction at one time
and reject it at another in the same controversy to suit its
interest and convenience.
Agency
Party cannot take inconsistent positions.
- A party or litigant cannot take a position in court
different from that which he took before an
administrative body; issues not raised in the lower
court cannot be raise for the first time on appeal
ADMINISTRATIVE PROCEDURE
Rules of procedure, generally.
- The constitution empowers quasi-judicial agencies to
issue their own rules of procedure. It provides that
rules of procedure of quasi judicial bodies remains
effective unless disapproved by supreme court
- Even in absence of such constitutional provision, or
even when the law creating the agency is silent on that
matter, a quasi-judicial body has the implied power to
promulgate its rules of procedure.
- Rules of procedure issued by quasi-judicial bodies must
not diminish, increase or modify substantive rights
- Rules of court are suppletory to rules of procedure of
quasi-administrative agencies.
- Absence or deficiency of the latter must be filled up
with the former.
-ALL procedural rules (quasi-judicial agencies or law) are
- Article VI, sec. 30 of constitution: NO law shall be passed
First Lepanto Ceramics, Inc. vs. CA
- Issue raised whether any appeal decision of the board
of investment should be directly taken to the SC
pursuant to sec. 78 of omni. Investment code “all
appeals shall be filed directly with SC..” – NOT
EFFECTIVE.
- Technical rules of procedure and of evidence prevailing
in courts of law and equity are not controlling in
administrative proceedings.
- Technical rules or procedure are not strictly enforced,
and due process of law in the strict judicial sense is not
indispensable. It is sufficient that the substantive due
process requirement of fairness and reasonableness be
observed.
- The rules that an administrative agency exercising
quasi-judicial power is not bound by technical rules of
procedure and evidence should not be so interpreted as
to dispense with the fundamental and essential right of
due process, such the opportunity to be heard and
the existence of substantial evidence to support
its decision.
- It is a settled “principle that administrative rules of
procedure should be construed liberally in order to
promote their object and to assist the parties in
obtaining just, speedy and inexpensive determination of
their respect claims and defenses.
- includes any department, bureau, office, commission,
authority or officer of the national gov’t authorized by
law or executive order to make rules, issue licenses,
grant rights or privileges, and adjudicate cases;
research institutions with respect to licensing functions;
gov’t corporations with respect to functions regulating
private rights, privilege, occupation or business; and
 officials in the exercise of disciplinary power as
provided by law.
Justiciable Controversy; contested case
- One instituted by and against parties having interest in
the subject matter appropriate for judicial
determination predicated on a given state of facts.
Contested case
- Means any proceeding, including licensing, in which
legal rights, duties or privileges asserted by specific
parties as required by the constitution or by law to be
determined after hearing.
- When the grant, renewal or cancellation of a license is
required to be preceded by notice and hearing, it
becomes a contested case
License
- includes whole or any part of any agency permit,
certicate, passport, clearance, approval , registration,
charter, membership, statutory exemption or other
form of permission, or regulation of the exercise of a
right or privilege.
Licensing
- includes agency process involving the grant, renewal,
denial, revocation, suspension, annulment, withdrawal,
limitation, amendment, modification or conditioning of
license.
- Except in cases of willful violation of pertinent laws,
rules and regulations or when public safety requires
otherwise, no license may be withdrawn, suspended, or
annulled without notice and hearing.
Instituion of proceedings
- In contested cases, where claims are asserted and
reliefs are sought, the proceedings are instituted by the
filing of a complaint or petition.
Rules against non forum shopping applies to quasi judicial proceedings
The complaint should contain a certification under
oath that the complainant:
a.) Has not therefore commenced any action or filed any
claim involving the same issues in any court, tribunal, or
quasi-judicial agency and to the best of his knowledge, no
such other action or claim is pending therein.
b.) if there is such other pending action or claim, a complete
statement of the present status thereof;
c.) if he should therafter learn that the same or similar
action or claim has been filed or is pending, he shall report
that fact within 5 days therefrom to the court wherein his
aforesaid complaint or iniatory pleading had been filed.
EX parte/ informal application
- May be iniated by mere latter sent by a complainant
egs. Application for permits or licenses or for renewal
thereof.
- These proceedings become contested when the
application is opposed or denied, or such letter, after ex
parte investigation, show the need for the person
complained of to be given opportunity to be heard on
that matter.
FORUM SHOPPING
- Improper practice of going from one court to another in
the hope of securing of a favorable relief in one court
which another court has denied or the filing of
repetitious suits or proceedings in different court
concerning substantially the same subject matter.
- A party seeks a favorable opinion in another forum,
other than appeal or certiorari.
Test to determine forum shopping
- Whether the elements of litis pendentia are present or
whether final judgment in one case will amount to res
judicata in the other.
- In other words, if a party pursues the same cause of
action, involving the same issues, parties and subject
matter, in two different fora, a lawyer may be guilty of
forum shopping.
- Identify of parties or interests represented, rights
asserted and relief sought in different tribunals.
HOWEVER, where different groups have different
interests, then their filing different petitions in the same
court, where they seek relief, does not constitute forum
shopping.
Acquistion of jurisdiction
1. Acquire the jurisdiction over the person of the petitioner
- by the latter’s voluntary appearance as by his filing a
complaint, petition or initiatory or appropriate pleading and
paying the filing fees.
2. Acquire the jurisdiction over the person of the respondent
- by latter’s voluntary appearing or submitting to the body
or by service of summons upon him.
Take note: Appearance may be made not only by actual appearance
but also by the submission of pleading with the tribunal
Summons – writ by which a respondent is notified of the action against
him and is asked to file his answer thereto.
Pre trial Conference
- It is held before the contested case is scheduled for
hearing
- It is a possibility of an amicable settlement; the
simplification of the issues; the possibility of obtaining
stipulations or admission of facts and of documents to
avoid unnecessary proof; advisability of referring the
case to arbitration; and the propriety of rendering
judgment on the pleadings or a summary judgment or
of dismissing the action should a valid ground therefore
be found to exist
Default in administrative case
“Default” – failure to file a responsive pleading, failure
to appear in any hearing to present evidence, in any of
which instances the hearing may proceed in his
absence without violating the party’s right to due
process.
Administrative proceeding; hearing
1. Taking and evaluation of evidence
2. Determing facts based upon the evidence presented;
3. Rendering an order or decision supported by the facts
proved
Take note:
-The parties shall be given opportunity to present evidence
and argument on all issues. The “notice and hearing” are
procedural requirements of due process, the absence of
which will render the decision in a contested case null and
void. The essence of procedural due process in admin
proceedings is the opportunity to be heard.
- The motion for reconsideration constitutes a sufficient
opportunity to be heard just as an appeal be taken from the
decision accords the losing party the opportunity to present
his side. Any such procedural step cures the defect of lack of
previous notice, except when the other due process
requirement i.e presence of substantial evidence as basis of
the decision , cold neutrality of an impartial judge on the
part of the quasi-judicial officer, competent and impartial
tribunal, have not been complied with
- Hearing does not necessarily require a trial type
presentation of evidence. To be heard does not mean
verbal arguments before tribunal; it can be through written
pleading. However where it appears that there are issues of
fact which cannot be decided without trials of the case on
the merits, one must be held.
SUBPOENA and CONTEMPT of court
Subpoena
- a process directed to a person requiring him to attend
and testify at the hearing or trial of the action or at any
investigation conducted under the laws of the country.
Subpoena duces tecum
– an order to produce specified documents and the same is
issued upon application of a party by showing clear and
unequivocable proof that the documents sought to be
produced contain evidence relevant and material to the issue
before the agency
In case of refusal to obey said subpoenas – punish for contempt or
impose penalty
Take note: The Authority to issue subpoena and subpoena duces
tecum can only be exercised by an administrative agency in its QUASI-
JUDICIAL POWER! Not quasi-legislative or ministerial function
EVIDENCE
Affidavits of witness
- may not be considered unless the affiants are put in
the witness stand for cross-examination on their
affidavits, except when the parties waive the same
expressly or impliedly
Matters of judicial notice have 3 material requisites
1. It must be one of common and general
knowledge
2. It must be well and authoritatively settled and
not doubtful or uncertain
3. It must be known to be within the limits of the
jurisdiction of the tribunal
Take note: To assure compliance with the requisites of judicial notice,
the rules require that the quasi-judicial tribunal or agency shall notify
the parties of the facts take judicial notice, and shall afford them the
opportunity to contest the facts so noticed.
Heirarchy of evidence values
1. Proof beyond reasonable doubt
2. Clear and convincing evidence
3. Preponderance of evidence
4. Substantial evidence
Substantial evidence
- Such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion
- It means such evidence which affords substantial basis
from which the fact in issue can be reasonably inferred.
Delegation of Quasi-Judicial Power
- The power conferred upon an administrative agency to
issue rules and regulations necessary to carry out its
functions has been held to be an adequate source of
authority to delegate a particular function, unless by
express provision of the law or by implication it has
been withheld.
Delegation to receive evidence
- A quasi-judicial body may delegate the function to
receive evidence and perform any and all acts
necessary for the resolution of factual issues falling
within its jurisdiction.
- The delegate merely reports the facts found and the
quasi-judicial bodyretain the power to approve or reject
the report and to decide the case.
- The rule that requires an administrative officer to
exercise his own judgment and discretion does not
preclude him from utilizing; as a matter of practical
administrative procedure, the aid of subordinates to
investigate and report to him the facts, on the basis of
which the officer makes his decision.
(Pages 135-202)
D. DUE PROCESS IN QUASI-JUDICIAL PROCEEDINGS
GENERAL
Two concepts of due process:
1.Substantive-requires that the law itself, not merely the procedures
by which the law would be enforced is fair, reasonable and just.
2.Procedural-method or manner by which the law is enforced.
Two basic rights of procedural due process
1. Notice and Hearing
2. Guarantee of being heard by an impartial and competent
tribunal.
Cardinal primary requirements of due process in administrative
proceedings are:
1. the right to a hearing which includes the right to present one’s case
and submit evidence in support thereof
2. the tribunal must consider the evidence presented
3. the decision must have something to support itself
4.the evidence must be substantial, and substantial evidence means
such evidence as a reasonable mind might accept as adequate to
support a conclusion
5. the decision must be based on the evidence presented at the
hearing, or at least contained in the record and disclosed to the parties
affected
6. the tribunal or body of any of its judges must act on its own
independent consideration of the law and facts of the controversy, and
not simply accept the views of subordinate
7. the board or body should in all controversial questions, render its
decision in such manner that the parties to the proceeding can know
the various issues involved, and the reason for the decision rendered
8. the officer or tribunal conducting the investigation must be vested
with competent jurisdiction and so constituted as to afford a person
charged administratively a reasonable guarantee of honesty and
impartiality
-What due process abhors is not lack of previous notice but the
absolute lack of opportunity to be heard, the presence of a party is not
always the corner stone of due process.
Administrative due process include:
1. the right to notice, be it actual or constructive, of the institution of
the proceeding that may affect a person’s legal rights.
2. reasonable opportunity to appear and defend his rights, introduce
witnesses and relevant evidence in his favor
3. a tribunal so constituted as to give him reasonable assurance of
honesty and impartiality, and one of competent jurisdiction.
4. a finding or decision by that tribunal supported by substantial
evidence presented at the hearing, or at least contained in the records
or disclosed to the parties affected.
The principle of due process furnishes a standard to which
governmental action should conform in order to impress it with the
strand of validity. Fidelity to such standard must of necessity be the
overriding concern of the government agencies exercising quasi-
judicial functions.
In quasi-judicial proceedings, where it appears that there are issues of
fact which cannot be decided without a trial of the case on the merits,
one must be held. The rule is where and adjudicative fact is at issue, a
trial-type hearing ought to be held.
-COLD NEUTRALITY OF IMPARTIAL JUDGE.-
A critical component of due process is a hearing before and impartial
and disinterested tribunal. Ingrained is the rule that every litigant is
entitled to nothing less that the cold neutrality of an impartial judge.
Instances:
-a hearing officer in a contested case cannot act as prosecutor in the
same case.
-an admin officer who has rendered a decision in a contested case
cannot review, after he has been promoted to a higher position with
review functions, the decision in the said case.
-in order that the review of the decision of a subordinate officer might
nit turn out to be a farce, the reviewing officer must perforce be other
than the officer whose decision is under review; otherwise, there could
be no different view or there would be no real review of the case.
-IMPARTIAL AND COMPETENT TRIBUNAL.-
One of the indispensable requirements of due process in administrative
proceeding is that the tribunal conducting the investigation:
1.must be vested with competent jurisdiction
2. constituted as to afford a person charged administratively a
reasonable guarantee of honesty and impartiality.
-NOTICE AND HEARING-
Due process as guaranteed by the constitution extends to admin
proceedings, the foremost requirement of which is the right to a
hearing, which include the right to present one’s case and to submit
evidence in support thereof. The need for notice and opportunity to be
heard is the heart of procedural due process.
A violation of any of the cardinal requirements of due proceedings
renders any judgment or order issued therein null and void and can be
attacked in any appropriate proceeding.
a. PRIOR NOTICE AND HEARING REQUIRED
In administrative case, the general rule is that prior notice and hearing
are necessary only where the law so requires.
The inquiry should therefore be into the enabling statute which clothes
an administrative agency or officer with certain duties and
responsibilities in the discharge of which some person may be
adversely affected.
If the statute requires prior notice and hearing, then the admin agency
or officer must comply with the due process requirements as a
condition for the validity of its acts.
“ In any contested case all parties shall be entitled to notice and
hearing. The notice shall be served at least five days before the date
of the hearing and shall state the sate, time and place of hearing.”
Ex. The Sandiganbayan can preventively suspend a public official
charged with a crime before it, there must first be a hearing to
determine the validity of the information, and a finding that the
information is valid makes it mandatory for the court to preventively
suspend the accused for a period not exceeding ninety days.
b. WHEN PRIOR HEARING NOT REQUIRED
As a general rule, where what is exercised is police power duly
delegated to an administrative officer, or where what is sought to be
prevented or achieved requires immediate action for the public good or
interest, prior notice or hearing is not necessary for the validity of the
action taken, so long as the aggrieved party is subsequently accorded
hearing on the action taken, by the administrative agency setting the
case for hearing or upon motion or petition by the aggrieved party.
Ex. Withdrawal of license
Prior notice not required in the exercise of police power.
--Where the act questioned results from the exercise of police power
of the state, prior notice and hearing are not required, unless the
applicable law so expressly provides. Considerations of procedural due
process cannot outweigh the evil sought to be prevented by the
exercise of police power.
Ex. Abatement of a public nuisance per se does not require prior
hearing.
Twin rights of notice and hearing may be considered dispensable in
certain instances:
1. In proceedings where there is an urgent need for immediate action,
like the summary abatement of a nuisance per se.
2. where there is a tentativeness of administrative action, that is ,
where the respondent is not precluded from enjoying the right to
notice and hearing at a later time without prejudice to the person
affected, such as the summary distraint and levy nof the property of a
delinquent taxpayer, and the replacement of a temporary appointee
3.Where the twin rights have previously been offered but the right to
exercise them had not been claimed.
Notice minimum requirement in summary dismissal.
In summary proceedings, which are authorized by law to be instituted
against erring police officers, the filing of charges which must be made
known to the respondent and the allowance of reasonable opportunity
to respondent to answer the charges constitute the minimum
requirements of due process, it is mandatory that charges be specified
in writing and that the affidavits in support thereof be attached to the
complaint because these are the only wyas by which evidence against
the respondent can be brought to his knowledge.
Notice and hearing in rate-fixing.
The issuance of a fixing rate order, which is issued by and
administrative agency in the exercise of its quasi-judicial power
requires notice and hearing. Where a rate fixing rule issued by an
administrative body applies to a particular person or entity. However if
it is in the exercise of their lawmaking function and it affects all
persons or entity then notice and hearing can be dispensed with.
Prior notice in issuance of ex parte or preliminary order
As a general rule, provisional reliefs, such as temporary restraining
orders, cease or desist orders, may be granted by quasi-judicial
agencies without prior notice and hearing, Similarly, in disciplinary
proceedings, the disciplining authority may preventively suspend the
officer or employee charges with a grave offense without prior notice
or hearing, the preventive suspension not being a penalty.
OPPORTUNITY TO BE HEARD
Essence of due process in administrative proceedings is the
opportunity to explain one’s side or a chance to seek reconsideration
of the action or ruling complained of.
As long as the parties were given the opportunity to be heard before
the judgment was rendered, the demands of due process were
sufficiently met.
Even if there is notice or opportunity to be heard, which is said to be
the essence of due process, there is still violation of due process which
renders the decision or ruling of the administrative agency invalid,
where:
1. there is no evidence to support the decision
2. where evidence other than that presented during the proceedings or
disclosed in the records was taken into account in rendering the ruling
3. where the quasi-judicial body or officer did not possess the cold
neutrality of an impartial judge, as when he acted as investigator
4. where the administrative officer or body acted with grave abuse of
discretion amounting to lack or excess of jurisdiction
Where there is no denial of due process
A party who has been notified of the hearing but failed to attend the
same or refrained from participating in the agency proceedings cannot
complain that he has been denied due process.
Motion for reconsideration cures procedural due process
defects; exceptions
the general rule is that denial of procedural due process cannot be
successfully invoked by a party who has been heard on his motion for
reconsideration.
His motion for reconsideration has the effect of curing whatever
irregularity has been committed in the proceedings.
The rule that the filing of a motion for reconsideration of the decision
or ruling against a party cured the defect in the lack of prior notice and
hearing as to preclude the party from claiming denial of due process
assumes that the other requirements of due process have been
complied with. If any of the other requirements has not been
observed, the rule does not apply, as when the evidence against the
party is not set forth in the record of the case, one of the
indispensable requirements of due process being that the decision of
an administrative agency must be rendered on the evidence contained
in the record and disclosed to the party affected and the motion for
reconsideration not being sufficient to cure the fatal defect.
Substantial evidence as basis of decision.
Another cardinal requirement of due process in administrative
adjudication is that the decision must be rendered on the evidence
presented at the hearing or at least contained in the record and
disclosed to the parties affected.
The decision must be supported by substantial evidence and absent
such would render the decision void.
Right to counsel, not a due process requirement
While investigations conducted by an administrative body may at times
be aking to a criminal proceeding, the fact remains that under the
existing laws, a party in an administrative inquiry may or may not be
assisted by counsel, irrespective of the nature of the charges and of
the respondent’s capacity to represent himself, and no duty rests on
such body to furnish the person being investigated with counsel.
The right to counsel is not indispensable to due process unless
required by the Constitution or the law.
In administrative proceedings, the essence of due process is simply the
opportunity to explain one’s side.
E. DECISION, APPEAL AND JUDICIAL REVIEW
Decision in administrative law-the whole or any part of the final
disposition, not of an interlucotory character, whether affirmative,
negative, or injunctive in form, of a quasi-judicial agency in any
matter, including licensing, rate fixing and granting of rights and
privileges.
Period to render decision.
Section 14 of Book VII of the 1987 Administrative code provides that
the “agency shall decide each case within thirty days following its
submission.”
A case is deemed submitted for decision after both parties shall have
concluded presentation of their evidence or upon the filing of their
respective memoranda, if required or if they so ask and the same be
granted.
A statute requiring rendition of judgment within a specified time is
generally construed to be merely directly, so that non-compliance with
it does not invalidate the judgment on the theory that if the statute
had intended such result it would have clearly indicated, but the failure
of the administrative or quasi-judicial officer to decide the case within
the prescribed period may render him administratively liable therefore,
as he is enjoined by the code of conduct for public officers to promptly
act on all matters before him.
Forms of decisions
The fact that quasi-judicial agencies are not courts of justice does not
excuse them from the requirement that their decisions should clearly
and distinctly express the facts and the law on which they are based.
Sec. 14, Book VII of the 1987 Administrative Code requires that “Every
decisions rendered by the agency in a contested case shall be in
writing and shall state clearly and distinctly the facts and the law on
which it is based.”
Compliance by quasi-judicial tribunals or agencies with the
requirements of decision-writing becomes especially important in
appealable decisions because decisions of quasi-judicial bodies are
appealable to the Court of Appeals by means of a petition for review,
in which the appellant is entitled to raise questions of fact, or of law,
or both.
Publication of decisions.
The law requires that every agency shall publish and make available
for public inspection all decisions or final orders in the adjudication of
contested cases.
Relief and sanction.
Relief-includes the whole or part of any grant of money, assistance,
license, authority, privilege, exemptions, exception, or remedy;
recognition of any claim, right, immunity, privilege, exemption or
exception; or taking of any action upon the application or petition of
any person.
Sanction-includes the whole or part of a prohibition, limitation or other
condition affecting the liberty of any person; the withholding of relief;
the imposition of penalty or fine; the destruction, taking, seizure or
withholding of property; the assessment of damages, reimbursement,
restitution, compensation, cost, charges or fees; the revocation or
suspension of license; or the taking of other compulsory or restrictive
action.
Finality of decisions.
The decision of the agency shall become final and executor fifteen
days after the receipt of a copy thereof by the party adversely affected
unless within that period an administrative appeal or judicial review, if
proper, has been perfected. One motion for reconsideration may be
filed, which shall suspend the running of the said period.
An admin agency may alter, modify or reverse its decision with or
without a motion for reconsideration, only before the decision becomes
final and executor. The established principle is that once a decision
becomes final and executor, it is removed from the power or
jurisdiction of the quasi-judicial body which rendered it to further alter
or amend, much less revoke it.
Promulgation of decision.
A decision of an administrative officer or agency, in the exercise of
quasi-judicial power, becomes binding only after it is validly
promulgated.
Promulgation-means the delivery of the decision to the clerk of court
for filing and publication.
If at the time of the promulgation of a decision or resolution, a judge
or a member of a collegiate court or quasi-judicial agency had earlier
signed or registered his vote for the decision, has vacated his office,
his vote is automatically withdrawn or cancelled.
Notice of decision
The parties are entitled to be informed of the decision rendered by the
quasi-administrative agency. If a party is represented by counsel, the
notice of the decision must be made upon counsel. It is well settled
that notice to counsel is notice to client. On the other hand, notice to
client does not mean notice to counsel.
Decision by collegiate body; vote required.
A collegiate body can validly decide only when it formally acts as such.
A decision by a director for the collegiate body is void. Just as the
decision of only one member thereof is void where a quorum of two is
required
Commission -a body composed of several persons acting under lawful
authority to perform some public service. It is also defined as a board
or committee of officials appointed and empowered to perform certain
acts or exercise certain jurisdiction of a public nature or service.
Where the law creating a collegiate body provides that its decision be
arrived by “majority vote”, such majority can validly render a decision.
For all practical purposes, the majority becomes the full board.
A member has no authority promulgate a decision for the body, nor
can the same be ratified by its chairman, not being the body itself,
because ratification cannot validate an act void ab initio.
The powers and duties of boards and other collegiate bodies may not
be exercised by individual members separately.
Final decisions not reviewable.
One motion for reconsideration is allowed. A final resolution or decision
of an administrative agency also binds the Office of the President even
if such agency is under the administrative supervision and control of
the latter.
Administrative decisions must end sometime, as fully as public policy
demands that finality be written on judicial controversies.
Appeal in contested cases.
An appellant should comply with all the requirements for perfecting an
appeal applicable to specific cases in particular quasi-judicial agencies,
otherwise his appeal will be dismissed or denied due course. The
reason is that appeal is a purely statutory right and he who avails of it
must strictly comply with all its requisites.
The perfection of appeal in the manner and within the period
prescribed by law is not only mandatory but jurisdictional. If the
appeal is not perfected, the decision becomes final and executor and
can no longer be reviewed by a higher administrative agency or by the
courts.
Administrative review.
Review-reconsideration or re-examination of a decision or ruling of a
subordinate officer by a superior officer or higher administrative
agency.
Review by a superior officer or department head may be undertaken
motu proprio if the decision has not yet become final, in the exercise
of his control power over the acts of his subordinate.
The general rule is that evidence not formally submitted during the
hearing before an administrative agency may not be submitted, for the
first time, on appeal and the reviewing administrative body may not,
therefore, consider it. One exception to this rule is that when an issue
was not raised before the lower administrative agency and evidence on
connection therewith was not accordingly presented, but which issue
was resolved by the latter in its decision, the adverse party, on appeal,
was entitled to present rebuttal evidence on said issue and the refusal
of the reviewing agency to consider such rebuttal evidence on the
ground that the same was not formally offered during the hearing
constituted grave abuse of discretion and left decision on appeal
without substantial basis to support it.
Presumption of legality.
The legal presumption that official duty has been duly performed is
particularly strong as regards to acts of quasi-judicial agencies in
connection with the enforcement of laws affecting particular fields of
activity, the proper regulation or promotion of which requires a
technical or special training, aside from a good knowledge and grasp
of the overall conditions relevant to said field.
There is no presumption of regularity of any administrative action
which results in depriving a taxpayer of his property through tax sale.
Finality of decision of appellate agency.
In any contested case, the decision of the appellate agency shall
become final and executor fifteen days after the receipt by the parties
of a copy thereof, unless a motion for reconsideration is seasonably
filed or a petition for review of such decision is filed with the Court of
Appeals within fifteen days from receipt of the decision or of the denial
of the motion for reconsideration. Only one motion for reconsideration
is allowed.
Res Judicata.
The doctrine of res judicata applies to decisions or orders of
administrative agencies that have become final. Such decisions or
orders are conclusive upon the rights of the affected parties as though
the same had been rendered by a court of general jurisdiction.
The rule which forbids the reopening of a matter once judicially
determined by competent authority applies as well to the judicial and
quasi-judicial acts of public, executive or administrative officers and
boards acting within their jurisdiction as the judgments of courts
having general judicial powers.
When res judicata disregarded.
When there are supervening events which make it imperative, in the
higher interest of justice, to modify said judgment to harmonize the
disposition with the prevailing circumstances, especially where no
private individual will be financially prejudiced by overturning the final
judgment.
The rule may also be overlooked where the same has been waived or
has not been timely raised as a defense, where the application of the
principle, under the particular facts obtaining, would amount to a
denial of justice or a bar to a vindication of a legitimate grievance.
The principle may be disregarded if its application would involve the
sacrifice of justice to technicality.
The principle does not operate between persons who, having been co-
parties in the first case, are opposing partied in the second case. The
exception to the rule is where the individual claims of such co-parties
in the first case were raised in issued, litigated and determined, res
judicata applies to such co-parties.
Power to issue writ of execution to enforce judgment.
GSIS vs. Civil Service Commission, the supreme court sustained the
power of the Civil Service Commission to order execution of its final
decision issued in the exercise of its quasi-judicial or adjudicatory
authority, as there is no law which denies it such authority.
“it would seem quite obvious that the authoryt to decide cases is
inutile unless accompanied by the authority to see that what has been
decided is carried out.”
Unless the law vesting quasi-judicial power to an agency provides
otherwise, the agency promulgating its decision has the implied power
to issue a writ of execution to enforce its decision.
CHAPTER 6
DOCTRINES OF PRIMARY JURISDICTION AND EXHAUSTION
OF REMEDIES
Doctrine of Primary Jurisdiction
If the case is such that its determination requires the expertise,
specialized skills and knowledge of the proper administrative bodies
because technical matters or intricate questions of facts are involved,
then relief must first be obtained in administrative proceeding before a
remedy will be supplied by the courts even though the matter is within
the proper jurisdiction of a court.
A plaintiff should first seek the relief in an administrative proceeding
before he seeks a remedy in court, even though the matter is properly
presented in court, which is within its jurisdiction
The court cannot or will not determine a controversy involving
question within the jurisdiction of an administrative tribunal prior to
the decision of that question by the administrative tribunal:
1) where the question demands administrative determination requiring
special knowledge.
2)where the question requires determination of technical and intricate
issues of facts
3)where uniformity of ruling is essential to comply with the purposes
of the regulatory statute administered.
-in such a case the judicial process is suspended pending referral of
such issues to the administrative body for its resolution.
Distinguished from exhaustion of administrative remedies.
Exhaustion of remedies applies where a claim is cognizable in the first
instance by the administrative agency alone, judicial interference being
withheld until the administrative process has run its course and the
agency action is ripe for review; while the doctrine of primary
jurisdiction applies where a claim is originally cognizable in the courts ,
the judicial process being suspended pending referral of certain issues
to the administrative agency for its views.
Exhaustion applies where a claim is cognizable in the first instance by
an administrative agency alone; judicial intervention is withheld until
the administrative process has run it’s course.
Primary Jurisdiction applies where a claim is originally cognizable in the
courts, and comes into play whenever enforcement of the claims
requires the resolution of issues which, under a regulatory scheme,
have been placed within the special competence of an administrative
body; in such a case the judicial process is suspended pending referral
of such issues to the administrative body for its views.
Ex. Of doctrine of primary jurisdiction is ARBITRATION LAW.
The principle of primary jurisdiction applies in cases filed with the trial
court, which suspends the proceedings until referral to the
administrative agency
The doctrine of exhaustion of administrative remedies is invoked in
petitions for certiorari filed with the Court of Appeals, or in few
instances in the trial court, which resolves the case on the merit,
where the case falls under any of the exceptions to the doctrine of
exhaustion of administrative remedies.
-As in the doctrine of exhaustion of administrative remedies, non-
compliance with the doctrine of primary jurisdiction is not
jurisdictional, and the failure to timely object thereto amounts to a
waiver thereof and justifies the court to proceed to conclusions.
Court proceedings should be suspended.
If the case has been filed in court, the plaintiff should suspend the
judicial proceedings until the matter shall have been threshed out by
the administrative agency which has been vested with authority to
resolve the same.
The doctrine of primary jurisdiction does not warrant a court to
arrogate unto itself the authority to resolve a controversy the
jurisdiction over which is initially lodged with an administrative body of
special competence.

One of the purposes of the doctrine of primary jurisdiction is not only
to give the administrative agency the opportunity to decide the
controversy by itself but also to prevent unnecessary and premature
resort to court.
The application of the doctrine of primary jurisdiction, however, does
not call for the dismissal of the case; it need only be suspended until
after the matters within the competence of the administrative agency
concerned are threshed out and determined.
Nevertheless, resort to the courts cannot be foreclosed on the theory
that courts are the guarantors of the legality of administrative action.
Where doctrine does not apply.
The doctrine of primary jurisdiction does not apply in any of the
exceptions to the doctrine of exhaustion of administrative remedies,
for while the two doctrine are different, they are interchangeably used
in their practical application by the courts, such that the exceptions in
one are applicable in the other.
The doctrine of primary jurisdiction assumes that the administrative
agency has jurisdiction to resolve the issue presented in accordance
with its enabling act. Where the administrative agency has no
jurisdiction, the doctrine does not apply.
B. DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE
REMEDIES.
Exhaustion of remedies generally.
As a general rule, recourse through the court action cannot prosper
until all the remedies have been exhausted at the administrative level.
When an adequate remedy has been provided within the executive
department of the government, but nevertheless, a litigant fails or
refuses to avail himself of the same, the court will decline to interfere.
This means that the aggrieved party must not merely initiate the
prescribed administrative procedures to obtain relief but must pursue
them to their appropriate conclusion before seeking judicial
intervention.
The party aggrieved by a decision of an administrative official should
first apply for review of such decision by higher administrative
authority before seeking judicial relief, otherwise this court suit may be
dismissed for prematurity or lack of cause of action.
Before a party can be allowed to invoke the jurisdiction of the courts of
justice, he is expected to have exhausted all means of administrative
redress afforded him. Where the enabling statute indicates a
procedure for administrative review, and provides a system of
administrative appeal, or reconsideration, the courts for reasons of
law, comity and convenience, will not entertain a case unless the
available administrative remedies have been resorted and the
appropriate authorities have been given opportunity to act and correct
the errors committed in the administrative forum.
The aggrieved party must not merely initiate the prescribed
administrative procedure to obtain relief, but must also pursue its
appropriate conclusion before seeking judicial intervention in order to
give that administrative agency an opportunity to decide the matter by
itself correctly and prevent unnecessary and premature resort to the
court.
If a remedy within the administrative machinery can still be resorted to
by giving the administrative officer concerned every opportunity to
decide on a matter that comes within his jurisdiction, then such
remedy should be exhausted first before the court’s judicial power can
be sought. The premature invocation of court’s intervention is fatal to
one’s cause of action.
Effect of failure to exhaust remedies.
The failure to observe the doctrine of exhaustion of administrative
remedies does not affect the jurisdiction of the court. The only effect
of non-compliance with the rule is that it will deprive the complainant
of a cause of action, which is a ground for a motion to dismiss. If not
invoked at the proper time, this ground is deemed waived and the
court can take cognizance of the case and try it.
Non-exhaustion of administrative remedies is a ground for a motion to
dismiss or is a defense which may be raised in the answer. If such
ground has not been raised in a motion to dismiss or in the answer to
the complaint, it is deemed waived.
Reasons for the rule.
The underlying principle of the rule rests on the presumption that the
administrative agency, if afforded a complete chance to pass upon the
matter, will decide the same correctly. If the error is rectified, judicial
intervention would then be unnecessary.
It provides a less expensive and more speedy solutions to disputes.
It also gives the administrative agency the opportunity to act and
correct the errors committed in the administrative forum. Courts may
decline to resolve a case on the ground of prematurity.
Another reason for the doctrine of exhaustion is the separation of
powers. The theory is that the administrative authorities are in a better
position to resolve questions addressed to their particular expertise
and that errors committed by subordinates in their resolution may be
rectified by their superiors if given a chance to do so.
Exceptions to the rule, generally.
The principle of exhaustion of administrative remedies is not an
ironclad rule. This doctrine is a relative one and its flexibility is called
upon by peculiarity and uniqueness of the factual and circumstantial
settings of a case. Hence, it is disregarded:
1) when there is a violation of due process
2)when the issue involved is purely a legal question
3)when the administrative action is patently illegal amounting to lack
or excess of jurisdiction
4)when there is estoppel on the part of the administrative agency
concerned
5)when there is irreparable injury
6)when the respondent is a department secretary whose acts as an
alter ego of the president hears the implied and assumed approval of
the latter
7)when to require exhaustion of administrative remedies would be
unreasonable
8)when it would amount to a nullification of a claim
9)when the subject matter is a private land in land cases or
proceedings
10) when the rule does not provide a plain and speedy and adequate
remedy
11)there are circumstances indicating the urgency of judicial
intervention
12) when no administrative review is provided;
13)where the rule of qualified political agency applies
14) when the issue of non-exhaustion of administrative remedies has
been rendered moot
15) failure of a high government official from whom relief is sought to
act on the matter.
The rule requiring exhaustion of administrative remedies applies only
where the agency concerned exercises judicial or quasi-judicial
functions. it does not apply in the exercise of its rule-making or
legislative power.
Not applicable where public interest requires immediate court
resolution.
The doctrine of exhaustion of administrative remedies may be
overlooked where public interest requires immediate court resolution
of the issue raised.
Not applicable where the administrative act is a nullity.
Where the acts of a quasi-judicial agency are patently illegal, the
doctrine of exhaustion of administrative remedies does not come into
play.
Not applicable where administrative remedy is not adequate.
The fact that the law is silent as to the remedy of appeal from a
decision of a department secretary on a specific matter to the
President does not mean that the President may not review the action
of the secretary.
Where the decision of the department secretary is by law, executor
after a certain fixed period, the aggrieved party need not exhaust
administrative remedy as an appeal to the President will not be as
sufficient, adequate and expeditious to grant him relief as a judicial
relief, such as a writ of preliminary injunction.
Not applicable where the judicial relief is required to prevent
violence.
The aggrieved party can immediately resort to court action by seeking
injunctive relief without awaiting the outcome of the administrative
case, for intertwined with the issue of boundary are the questions of
public order must transcend the administrative issue of conflict of
boundaries, and only the courts have the weapon to compel the
parties, temporarily or perpetually by means of injunction, to maintain
peace.
Not applicable where agency acted with no jurisdiction.
Exhausting such administrative remedies of appeal is not necessary
where the agency acted without jurisdiction or with grave abuse of
discretion in taking cognizance of a belated appeal from decision of a
lower level administrative body which had become final and thereafter
reversing it.
Not applicable where there is yet no administrative order.
It follows that there has to be some sort of decision, order or act,
more or less final in character, that is ripe for review and properly the
subject of an appeal to a higher administrative body; or office, for the
principle of exhaustion of administrative remedies to operate.
Not applicable where there is estoppels.
Where an administrative agency in its questioned order ruled or
implied that the aggrieved party may either accept its ruling or
question it in court, the agency in a court suit to challenge the same is
stopped from invoking non-exhaustion of administrative remedy to
defeat the court suit, as it led the aggrieved party to believe that only
a court ruling would be accepted by it.
Not applicable where there is urgency or irreparable damage.
The urgency of judicial intervention, as when a writ of preliminary
injunction is sought in which the petitioner has shown that there is
substantial controversy between the parties and the respondent is
committing and act or threatening the immediate commission of an act
that will cause irreparable injury or destroy the status quo of the
controversy before a full hearing can be had on the merits of the case.
Where resort to administrative remedies will be fruitless and
irreparable damage or injury will cause petitioner arising from the
immediate implementation of the administrative action sought to be
nullified, the doctrine of exhausting administrative remedies will not
apply.
Not applicable where the qualified political agency doctrine
applies.
The doctrine of qualified political agency, department secretaries are
alter egos or assistants of the President and their acts are presumed to
be those of the latter, unless disapproved or reprobated by him.
A party aggrieved by an order or decision of a department secretary
may directly file the appropriate action against the department
secretary’s action without violating the doctrine of exhaustion of
administrative remedies because his action, as the President’s alter
ego, deemed to be that of the President.
This doctrine of qualified political agency ensures speedy access to the
courts when most needed. There was no need then to appeal the
decision to the office of the President; recourse to the courts could be
had immediately.
It has been held that an aggrieved party affected by a decision of a
cabinet secretary need not appeal to the office of the President, and
he may file a petition for certiorari under Rule 65 of the Rules of Court,
without exhausting administrative remedy of appeal to the Office of
the President because the cabinet secretary is the alter ego of the
President.
Not applicable where issue is purely legal.
Where pure questions of law are raised, the doctrine of exhaustion of
administrative remedies does not apply because issues of law cannot
be resolved with finality by the administrative officer.
Although administrative determination of law is persuasive on courts
and carries it a strong presumption of correctness, nonetheless, the
interpretation and application of laws is the court’s prerogative.
Not applicable where administrative remedy is permissive.
The doctrine does not apply where, by the terms or implications of the
statue authorizing an administrative remedy, such remedy is
permissive only, warranting the conclusion that the legislature
intended to allow the judicial remedy even though the administrative
remedy has not been exhausted.
Not applicable where doctrine will result in nullification of
claim.
The rule requiring exhaustion of administrative remedies does not
apply where insistence on its observance will result in nullification of
the claim asserted; or where the administrative agency has no power
to grant the relief sought in civil action, such claim for damages.
Not applicable in quo warranto cases.
While it may be desirable that administrative remedies be first resorted
to, no one is compelled or bound to do so; and as said remedies
neither a pre-requisites to nor bar the institution of quo warranto
proceedings, it follows that he who claims the right to hold a public
office usurped by another and who desires to seek redress in the
courts, should file the proper judicial action within the reglementary
period. For public interest requires that the right to a public office
should be determined as speedily as practicable.
Not applicable where there is no law requiring remedies.
Where there is no law or regulation requiring that administrative steps
be taken against an administrative action as a condition precedent to
the filing of an action in court.
CHAPTER 7
JUDICIAL REVIEW
A.JUDICAIL REVIEW GENERALLY
Generally.
Judicial Review-an act, rule or decision of an executive or
determination by the courts in the exercise of their judicial power in an
appropriate case instituted by a party aggrieved thereby as to whether
the questioned act, rule or decision has been validly or invalidly issued
or whether the same should be nullified, affirmed or modified.
It is a settled rule that when the issue involved concerns the validity of
such discretionary powers or whether said powers are within the limits
prescribed by the Constitution, courts may not decline to exercise the
power of review. The purpose of judicial review is to keep the
administrative agency within its jurisdiction and protect substantive
rights of parties affected by its act, rule or decision.
What are subject to review.
Any agency action is subject to judicial review in an appropriate case.
Agency action-the whole or part of any agency rule, order, license,
sanction, relief, or its equivalent or denial thereof.
Agency action may be either:
Non-judicial-purely administrative or executive acts and rules and
regulations
Quasi-judicial-includes final orders or decisions rendered by the agency
in the exercise of its quasi-judicial power.
Methods of judicial review, generally.
Modes of judicial review may according to the statues and the nature
of the agency action sought to be reviewed, which are an ordinary
court action, appeal, petition for review, petition for writ of certiorari, a
petition for prohibition, and a petition for mandamus.
A statute sometimes provides specific methods of judicial review and
prescribes the procedure to be taken. If there is such a valid statute,
the same should be followed, otherwise any court action without
compliance with the statutory requirements may be dismissed for
being either premature or improper.
The remedies that may be availed of where the statute is silent, are
the special civil actions for certiorari, prohibition and /or mandamus
under Rule 65 of the Rules of Court.
Where what is questioned is an act performed by an administrative
agency in the exercise of purely executive or administrative functions,
the judicial remedy, as a general rule, is to file the appropriate court
action before the court of general jurisdiction, namely, the Regional
trial Court.
It has been held that while an administrative agency can be sued in
courts of first instance in the performance of its administrative
functions, however, the rule is otherwise when the act complained of
forms part of its quasi-judicial functions.
Ordinary action for injunction.
And ordinary complaint for injunction filed with the Regional Trial
Court is the usual remedy against a purely administrative act of an
administrative agency or against a rule or regulation issued in the
exercise of its rule-making power as differentiated from a ruling or
decision promulgated in the exercise of its quasi-judicial or
adjudicatory power.
The same remedy applies where what is questioned is the rule or
regulation issued by an administrative agency in the exercise of its
quasi-legislative or rule-making power.
Appeal.
Ordinary appeal may be availed of, where the enabling statute
specifically provides that decisions of the quasi-judicial body may be
appealed as in ordinary civil cases within a specified period.
B. LIMITATIONS ON JUDICIAL REVIEW
Limitations. Generally.
It is only when there is grave abuse of discretion which is equivalent to
a capacious and whimsical exercise of judgment or where the power is
exercised in an arbitrary or despotic manner by reason of passion,
prejudice or personal hostility amounting to an evasion of positive
duty, or to a virtual refusal to perform the duty enjoined, or to act at
all in contemplation of law that there is a justification for the courts
setting aside administrative determination reached.
Administrative proceedings may be reviewed by the courts upon a
showing that the board or official has gone beyond his statutory
authority, exercised unconstitutional powers or clearly acted arbitrarily
and without regard to his duty or with grave abuse of discretion or
that the decision is vitiated by fraud, imposition or mistake.
Exercise of review power subject to certain guideposts.
Review is justified when there has been a denial of due process, or
mistake of law, or fraud, collusion or arbitrary action in the
administrative proceeding.
When there is a clear showing that the agency acted in a capricious
manner such that its action may amount to excess or lack of
jurisdiction.
The court will reverse or modify and administrative decision where the
rights of a party were prejudiced because the administrative findings,
conclusions or decisions are in violation of constitutional provisions; in
excess of authority or jurisdiction; made upon irregular procedure;
vitiated by fraud, imposition or mistake; not supported by substantial
evidence adduced at the hearing or contained in the records or
disclosed to the parties; or arbitrary or capacious.
Judicial review of rules and regulations.
In considering a legislative rule, a court is free to make three inquiries:
1) whether the rule is within the delegated authority of the
administrative agency
2)whether it is reasonable
3)whether it was issued pursuant to proper procedure
In the case of interpretative rule, the inquiry is not into the validity but
into the correctness or propriety of the rule.
A court, when confronted with and interpretative rule, is free to:
1) give the force of law to the rule
2)go to the opposite extreme and substitute its judgment
3)give some intermediate degree of weight to the interpretative rule.
Judicial review of administrative decisions, generally
It is a well-recognized principle that administrative and discretionary
functions may not be interfered with by the courts. In general, courts
have no supervisory power over the proceedings and actions of the
administrative departments of the government.
Interference with administrative discretion, to be avoided.
The general rule is that the courts will not interfere in matters which
are addressed to the sound discretion of government agencies
entrusted with the regulation of activities coming under the special
technical knowledge and training of such agencies.
The discretion given is of such wide latitude that the courts will not
interfere therewith, unless it is apparent that it is used as a shield to a
fraudulent award.
The exercise of administrative discretion is a policy decision which
should not be interfered with by the courts.
Findings conclusive, exceptions.
In reviewing administrative decisions, the findings of fact made therein
must be respected as long as they are supported by substantial
evidence, even if not overwhelming or preponderant.
The administrative decision in matters within the executive jurisdiction
can only e set aside on proof of grave abuse of discretion, fraud or
error of law.
While it is settled doctrine that findings of fact of an administrative
agency must be respected and the Court should not be tasked to
weigh once more the evidence submitted before the administrative
body, it is axiomatic that such findings of fact should be supported by
substantial evidence.
Apart from the requirements of substantial evidence rule, the lack of
which empowers the court to review findings of quasi-judicial agencies,
there are also a number of instances when the courts may review their
findings, petitions appropriately filed with the courts, namely:
Petition for review under rule 43 of the Rules of Court
Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the
Rules of Court
Petition for review to the Supreme Court under Rule 45 of the Rules of
Court
Judicial interference in technical matters.
the prohibition dictated by the decree pertains to the issuance by
courts of injunction or restraining orders against administrative acts on
controversies which involve facts or exercise of discretion in technical
cases, because to allow courts to judge these matters could disturb the
smooth functioning of the administrative machinery. But on issues
outside of this dimension and involving questions of law, courts are not
prevented by the decree from exercising their power to restrain or
prohibit administrative acts.
The prohibition applies only to administrative acts involving facts or the
exercise of discretion in technical cases. It does not apply to questions
of law or to matters which do not involve discretionary acts or
technical matters, nor to anomalies committed by administrative
officers or to non-compliance with bidding requirements, for the law
cannot be used as shield from judicial scrutiny against irregularities
committed by administrative agencies.
Judicial review of presidential discretion.
Discretion-the power or right conferred upon the officer by a law or
acting officially under certain circumstances according to the dictates
of his own judgment and conscience and not controlled by the
judgment or conscience of others.
Discretion, when applied to public functionaries, means a power or
right conferred upon them by law of acting officially, under certain
circumstances, uncontrolled by the judgment or conscience of others.
The usual excuse for the court’s non-interference in the exercise by
the President his discretionary power is the doctrine of separation of
powers or the so called doctrine of political question.
A political question means a question of policy. It refers to those
questions which under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the executive branch of
the government.
Final decision beyond judicial review.
The right to appeal is merely a statutory right and may be exercised
only in the manner and in accordance with the provision of law. Failure
to do so will cause loss of the right to appeal and render the decision
final.
It is well-established that the decisions and orders of administrative
agencies, rendered pursuant to their quasi-judicial authority, have
upon their finality, the force and binding effect of a final judgment
within the purview of the doctrine of res judicata.
Courts may not interfere with nor review administrative dispositions of
issues which come within the jurisdiction of the administrative agency
after the decisions have become final for failure of the losing party to
appeal.
(Pages 203-270)
C. PETITIION FOR REVIEW UNDER RULE 43 OF RULES OF
COURT
A petition for review is a mode of appeal from decisions or final orders
of quasi-judicial filed with the Court of Appeals pursuant to Sec. 9 of
BP 129 and Rule 43 of the Revised Rules of Court.
Sec. 1, Rule 43 provides appeal to the Court of Appeals from:
a. Court of Tax Appeals’ judgments or final orders.
b. Civil Service Commission, Central Board of Assessment
Appeals, Securities and Exchange Commission, Office of
the President, Land Registration Commission, Social
Security Commission, Civil Aeronautics Board, Bureau of
Patents, Trademarks and Technology Transfer, National
Electrification Administration, Energy Regulatory Board,
National Telecommunication Commission, Department of
Agrarian Reform under RA. 6657, Government Service
Insurance System, Employees Compensation Commission,
Agricultural Inventions Board, Insurance Commission,
Philippine Atomic Energy Commission, Board of
Investments, Construction Commission and voluntary
arbitrators’:
a. awards, judgments, final orders or resolutions
of; or
b. authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions.
c. Ombudsman’s decisions in administrative cases
d. NLRC by way of special civil action
- the enumeration of quasi-judicial agencies in Sec. 1, Rule 43 is not
exclusive.
- Rule 43 requires the exhaustion of all administrative remedies and
that a final order or decision has been rendered by the
administrative body in the exercise of its quasi-judicial functions.
First Lepanto Ceramics v. CA – the court held that a statute providing
that decision of specific quasi-judicial body is appealable directly to the
Supreme Court, if enacted without the advice and concurrence of the
SC, is not effective, and that the appeal therefrom must be taken to
the Court of Appeals under Rule 43.
Excluded from Rule 43:
Decisions of COMELEC and COA, may be questioned by means of
petition for certiorari under Rule 64 & 65 of Rules of Court with the
Supreme Court within 30days from notice.
Sec. 3, Rule 43 appeal to the Court of Appeals may involve questions
of facts questions of law, or mixed questions of fact and law.
Question of Facts – when the doubt or difference arises as to the truth 3) The petitioner shall pay the clerk of court of the Court of
or falsehood of alleged facts. The query invites calibration of the whole Appeals the docketing and other lawful fees and deposit
evidence. the sum of Php 500.00 for costs.
Question of Law – when there is doubt or difference on the opinion as exception: may be granted by the Court of
to what the law is on a certain state of facts and which does not call Appeals upon verified motion setting
for an examination of the probative value of the evidence. forth valid grounds.
- if the Court of Appeals denies the motion, the petitioner shall pay
the fees within 15days from notice of denial.

Sec. 6. Rule 43, provides the contents of petition:

Petition for review under Rule Petition for certiorari under
Rule 65
43
- ordinary appeal from the final - special civil action, seeking to
order or decision of a quasi- nullify or modify an order or
judicial body resolution of an administrative
body exercising judicial or quasi-
judicial functions without or in
excess of jurisdiction or with
grave abuse of discretion
amounting to lack of jurisdiction
and there is no appeal, or any
plain, speedy and adequate
- filed 15days from receipt of said remedy in the ordinary course of
decision or resolution denying a law.
motion for reconsideration, after
exhausting administrative - filed 60days from receipt of the
remedies question judgment, order or
resolution.
- filed with the Court of Appeals
- filed with the Supreme Court,
or Court of Appeals, or the
- review on questions of fact, Regional Trail Court, as the Rules
questions of law or mixed of Court or the applicable law
questions of fact and law provides.
- raise questions of law and
errors of jurisdiction only, except
if it falls under the exception
which warrant a review of the
facts or the error of fact or of law
are so patent, gross, and
prejudicial as to amount to a
grave abuse of discretion.
Sec. 4, Rule 43 provides:
- Appeal shall be taken 15days from:
a. notice of award,
b. judgment,
c. final order or resolution
d. from the date of its publication, if publication is required
by law,
e. from the denial of petitioner’s motion for new trial or
reconsideration.
- only one (1) motion for reconsideration shall be allowed.
- Court of Appeals may grant additional 15days period within which
to file petition for review upon payment of the full amount of the
docket fee before the expiration of the reglementary period.
- no further extension shall be granted except for the most
compelling reason and in no case exceed 15days.
a) state the full names of the parties to the case,
- without impleading the court or agencies either as
petitioners or respondents;
b) contains a concise statement of the facts and issues
involved and ground relied upon for the review.
c) accompanied by a clear legible duplicate original or a
certified true copy of the award, judgment, final order or
resolution appealed from, together with certified true
copies of such material portion of the record referred to
therein and other supporting papers.
d) contain a sworn certification against forum shopping.
- the petition shall state the specific material dates showing that it
was filed within the period fixed.
Sworn certification against forum shopping – states that petitioner has
not commenced any other action involving the same issues
in the Supreme Court, the Court of Appeals or of different
division, or any other tribunal or agency.
- if there is such other action or proceeding, petitioner must
state the status of the same.
- if petitioner thereafter learn that a similar action or
proceeding has been filed, or is pending, the petitioner
shall promptly inform the courts and other tribunal or
agency within 5days.
- the certification should be executed by the petitioner
himself, and not by his counsel, and the latter’s signature
is not sufficient.
Sec. 7, Rule 43, provides the effect of failure to comply with the
requirements;
- failure to comply shall be sufficient ground for the dismissal
of the petition.
- substantial compliance with the requirements is sufficient.
Reason: for the rules must be so interpreted and applied as
to attain, not defeat, the ultimate purpose of all
rules of procedure, which is to achieve substantial
justice as expeditiously as possible.
Sec. 8, Rule 43, provides the action on petition;
- the Court of Appeals may:
a.) require the respondent to file a comment on the petition,
not a motion to dismiss within 10days from notice, or
b.) dismiss the petition if:
i) it finds the same to be patently without merit,
ii) prosecuted manifestly for delay, or
iii) that the questions raised therein are too
unsubstantial to require consideration.

Sec. 5, Rule 43 states how appeals are taken:

Sec. 9, Rule 43, provides the contents of comment;
1) file a verified petition for review in seven (7) legible
copies with the Court of Appeals with proof of service of a.) point out insufficiencies or inaccuracies in petitioner’s
copy to the adverse party and to the court or agency in statement of facts and issues
quo. b.) state the reason why the petition should be denied or
2) The original copy of the petition intended for the Court of dismissed.
Appeals shall be indicated as such by the petitioner.
 - shall be filed within 10days from notice in seven (7) legible copies
and accompanied by clearly legible certified true copies of such
material portions of the record referred to therein together with
other supporting papers.
- a copy thereof shall be served on the petitioner and proof of
service shall be filed with the Court of Appeals.
Sec. 10, Rule 43, provides due course;
- upon the filing of the comments, other pleadings or documents
required by the Court of Appeals or upon expiration of the period
for filing thereof, the Court of Appeals may:
a. give due course to the petition if on the basis of the
petition or the records the court finds prima facie
that the court or agency concerned has committed
errors of facts or law that would warrant reversal or
modification of the award, judgment, final order or
resolution sought to be reviewed.
b. otherwise, it shall dismiss the same.
- the findings of fact of the court or agency, when supported by
substantial evidence, shall be binding on the Court of Appeals.
- if the court dismiss the petition, it is usually in the form of a
minute resolution.
- if the petition is given due course, the court will render a full-
length decision on the merits of the case.
Substantial Evidence Rule – is a limitation upon the scope of the
judicial review in administrative cases. Under this rule the
courts are not supposed to reassess the evidence, determine
its preponderance on either side, and substitute its own
findings for those of the administrative agency. All that the
court does is to inquire from the record if the findings are
based on substantial evidence. If so, the findings are
deemed conclusive.
Exception to Substantial Evidence Rule:
1. the factual findings of the administrative agency and the
initial fact-finding agency are conflicting;
2. the findings are grounded entirely on speculation,
surmises, or conjectures;
3. the inference made by the quasi-judicial agency from its
finding is manifestly mistaken, absurd, or impossible;
4. there is grave abuse of discretion in the appreciation of
facts;
5. administrative agency, in making its findings, goes beyond
the issues of the case, and such findings are contrary to
the admissions of parties;
6. the judgment of the administrative agency is premised on
a misapprehension of facts;
7. the administrative agency fails to notice certain relevant
facts which, if considered, will justify a different
conclusion;
8. the findings of facts are themselves conflicting;
9. the findings are conclusion without citation of the specific
evidence on which they are based;
10. the findings are premised on the absence of evidence
but such findings are contradicted by evidence on record.
The settled doctrine does not apply when the board or official has
gone beyond his statutory authority, exercised unconstitutional powers
or clearly acted arbitrarily and without regard to his duty or with grave
abuse of discetion.
Sec. 11, Rule 43, provides the transmittal of record;
- Within 15days from notice that the petition has been given due
course, the Court of Appeals may:
a. require the court or agency concerned to transmit the
original or the legible certified true copy of the entire
records of the proceeding under review;
b. allow the records transmitted, be abridged by agreement
of all parties to the proceeding;
c. decide the case on merits, without the records being
brought before it, on the basis of the facts and admission
of the parties contained in the question decision, petition,
comment, reply, rejoinder, memoranda, etc.
Sec. 12, Rule 43, provides the effect of appeal;
- appeal shall not stay the award, judgment, final order or resolution
sought to be reviewed unless the Court of Appeals shall direct
otherwise upon such terms as it may deem just.
- Execution, pending appeal of a decision is allowed only where the
law so provides.
examples: appeal from Civil Service Commission under the
Administrative Code; and
appeal from Office of the President under the
Local Government Code.
- the Court of Appeals, upon motion of the appellant, may stay the
execution upon such terms as it may deem just, like issuing a
status quo order or writ of preliminary injuction.
Sec. 13, Rule 43, provides the submission for decision;
- if the petition is given due course, the Court of Appeals may:
a. set the case for oral argument; or
b. require the parties to submit memoranda within 15days
from notice.
- the case shall be deemed submitted for decision upon the filing of
the last pleading or memorandum required by these Rules or by
the Court of Appeals.
- the decision or final resolution of the Court of Appeals is
appealable to the Supreme Court by petition for review in
accordance with the Rule 45 of the Revised Rules of Court.
D. PETITION FOR CERTIORARI, PROHIBITION, AND
MANDAMUS
Sec. 1, Rule 65, provides the petition for Certiorari;
Certiorari – is a special civil action directed against any tribunal,
board or officer exercising judicial or quasi-judicial functions
which is alleged in a verified petition in the proper court to have
acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal, or plain, speedy and adequate remedy in
the ordinary course of law for the purpose of annulling or
modifying the proceeding.
- remedy designated to correct errors of jurisdiction and
not errors of judgment, or appreciation of evidence.
Purpose:
1 ) to annul void proceedings;
2 ) to prevent unlawful and oppressive exercise of legal
authority;
3 ) to provide for a fair and orderly administration of justice.
Requisites of Certiorari:
1 ) it is directed against a tribunal, board or officer
exercising judicial or quasi-judicial functions;
2 ) the tribunal, board or officer has acted without or in
excess of jurisdiction or with grave abuse of discretion.
3 ) there is no appeal nor any plain, speedy and adequate
remedy in the ordinary course of law.
 - remedies of an ordinary appeal and certiorari are mutually
exclusive, not alternative or successive, except where the interest
of justice requires or the dictates of public welfare and the
advancement of public demand.
Gen. Rule: if appeal is available, certiorari cannot be resorted to;
exceptions:
a) when the public welfare and the advancement or public
policy dictates;
b) when the broader interests of justice so require;
c) when the writs or orders issued are null and void; and
d) when the questioned order amounts to an oppressive
exercise of judicial authority.
- certiorari may be availed of:
i) even during the pendency of the case;
ii) even after judgment;
iii) even when appeal has been availed of;
iv) where appeal is not adequate, speedy and effectual.
- when certiorari will issue cannot be defined, because to do so
would be to destroy its comprehensiveness and usefulness. It will
be granted where it is necessary to prevent a substantial wrong
or to do substantial justice.
- it is the danger of failure of justice without writ, not the mere
absence of all legal remedies, that must determine the propriety
of certiorari.
- a petition for certiorari under Rule 65 may be treated by the
Supreme Court as an appeal under Rule 45, when the interest of
justice so require, instead of dismissing it on technicality.
Gen. Rule: a motion for reconsideration must be filed before the
remedy of certiorari may be availed of, in order to give the
court or tribunal the chance to correct itself.
exceptions:
1) where the order is a patent nullity, as where the court
has no jurisdiction;
2) where the question raised have been duly raised and
passed upon the lower court, or are the same as those
raised before the lower court;
3) where there is an urgent necessity for the resolution of
the question and any further delay would prejudice the
interest of the government or of the petitioner or the
subject matter of the action is perishable;
4) where, under the circumstance, a motion
reconsideration would be useless;
5) where petitioner was deprived of due process and there is
extreme urgency of relief;
6) where, in criminal case, relief from an order of arrest is
urgent and the granting of such relief by the trial court is
improbable;
7) where the proceedings in the lower court are a nullity for lack of
due process;
8) where the proceedings were ex parte or in which the
petitioner had no opportunity to object;
9) where the issue raised is one purely of law or where
public interest is involved;
10) where judicial intervention is urgent;
11) where its application may cause great and irreparable
damage;
12) failure of a high government official from whom relief is
sought to act on the matter;
13) when the issue of non-exhaustion of administrative
remedies has been rendered moot; and
14) where special circumstance warrant immediate and
more direct action.
Sec. 2, Rule 65, provides the petition for Prohibition;
Prohibition – when the proceedings of any tribunal, corporation,
board, officer or person, whether exercising judicial, quasi-judicial
or ministerial functions which is alleged in a verified petition in
the proper court to have acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, and there is no appeal, or plain, speedy
and adequate remedy in the ordinary course of law for the
purpose of commanding the respondent to desist from further
proceedings in the action or matter specified therein, or otherwise
granting such incidental reliefs as law and justice may require.
- is a preventive remedy, its function is to restrain the doing
of some act about to be done;
- not intended to provide a remedy for acts already accomplished;
- as a rule cannot undo what has already been done.
Sec. 3, Rule 65, provides the petition for Mandamus;
Mandamus - when any tribunal, corporation, board, officer or person
which is alleged in a verified petition in the proper court to have
unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled, and
there is other plain, speedy and adequate remedy in the ordinary
course of law for the purpose of commanding the respondent,
immediately or at some other specified by the court, to do the act
required to be done to protect the rights of the petitioner, and to
pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent.
Requisites:
a. the applicant must have a clear legal right to the thing
demanded, the right must be well defined, clear and
certain. A clear legal right is one founded or granted by
law.
b. the corresponding duty of the defendant to perform the
required act must also be clear, specific and peremptorily
enjoined by law or by reason of official station.
c. the respondent must have the power to perform the act
concerning which the application for mandamus is made.
d. there must be unreasonable delay in the performance of
the duty, notwithstanding demand to perform it.
for Generally lies to compel the doing of a ministerial act, and does not
lie to control discretion, although it may issue to compel the
exercise of discretion but not the discretion itself.
Gen. Rule: mandamus will not issue to compel a discretionary act;
exceptions:
a. where there is grave abuse of discretion, manifested
injustice or palpable excess of authority equivalent to
denial of a settled right to which petitioner is entitled
b. there is no other plain, speedy and adequate remedy.
Mandamus does not lie in the following instances:
a. to require anyone to fulfill contractual obligations;
b. to compel a course of conduct;
c. to compel an official to do anything which is not his duty
to do or to give the applicant anything to which he is not
entitled by law;
d. to compel performance of an act prohibited by law;
e. confers powers nor imposes duties;
Sec. 4, Rule 65, provides where to file petition;
 - petition may be filed not later than 60days from the notice of
judgment, order or resolution. In cases of motion for
reconsideration or new trial if timely filed, 60days start from the
time of notice of denial of said motion.
Where to filed:
a. in the Supreme Court;
b. in the Regional Trial Court exercising jurisdiction over the
territorial area as defined by the Supreme Court, if relates
to acts or omission of a lower court or of a corporation,
board, officer or person;
c. in the Court of Appeals whether or not the same is in aid
of its appellate jurisdiction, if it involves the acts or
omissions of a quasi-judicial agency, unless otherwise
provided by law or these rules
d. in the Sandiganbayan if it is in aid of its appellate
jurisdiction.
- no extension of time to file the petition shall be granted except for
compelling reason and in no case exceeding 15days.
Sec. 5, Rule 65, provides the respondents and cost in certain cases;
- petition relates to acts or omissions of a judge, court, quasi-judicial
agency, tribunal, corporation, board, officer or person, shall join,
as private respondents with such public respondents, the persons
interested in sustaining the proceedings in the court; and it shall
be the duty of such private respondents to appear and defend,
both in his or their own behalf and in behalf of the public
respondents affected by the proceeding, and the cost awarded in
such proceedings in favor of the petitioners shall be against the
private respondents only and not against the judge, court, quasi-
judicial agency, tribunal, corporation, board, officer or person
impleaded as public respondent or respondents.
- public respondents shall not appear in, or file an answer or
comment to the petition or any pleading therein, unless otherwise
directed by the court.
- if the case is elevated to a higher court by either party, the public
respondents shall be included therein as nominal parties, unless
directed by court shall not appear or participate in the
proceedings therein.
Sec. 6, Rule 65, provides the order of comment;
- if the petition is sufficient in form and substance to justify such
process, the court shall issue an order requiring the respondents
to comment on the petition within 10days from the receipt of a
copy thereof. Such order shall be served on the respondents in
such manner as the court may direct, together with a copy of a
petition and annexes thereto.
-in petition for certiorari before the Supreme Court and Court of
Appeals, the provisions in Sec. 2, Rule 56, shall be observed.
- respondents shall file their comment and not a motion to dismiss,
the petition.
Sec. 7, Rule 65, provides the expediting proceedings;
- the court in which the petition is filed may:
a. issue orders expediting the proceedings; and
b. also grant a temporary restraining order or writ of
preliminary injunction for the preservation of the rights of
the parties pending such proceedings.
- the petition shall not interrupt the course of the principal case
unless ordered by the court.
Sec. 8, Rule 65, provides the proceedings after comment is filed;
- after the comment and other pleadings required by court are filed,
or the time for the filing has expired, the court may:
a. hear the case; or
b. require the parties to submit memoranda.
- if court finds that the allegations of the petition to be true, it shall
render judgment for the relief prayed for or to which the
petitioner is entitled.
- the court may dismiss the petition if it finds the same to be:
a. patently without merit;
b. manifestly for delay; or
c. the questions raised therein are too unsubstantial to
require consideration.
Sec. 9, Rule 65, provides the service and enforcement of order or
judgment;
- a certified true copy of the judgment rendered in accordance with
the last preceding section shall be served upon the court, quasi-
judicial agency, tribunal, corporation, board, office or person
concerned in such manner as the court may direct, and
disobedience shall be punished as contempt. An execution may
issue for any damages or costs awarded in accordance with Sec.
1 of Rule 39.
Common requisites of petition for certiorari, prohibition and
mandamus;
1. the petition must be verified; (Sec. 1,2,3 of Rule 65)
2. when and where to file petition; (Sec. 4 of Rule 65)
3. jurisdiction to issue writ; (Sec. 4 of Rule 65)
4. who should be respondents; (Sec. 5 of Rule 65)
5. contents of petition; (Sec. 3 of Rule 46)
6. Non-forum shopping certification. (Sec. 3 of Rule 46)
Injunction relief, the court may:
a. issue a status quo order to maintain the last, actual, peaceable
and uncontested status of things which preceded the controversy;
or
b. upon motion of petitioner, grant a temporary restraining order or
a writ of preliminary injunction for the preservation of the rights
of the parties pending such proceedings.
E. APPEAL BY CERTIORARI TO THE SUPREME COURT
Sec. 1, Rule 45, provides the filing of petition with the Supreme Court;
-a party desiring to appeal the judgment or final order or resolution
of the Court of Appeals, the Sandiganbayan, the Regional Trial
Court or other courts wherever authorized by law my file a
verified petition for review on certiorari with the Supreme Court.
- the petition shall raise only question of law which must be
distinctly set forth.
Sec. 2, Rule 45, provides the time for filing;
- the petition shall be filed within 15days from:
a. notice of the judgment, final order or resolution appealed
from; or
b. the denial of the petitioner’s motion for new trial or
reconsideration filed in due time after due notice of the
judgment.
- motion duly filed and served, with full payment of the docket and
other lawful fees and deposit for costs before the expiration of
the reglementary period.
- the Supreme Court may, for justified reasons, grant an extension
of 30days.
Sec. 3, Rule 45, provides the docket and other lawful fees;
 - the petitioner shall pay the corresponding docket and other lawful
fees to the clerk of court of the Supreme Court and deposit the
amount of Php 500 for costs at the time of filing.
-Proof of service of a copy thereof on the lower court concerned and
on the adverse party shall be submitted together with the
petition.
Sec. 4, Rule 45, provides the contents of petition;
- petition shall be filed in eighteen (18) copies, with the original
copy intended for the court being indicated as such by the
petitioner, and shall:
a. state the full name of the appealing party as the
petitioner and the adverse party as respondent, without
impleading the lower court or judges thereof either as
petitioner or respondents;
b. indicate the material dates showing when notice of the
judgment or final order or new trial or reconsideration, if
any, was filed and when notice of the denial thereof was
received;
c. set forth concisely a statement of the matters involved,
and the reasons or arguments relied on for the allowance
of the petition;
d. be accompanied by a clearly legible duplicate original, or
a certified true copy of the judgment or final order or
resolution certified by the clerk of court of the court a quo
and the requisites number of plain copies thereof, and
such material portions of the record as would support the
petition;
e. contain a sworn certification against forum shopping as
provided in the last paragraph of Section 2, Rule 42.
Sec. 5, Rule 45, provides the Dismissal or denial of petition;
-failure of the petitioner to comply with any of the foregoing
requirements in Sec. 3 and Sec 4, of Rule 45, shall be sufficient
ground for the dismissal thereof.
-the Supreme Court may on its own initiative deny the petition on
the ground that the appeal is without merit, or is prosecuted
manifestly for delay, or that the question raised therein are too
insubstantial to require consideration.
Sec. 6, Rule 45, provides the review discretionary;
- review is not a matter right, but of sound discretion, and will be
granted only when there are special and important reasons.
Character of the reason which will be considered:
a. when the court a quo has decided a question of
substance, not therefore determined by the Supreme
Court, or has decided it in a way probably not in accord
with law or with the applicable decisions of the Supreme
Court; or
b. when the court a quo has so far departed from the
accepted and usual course of judicial proceedings, or so
far sanctioned such departure by a lower court, as to call
for the exercise of the power of supervision.
Sec. 7, Rule 45, provides the pleadings and documents that
may be required;
- the Supreme Court, as it may deem necessary within such periods
and under such conditions as it may consider appropriate,
requires or allows the filing of:
a. pleadings;
b. briefs;
c. memoranda; or
d. documents
- the Court may impose the corresponding sanctions in case of non-
filing or unauthorized filing of such pleadings and documents or
non-compliance with the conditions.
Sec. 8, Rule 45, provides the due course and evaluation of records;
- if petition is given due course, the Supreme Court may require the
evaluation of the complete record of the case or specified parts
thereof within 15days from notice.
Sec. 9, Rule 45, provides the rule applicable to both civil and criminal
cases;
- the mode of appeal prescribed in this Rule shall be applicable to
both civil and criminal cases, except in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment.
- the remedies of appeal under Rule 45 and a special civil action of
certiorari under Rule 65 are mutually exclusive and not alternative
nor successive.
Gen. Rule: the finding facts of the lower courts are binding upon the
Supreme Court;
exception:
1) when the conclusion is a finding grounded entirely on
speculation, surmises and conjectures;
2) when the inference made is manifestly mistaken, absurd,
and impossible;
3) where there is grave abuse of discretion;
4) when the judgment is based on a misapprehension of
facts;
5) when the findings are conflicting;
6) when the lower court, in making its findings, went beyond
the issues of the case and the same are contrary to the
admissions of both appellant and appellee;
7) when the findings are contrary to those of the trial court;
8) when the findings of facts are conclusions without citation
of specific evidence on which they are based;
9) when the facts set forth in the petition, as well as in the
other pleadings are not disputed by the respondent;
10) when the findings of facts are premised on the supposed
absence of evidence and are contradicted by the evidence
on the record; and
11) where the decision contains merely a restatement of the
evidence but does not make any findings of facts.
Memoranda of the parties shall contain the following:
a. “Statement of the Case” – a summary of the proceedings;
the challenged decision, resolution, or order of the
court below, nature of the judgment, and any
other matters necessary to an understanding of
the nature of the controversy;
b. “Statement of the Facts” – in a narrative form of the
established facts;
c. “Statement of the Issues: - issues submitted to the Court
for resolution;
d. “Argument” – presentation of the argument in support of
each issue; and
e. “Relief” – a specification of the order or judgment which
the party seeks to obtain.
- no new issues may be raised by a party in the Memorandum.
- issues raised in the previous pleadings but not included in the
Memorandum shall be deemed waived or abandoned.
- to deny due course of the petition is usually in the form of minute
resolution, stating the refusal with the legal basis thereof.
- petition given due course is decided by the Court on the merits in
a full-blown decision.
LAW ON PUBLIC OFFICERS
Chapter I
NATURE AND ELEMENTS OF PUBLIC OFFICE
Public Office refers to:
a. a public trust;
b. a functional unit of government, a department, or bureau
including regional offices;
c. to a position held or occupied by individual persons,
whose functions are defined by law or regulation;
d. the right, authority and duty, created and conferred by
law, for a fixed period where an individual is invested with
some portion of the sovereign functions of government;
- is not a property and one cannot acquire a vested right to it,
nevertheless, a protected right.
- is personal to the public officer and is not a property transmissible
to his heirs upon his death.
Public trust – implies a fiduciary relationship between a public officer,
who is the trustee, and the people, who are the
beneficiaries, of the public office.
- requires that all government officials and employees:
a. all times be accountable to the people in the
discharge of his duties;
b. serve the people with outmost responsibility,
integrity, loyalty, efficiency, fidelity, good faith;
c. demands that he take no advantage of his
position for his personal benefit or to prejudice
the public.
Creation of public office:
a. by the Constitution;
b. by law; or
c. by authority of law.
ex. when Congress has enacted reorganization laws
which authorize the President to create, abolish or
merge offices in the executive departments.
-when in exigencies of government it is necessary to create and
define duties, the legislative department has the discretion to
determine whether additional offices shall be created, or whether
these duties shall be attached to and become ex-officio duties of
existing offices.
- Public offices are filled up either by appointment, by election, and
in some instances by contract or by some other modes authorized
by law.
Public officer and employee:
1987 Administrative Code provides:
Officer – distinguished from ‘clerk’ ‘or employee,’ refers to a
person whose duties, not being of clerical or
manual in nature, involves:
a. exercise of discretion in the performance of the
functions of the government;
b. authority to do a particular act or perform a
function in the exercise of government power;
- includes any government employee, agent or body
having authority to do the act or exercise the said
function.
Employees – in reference to a person in the public service,
includes any person in the service of the
government or any of its agencies, divisions,
subdivisions or instrumentalities.
Article 203 of the Revised Penal Code:
Public Officers one must:
1) take part in the performance of public functions
or perform public duties in the government, as
an employee, agent or subordinate official or
any rank or class;
2) that his authority to take part in the
performance of public functions or to perform
public duties must be;
a. by direct provision of law;
b. by popular election; or
c. appointment by competent
authority.
- temporary performance of public functions is sufficient to
constitute a person a public official
- embraces every public servant from the highest to lowest;
it obliterates the distinction in the law of public officers
between “officer” and “employee”.
Anti-Graft and Corrupt Practices Act:
Public Officer – those receiving compensation, even nominal
from the government including:
a. elective and appointive officials
b. employees, permanent or temporary,
whether classified or unclassified or
exempt service.
Sec. 3 of RA 6713, Code of Conduct and Ethical Standard for Public
Officials:
Public Officials – whether or not they receive compensation
regardless of amount:
a. elective and appointive officials;
b. employees, permanent or temporary,
whether in career or non-career
service;
c. military and police personnel.
RA 7080, the act defining and penalizing the crime plunder:
Public Officer – any person holding any public office in the
Government by virtue of:
a. an appointment;
b. election; or
c. contract.
Civil Service Law - classifies employment in the Government into
career and non-career service.
Career service is characterized by:
1) entrance based on merit and fitness, to be determined as
far as practicable by competitive examination, or based on
highly technical qualification;
2) opportunity for advancement to higher career position;
3) security of tenure.
Positions under the Career Service:
1) Open Career – positions for appointment to which prior
qualification in an appropriate examination is required;
2) Closed Career – positions which are scientific or highly
technical in nature, these includes;
a. faculty and academic staff of state
college and universities;
b. scientific and technical positions in
scientific or research institution.
- establish and maintain their own merit system;
3) Position in the Career Executive Service – namely:
 a. undersecretary and assistant
secretary;
b. bureau director and assistant bureau
director;
c. regional director and assistant
regional director;
d. chief of department service; and
e. 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 Office in the Ministry of Foreign Affairs;
5) Commissioned officers and enlisted men of the Armed
Forces which maintain a separate merit system;
6) Personnel of government-owned or controlled corporation
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 is characterized by:
1) entrance on bases other than those of the usual test of
merit and fitness utilized for the career service; and
2) tenure which is limited:
a. to a period specified by law;
b. coterminous with that of the appointing
authority or subject to his pleasures;
c. to the duration of a particular project for which
purposes employment was made.
Positions under Non-Career Service:
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 the commissions and boards
with fixed terms of office and their personal or
confidential staff;
4) Contractual personnel or those whose employment is in
accordance with a special contract to undertake a specific
work of job, requiring special or technical skills;
5) Emergency and seasonal personnel.
Chapter II
APPOINTMENT OF PUBLIC OFFICERS
A. Qualification of Appointive Officers:
Gen. Rule: to entitle a public officer to hold a public office he, at the
time of his election or appointment and during his
incumbency, must possess:
a. all the qualifications prescribed by law for the
position;
b. none of the disqualification prescribed by law
for the position.
- if during the continuance of jis incumbency he ceases to be
qualified, he forfeits his office, but such forfeiture is not
automatic, a proper action must be filed against him.
- since the privilege of holding office is a valuable one, laws
prescribing qualification and disqualification for office should be
liberally construed in favor of eligibility.
Qualifications of Appointive Constitutional Officers:
1. Chief Justice or a Member of the Supreme Court:
a. natural born citizen of the Philippines;
b. at least 40years of age;
c. must have been for 15years or more a judge of
a lower court or engaged in the practice of law
in the Philippines;
d. a person of proven competence, integrity,
probity, and independence.
2. Chairman and Members of the Civil Service Commission:
a. natural born citizen of the Philippines;
b. at the time of appointment least 35years of
age;
c. with proven capacity for public administration,
d. must not have been candidates for elective
position in the election immediately preceding
their appointment.
3. Chairman and Members of the Commission on Elections
a. natural born citizen of the Philippines;
b. at the time of appointment least 35years of
age;
c. holders of a college degree;
d. must not have been candidates for elective
position in the election immediately preceding
their appointment;
e. majority thereof, including the Chairman, shall
be members of the Philippine Bar who have
been engaged in the practice of law at least
10years.
4. Chairman and Members of the Commission on Audit:
a. natural born citizen of the Philippines;
b. at the time of appointment least 35years of
age;
c. must not have been candidates for elective
position in the election immediately preceding
their appointment;
d. certified public accountants with not less than
10years of auditing experience or members of
the Philippine Bar who have been engaged in
the practice of law at least 10years;
e. at no time shall all members of the Commission
belong to the same profession;
5. The Ombudsman and his Deputies:
a. natural born citizen of the Philippines;
b. at the time of their appointing, at least 40years
of age;
c. of recognized probity and independence;
d. members of the Philippine Bar, who must have
been for 10years or more been a judge or
engaged in the practice of law in the
Philippines;
e. must not have been candidates for elective
position in the election immediately preceding
their appointment.
Qualification of Civil Servants:
Sec. 20, Art. III of P.D. 807, provides the qualification
standards;
Qualification standard expresses the minimum
requirements for a class of position in terms of:
a. education;
b. training and experience;
c. civil service eligibility;
 d. physical fitness; and
e. other qualification required
for successful performance.
The establishment, administration and
maintenance of qualification standard shall be
the responsibility of the department or agency,
with the assistance and approval of the Civil
Service Commission and the consultation with
the Wage and Position Classification.
- the degree of qualification of an officer or
employee shall be determined by the appointing
authority on the basis of the qualification
standard for a particular position.
- appointment in the absence of qualification
standards or in disregard thereof may be
revoked by the Civil Service Commission.
Citizen Requirement:
Natural born citizens are those who are:
a. citizens of the Philippines from birth without
having to perform any act to acquire or perfect
their Philippine citizenship.
b. born before January 17, 1973, of Filipino
mothers, who elected Philippine citizenship
upon reaching the age of majority.
Filipino Citizens are those who are:
a. citizens of the Philippines at the time of the
adoption of the Constitution;
b. born of Filipino fathers or Filipino mothers;
c. born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon
reaching the age of majority;
d. naturalized in accordance with law.
- RA 9225, allows natural born citizen who lost his Filipino
citizenship to re-acquire his citizenship by taking the
required oath.
B. Appointment Generally:
Appointment – means the selection of an individual, by the person
having authority thereof, to exercise the duties and
responsibilities of a given position. Generally be in writing.
- confer security of tenure; connotes permanency.
Designation – means the imposition of additional duties different
from those of his position, usually by law, upon a person
who is already in the public service by virtue of an earlier
appointment or election.
- does not confer security of tenure; temporary in nature.
Nature of Appointment:
Appointment is an essentially discretionary power and must
be performed by the officer in which it is vested, the only
condition being that the appointee should possess the
qualifications required by law.
Civil Service Commission is limited only to the non-
discretionary authority of determining whether or not the
person appointed possesses the appropriate civil service
eligibility or the required qualification laid down by the
law.
Appointing Authority:
The appointing authority is the officer or body vested by the
Constitution or by law with the power to make
appointments of public officers and employees to public
offices or positions. They are:
1. President of the Philippines;
2. the courts;
3. heads of departments;
4. agencies
5. commissions;
6. boards;
7. other officers as the power to appoint
may be delegated.
(Pages 270-336)
PRESIDENT’S APPOINTING POWER
SEC 16, ART VII
Section 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this
Constitution. He shall also 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. The Congress may, by
law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards.
The president shall have the power to make appointment during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the
commission on appointments or until the next adjournment of the
Congress.
GEN RULE: appointing power is exclusive prerogative of the president
with no limitation maybe imposed by the Congress.
EXCEPTION: the need for the concurrence of the Commission on
Appointment
- When the law is silent appointing authority is understood to
be that of the president.
LEGISLATIVE GRANT OF ADDITIONAL DUTIES
- The grant by law of additional duties to public officers does
not encroach the president’s power of appointment
LOPEZ V ROXAS
RA 1793- an act creating an independent
presidential Electoral Tribunal and provided that it be
composed of Chief Justice and justices was deemed VALID
bec. The law merely imposed upon the SC the additional
duty of performing the functions of a Presidential electoral
tribunal and the imposition of new duties constitutes neither
the creation of the new office nor the appointment of the
new officers.
RAFAEL V EMBROIDERY AND APPAREL CONTROL AND
INSPECTION BOARD
-questioning the validity of RA 3137 an act creating the
board, SC ruled that for the Chairman and members to be
qualified they need only to be designated by the department
heads, as they sit ex-officio. In order t be designated they
must already be holding positions in the offices mentioned in
the law. No new appointment is necessary.
 APPOINTMENTS SUBJECT TO CONFIRMATION BY
COMMISSION ON APPOINTMENTS
Section 18. There shall be a Commission on Appointments consisting
of the President of the Senate, as ex officio Chairman, twelve
Senators, and twelve Members of the House of Representatives,
elected by each House on the basis of proportional representation from
the political parties and parties or organizations registered under the
party-list system represented therein. The chairman of the Commission
shall not vote, except in case of a tie. The Commission shall act on all
appointments submitted to it within thirty session days of the Congress
from their submission. The Commission shall rule by a majority vote of
all the Members.
Section 19. The Electoral Tribunals and the Commission on
Appointments shall be constituted within thirty days after the Senate
and the House of Representatives shall have been organized with the
election of the President and the Speaker. The Commission on
Appointments shall meet only while the Congress is in session, at the
call of its Chairman or a majority of all its Members, to discharge such
powers and functions as are herein conferred upon it.
4 GROUPS OF OFFICERS WHOM THE PRESIDENT SHALL APPOINT:
1. A.) the heads of the executive departments
B.) ambassadors, other public ministers and consuls
C.) officers of the armed forces from the rank of colonel or
naval captain
D.) other officers whose appointments are vested in him in
this constitution such as chairman of COMELEC. These
appointments require the consent of the Commission on
Appointments.
2. All other officers of the Government whose appointments are
not otherwise provided by law
3. Those whom the president may be authorized by law to
appoint
4. Officers of lower in rank whose appointments the Congress
may by law vest in the president alone
- only appointments in the first group require the consent of
the Commission the rest do not require such consent.
AD INTERIM APPOINTMENNTS
SECTION 16 LAST PAR:
The president shall have the power to make appointment during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the
commission on appointments or until the next adjournment of the
Congress.
Recess-
Adjournment
Ad interim appointments-those made by the president during the
recess of congress of officials whose confirmation by the Commission
on appointments is required by the constitution.
Ad interim are permanent until:
a.) disapproval of the Commission
b.) until the next adjournment of the Congress= refers to either
regular or special session
- the two modes of separation are separate and distinct from
each other
- the termination of ad interim appointments does not
preclude the president from extending to him another ad
interim appointment.
- An ad interim appointee who has been rejected by the
Commission on appointments cannot be reappointed to the
same position.
- Ad interim appointment is permanent and in order to be
valid it must be released and accepted by the appointee and
he qualified to the position, otherwise the appointment is
incomplete, and there is no ad interim appointment that
could be validly transmitted to and acted upon by the
commission.
- It is not descriptive of the nature of the nature of the
appointment-it is not indicative of whether the appointment
is temporary or in acting capacity, rather it denotes the
manner the appointment was made.
- Permanent until disapproval of the Commission- the
appointee is protected by security of tenure enjoyed by civil
service employees until the disapproval of the commission
- An ad interim appointment may also refer to the
appointment extended by recommending authority when the
appointing body is unable to act.
- If merely a designation, no need for the confirmation by the
commission.
- It is one made during the time when the confirming body is
not in session and there is an existing clear and present
urgency caused by an impending obstruction or paralysation
of the functions assigned to the office if no immediate
appointment is made.
POWER TO ISSUE TEMPORARY DESIGNATION
- THE President has the power to temporarily designate an
officer already in government or ANY OTHER COMPETENT
PERSON to perform functions of an when the officer
assigned to that office is unable to perform his duties due to
illness, or there exists a vacancy.
- It shall not exceed 0NE YEAR.
- TO ENSHE SHALL receive the compensation attached to the
position UNLESS, he is already in the government service in
which he shall only receive such additional compensation as
with his existing salary shall not exceed the salary
authorized by law for the position filled.
LIMITATION ON THE PRESIDENT’S POWER TO APPOINT
D. THE CIVIL SERVICE COMMISSION AND APPOINTMENTS IN THE
CIVIL SERVICE
CSC- THE CENTRAL personnel agency of the government
- composition- chairman and two commissioners appointed by
pres with the consent of the commission on appointments
- TERM- 7 YEARS without reappointment
PURPOSE – to insure and promote the general mandate requiring
appointments only according to merit and fitness
Establish a merit system of fitness and efficiency
POWERS AND FUNCTIONS
COVERAGE OF THE CIVIL SERVICE
 - EMBRACES all the branches, subdivisions, instrumentalities
and agencies of the Government, including GOCC with
original charters.
- GOCC’s with original charters-organized pursuant to a special
law or charter enacted by Congress
- GOCC under the Corporation Code whose shares of stock
are owned by the government falls outside the coverage of
civil service laws.
POLICY DETERMINING POSITION- one vested with the power of
formulating a method of action for the government
HIGHLY CONFIDENTIAL POSITION- duties are not merely clerical but
are such as especially devolve upon the head of an office, which by
reason of his numerous duties, he is compelled to delegate to others
HIGHLY TECHNICAL- If it requires skill or training in the highest
degree. Entry to this position does not require competitive examination
or civil service eligibility
APPOINTIVE POSITIONS IN THE CIVIL SERVICE AND IN CES
- Appointments to civil service are based on merit and fitness
determined by the competitive examinations except
appointments to positions which are policy determining,
primarily confidential or highly technical.
CLASSIFICATION
Career as 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
3.) security of tenure
POSITIONS UNDER CAREER SERVICE ARE THE FF:
1. Open career positions for appointment to which prior
qualifications in an appropriate examinations is required
2. Closed career positions which are scientific Or highly
technical in nature-includes academic staff of state colleges
and universities and scientific and technical positions in
scientific or research institution which shall establish their
own merit system
3. Positions in the Career Executive Service, namely: under
secretary, bureau director, assistant bureau director,
regional director, assistant regional director, chief of
department service and other service of equivalent rank as
may be defined by CES Board, all of whom are appointed by
the president taken from the list from the list of career
service eligibles recommended by the board. The president
may however in exceptional cases appoint appoint any
person who is not CES eligible provided that such appointee
shall subsequently take the required career service
examination and that he shall not be promoted to a higher
class until he qualifies in such position. And he cannot claim
his appointment in permanent and does not guaranty him
security of tenure in said position
4. Career Officers othere than CES who are appointed by the
president, such as the Foreign service officers in the ministry
of foreign affairs.
5. Commissioned officers and enlisted men of the armed forces
which shall maintain a separate merit system
6. Personnel of GOCC with original charters, whether
performing governmental or proprietary functions who do
not fall under the non-career service
7. Permanent labourers whether skilled semi-skilled or unskilled
NON-CAREER AS CHARACTERIZED BY:
1.) ENTRANCE ON BASES other than the usual test of merit and
fitness utilized by the civil service
2.) Tenure which is limited to a period specified by law, or
coterminous to the appointing authority or subject to his
pleasures, or limited to duration of a particular project. Enjoy
the consti guaranty that they can’t be removed except for
cause and after hearing
They are the ff:
1. Elective officials and their personal, confidential staff
2. Dept heads and other officials of cabinet rank
3. Chairman and members of commissions and boards with fix
terms of office and their personal or confidential staffs
4. Contractual personnel
5. Emergency and seasonal personnel
- Except elective officials all other officers and employees in
the career and non-career are appointive
3 LEVELS OF POSITIONS IN THE CAREER SERVICE
1. FIRST LEVEL-clerical, trades, crafts and custodial service
positions involving non-professional or sub professional work
in a non-supervisory or supervisory capacity requiring less 4
years of collegiate studies
2. SECOND LEVEL- PROFFESIONAL, TECHNical and scientific
positions involving professional, technical or scientific work
in a non-supervisory or supervisory requiring at least 4
years of college work up to division level
3. THIRD LEVEL- CES
-Entrance to the first two levels –through competitive examination.
(civil service eligibility and name has been entered to the register of
eligibles
- Entrance to 3rd level-through CES Board
-eligibility is sine qua non in acquiring a permanent appointment
except those which are not required by law.
KINDS OF APPOINTING OF APPOINTIVE OFFICERS; OF
APPOINTMENTS
PRESIDENTIAL APPOINTEES- appointed by the president
NON-PRESIDENTIAL APPOINTEES-in accordance with civil service
Two kinds of appointment
Permanent status- one who meets all the requirements
Temporary appointment person who meets al the requirements for the
position to which he is being appointed except the appropriate civil
eligibility. Shall not exceed 1 year and may be replaced sooner if the
qualified civil service eligible becomes available.
-security of tenure –available only to permanent appointees
COTERMINOUS STATUS -the commission can’t replace the appointee with an employee of its
choice coz such is an encroachment to the discretion vested to the
1. Coterminous with project appointing authority
2. With the appointing authority
3. With the incumbent OPPOSITION TO APPOINTMENT
4. With a specific period
-FILe a protest against appointment
REQUISITES OF APPOINTMENTS; EXERECISE OF DISCRETION
Protest- mode of action that may be availed of by the aggrieved party
a.) Requires authority to be vested with the power to make the
to contest the appointment of another to a particular position
appointment at the Time the appointment is made
b.) The appointee possesses all the qualifications including the
appropriate civil service eligibility and non of the GROUNDS FOR PROTEST
disqualifications
c.) The position is vacant 1. Appointee is not qualified
d.) Appointment has been approved by the CSC 2. Appointee is not the next rank
e.) The appointee accepts the appointment by taking the oath 3. In case of appointment by transfer, reinstatement or by
and entering the discharge of his office. original appointment that the protestant is not satisfied with
the reasons of the appointing authority
APPOINTING AUTHORITY; EXERCISE OF DISCRETION
Revocation or recall of appointment
-WHO has the power to appoint at the time he made the appointment,
otherwise null and void and the appointee could not claim any valid GR: an appointment once made is irrevocable and not subject to
right to the position reconsideration

-where on the date of the date the appointment papers were signed - An appointment is not final and complete until after the
same has been approved by CSC
by the appointing authority he was still in the government , the fact
- Revocation must be made before the appointment is
that when the appointment was attested by the CSC the appointing completed or before its approval by the CSC in the case of
authority already ceased to be public officer as his resignation was appointments in the civil service
accepted, appointment still valid
Power to Recall on the ff grounds:
-appointment is essentially an exercise of discretionary power; the only
condition is that the appointee should possess the qualifications 1. Non-compliance with the procedures/criteria provided in the
required by law. Thus the appointment can’t be faulted on the ground agency’s merit promotion plan
there are others who are better qualified who should be preferred. 2. Failure to pass through the agency’s selection/promotion
This is a political question board
3. Violation of the existing collective agreement between
management and employees relative to promotion
- One with temporary appointment is not entitled to be appointed or
4. Violation of other existing civil service law, rules, and
re-appointed in a permanent capacity after he acquired civil service
regulations
eligibility
WHEN APPOINTMENT IS COMPLETE; WHEN ACCEPTANCE IS
- when two or more persons are applying for the same position with NECESSARY
civil service elibility, the authority may consider education, experience
or training and his choice to who will be appointed rests upon his -COMPLETE-when all the requisites for the position have been met:
sound discretion, which should be respected.
-Written appointment on a vacant position by the appointing authority
POWER OF CSC TO APPROVE APPOINTMENTS in favour of the appointee

GR: appointments in the civil service requires CSC’s approval, except
those of pres appointees, police forces, firemen, jailguards
-appointing authority is required to submit to CSC all appointments
which require its approval within 30 days from issuance, otherwise it
will become ineffective 30 days after.
-Approved by CSC
-ACCEPTED by the appointee by taking oath (indispensable)
-one who does not take his oath is deemed de facto officer and enjoys
no guarantee as to tenure

- the approval by the CSC of appointment in the civil service is more
appropriately called an attestation, that the appointee is qualified for
the position to which he has been named.
LIMITATIONS ON THE POWER TO APPROVE APPOINTMENTS
-the power does not include the power to make the appointment itself
or to direct the appointing authority to change the employment status
of an employee.
-the commission can only inquire into the eligibility of the person
- one with complete appointment acquires a legal right not merely
equitable right to the position which is protected by the constitution
and can’t be taken even by revocation or removal except for cause
and with previous notice and hearing
PERMANENT APPOINTMENT
- Can only be issued to a person, who meets all the requirements for
the position, otherwise his appointment is only temporary which could
be withdrawn by the appointing authority
TERM AND TENURE
 - Term- Fixed and definite period of time that an officer may
hold an office; fixed by constitution; serves as a right of the
employee
- Tenure- represents the period during which the incumbent actually
holds the office, which maybe shorter than the term
-CLASSIFICATION OF TERM
- FIXED DUARTION BY THE CONSTITUTION OR THE LAW
- During good behaviour until reaching retirement age (members of
SC)
- Indefinite and terminates at the pleasure of the appointing authority
- Primarily confidential officer
- AN APPOINTMENT which has definite period expires when it is not
renewed; it does not involve a dismissal but an expiration of the term
- if the person’s appointment is dependent to the pleasure of the
appointing power, the fact that he subsequently acquired civil service
does not convert the appointment into a permanent one. It still
requires a new appointment.
- when the appointment is temporary does not grant a blanket
authority to the appointing to remove Him without just cause
- the tenure of Congress may be shortened in the ff instances:
1. forfeiture of seat by holding any other office or employment in the
gov or any subdivision, agency or instrumentality thereof
2. expulsion as a disciplinary action for disorderly behaviour
3. disqualification as determined by resolution of the electoral tribunal
in an election contest
4. voluntary renunciation of office
HOLD-OVER CONCEPT
GR: IN the absence of a law, an officer is entitled to hold office until
his successor is elected or appointed and has qualified.
“HAS QUALIFIED”-the officer’s taking of oath and entering the
discharge of his office, following his election or appointment
- Is applied to a public officer with an office of a fixed term
and the incumbent is holding onto the succeeding term. The
office does not become vacant upon the expiration of the
term if there is no successor elected or appointed to such
position. Successor’s tenure is shortened.
- Not allowing hold –over must be clearly expressed in the
enactment otherwise it is reasonable to assume that hold-
over is allowed.
TEMPORARY OR ACTING APPOINTMENT
-is revocable at will by the appointing authority
- purpose is to prevent a hiatus in the discharge of official functions by
authorizing a person to perform until the selection of a permanent one.
Designation- refers to the assignment of a public officer to perform
certain functions different from the position of which he has been
appointed. Nature is temporary; with no security of tenure
-acceptance of designation does not amount to abandonment of his
permanent position
PROMOTIONAL APPOINTMENT
-AS an award to loyalty to service, when a higher position becomes
vacant, he shall be seriously considered for promotion provided that he
met all the qualifications.
- an employee who had been permanently appointed to a position, is
promoted to another position and his promotional appointment is
invalidated, he is deemed not to have abandoned his prior office and
should be reverted back to his old position.
REINSTATEMENT- ISSUANCE of a new appointment which is
essentially discretionary by the officer, upon the condition that the
appointee should possess the qualifications.
NEPOTISM AS A RESTRICTION ON APPOINTMENT
-favoritism in the appointment in the public service in favour of a
relative within the third degree (consanguinity or affinity) by the
appointing authority.
-such act is prohibited under the law as extended to promotional
appointments, designation in an acting capacity, appointment which
requires the issuance of a new appointment.
-purpose is to ensure merit and fitness
-nepotism does not apply to:
1.) persons employed in a confidential capacity
2.) teachers
3.)members of AFP
4. the case of a member of any family who after his appointment to
any position in an office, contracts marriage with someone in the same
office, in which in the event the employment or retention therein of
both husband and wife may be allowed. A spouse who is an
appointing authority can’t extend a promotional appointment to the
other spouse without violating the rules on nepotism
5. appointed in GOCC
VOID APPOINTMENTS
- Confers no right except those recognized under de facto
officer, but never so far as to entitle the incumbent to take
shelter under the guarantee of security of tenure. It can only
be corrected by another valid appointment
-appointment secured though forgery and misrepresentation is null
and void. However, the appointee may not be required to refund the
salaries and benefits he has received for services rendered.
APPOINTMENT OF ONE WHO HAS RETIRED
One can be retained or reinstated even if he has reached the age of
65 on the following circumstances:
1. Exigencies of the service require
2. When the employee possesses special qualification not
possessed by other officers or employees in the agency
where he is to be appointed or retained
 3. The vacancy cannot be filled by promotion of qualified
officers in the agency concerned, or by transfer of qualified
officers or employees from other government agencies, or
there are no eligibles in the appropriate register of the
Commission available for certification to the vacancy
DOUBLE APPOINTMENT-not prohibited as long as the positions
involved are not incompatible, except that the officer appointed cannot
receive additional or double compensation unless specifically
authorized by law
PRIMARILY CONFIDENTIAL POSITIONS
-denotes not only confidence in the aptitude of the appointee for the
duties of the office but primary close intimacy which insures freedom
of intercourse without embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters of the state
-primarily confidential position cann be removed for loss of confidence
by the appointing authority. This rule does not apply to legal staff or
assistant lawyers in the office of city or provincial atty coz their
positions are remote from that of the appointing authority
-effects of characterizing primarily confidential:
1. such characterization renders inapplicable the ordinary requirement
of filling up a position in the CSC based on merit and fitness as
determined by competitive examinations
2. loss of confidence
-the fact that he may sometimes handle confidential matters does not
sufficiently characterize his position as primarily confidential. Nature of
position is important in determining whether it is primarily confidential
APPOINTMENT OF NEXT-IN-RANK
- A qualified next-in-rank is an employee appointed on a permanent
basis to a position previously determined to be next-in-rank to the
vacancy proposed to be filed and who meets the requisites for
appointment
- Deemed as a promotion whenever a position in the first level
becomes vacant
- It does not impose a ministerial duty to the appointing authority
only a preferential consideration
- A next-in-rank employee who is competent and feels aggrieved to
the promotion may file protest with the dept head who shall render
decision within 30 days from the day of receipt
- Within 15 days-appeal to the Commission
CAREER EXECUTIVE SERVICE
Appointment, assignment, reassignment, and transfer in CES
Security of tenure is acquired with respect of rank and not of position
Requisites
1. CES eligibility
2. Appointment to the appropriate rank
QUO WARRANTO AS REMEDY TO QUESTION TITLE
- IS A remedy to determine right to the use or exercise of an
office and to oust the holder from its enjoyment, if his claim
is not well- founded or if he has forfeited the right to enjoy
the privilege.
- The right of a person to use of a franchise and to oust the
holder from its enjoyment if his claim is not well founded or
if he has forfeited his right to enjoy the privilege
QUO WARRANTO IN APPOINTIVE AND ELECTIVE POSITIONS,
DISTINGUISHED
ELECTIVE POSITION- raises issues of disloyalty or ineligibility of
winning
APPOINTIVE-questions the legality of the appointment
QUO WARRANTO AND MANDAMUS
QUO WARRANTO- test the title to one’s office claimed by another and
has its object the ouster of the holder from its enjoyment.
Applied when one is already appointed and occupying the disputed
office
MANDAMUS-avails to enforce legal duties and not to try disputed titles
- Title may not be collaterally attacked
ACTION may be filed by SOLGEN or public prosecutor either upon the
direction of the Pres of Phil or upon request of a person.
Mandatory –when directed by the pres
Action may also be filed by person entitled to the position
-the action must be filed against the person who is in unlawful
possession of the office
-he should also has a clear 1. legal right to file an action and that 2. he
is entitled to the controverted position, otherwise the respondent has a
right to the undisturbed possession of the office
WHen AND WHERE TO FILe
SEC. 11. Limitations.—Nothing contained in this Rule shall be
construed to authorize an action against a public officer or employee
for his ouster from office unless the same be commenced within one
(1) year after the cause of such ouster, or the right of the petitioner to
hold such office or position, arose; nor to authorize an action for
damages in accordance with the provisions of the next preceding
section unless the same be commenced within one (1) year after the
entry of the judgment establishing the petitioner’s right to the office in
question
Quo warranto and mandamus affecting titles to office must be filed
within 1 year from the date the petitioner is ousted from his position.
Comprehensive
After said period has lapsed, the remedy of the aggrieved party lies
with the admin authorities and is beyond the help of the court
- When the aggrieved party resorted with admin remedies
which remained unresolved he doesn’t have to wait for
them to act; he has to file quo warranto, for the 1 year
period is not suspended by the pending admin action
- 1 yr perios is Not also suspended by the pendency of MR
filed in the admin case
Exception that the petition may be filed within 1 year
Lies only if the failure to file the action can be attributed to the acts of
responsible government officer and not of the dismissed employee
When action is waived- action for commutation of his vacation and sick
leaves stating as reason that the same is an incident to separation
from service, non-reservation the right to continue for quo warranto
constitute abandonment
Judgment and relief
SEC. 9. Judgment where usurpation found.—When the
respondent is found guilty of usurping, intruding into, or unlawfully
holding or exercising a public office, position or franchise, judgment
shall be rendered that such respondent be ousted and altogether
excluded therefrom, and that the petitioner or relator, as the case may
be, recover his costs. Such further judgment may be rendered
determining the respective rights in and to the public office, position or
franchise of all the parties to the action as justice requires. (10a)
SEC. 10. Rights of persons adjudged entitled to public office;
delivery of books and papers; damages.—If judgment be rendered in
favor of the person averred in the complaint to be entitled to the
public office he may, after taking the oath of office and executing any
official bond required by law, take upon himself the execution of the
office, and may immediately thereafter demand of the respondent all
the books and papers in the respondent’s custody or control
appertaining to the office to which the judgment relates. If the
respondent refuses or neglects to deliver any book or paper pursuant
to such demand, he may be punished for contempt as having
disobeyed a lawful order of the court. The person adjudged entitled to
the office may also bring action against the respondent to recover the
damages sustained by such person by reason of the usurpation
EC. 12. Judgment for costs.—In an action brought in accordance with
the provisions of this Rule, the court may render judgment for costs
against either the petitioner, the relator, or the respondent, or the
person or persons claiming to be a corporation, or may apportion the
costs, as justice requires.
(Pages 338-402)
CHAPTER III
DE FACTO OFFICER
3.61. WHO IS A DE FACTO OFFICER
 De jure officer – one who is in all respects legally appointed
or elected and qualified to exercise the office.
 De facto officer – is one who assumed office under a color of
a known appointment or election, void because the officer
was not eligible or because there was a want of power in the
electing body, or by reasons of some defect or irregularity in
its exercise, such ineligibility, want of power, or defect being
unknown to the public.
Illustrations of a DE FACTO OFFICER:
 A public officer or employee who assumed office
under an incomplete appointment, even if such
assumption is tolerated or acquiesced by superior
officers and even when the appointee had served
for years.
 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 or informal, so
that the incumbent be not a mere volunteer.
 He is entitled to emolument for actual services
rendered. He cannot be made to reimburse funds
disbursed during his term of office because his
acts are as valid as those of a de jure officer.
 He is one who has the reputation or appearance
of being the officer he assumes to be but who, in
fact, under the law, has no right or title to the
office he assumes to hold.
 To constitute a de facto officer, there must be an
office having a de facto existence, or at least one
recognized by law and the claimant must be in
actual possession of the office under the color of
title or authority.
 One whose 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
public and third persons, where the duties of the
officer were exercised under color of a known
election or appointment.
 An officer may be considered de facto officer who
holds office “by or pursuant to a public
unconstitutional law, before the same is adjudged
to be invalid.”
 An elective officer who has been proclaimed and
had assumed office but was later on ousted in an
election protest or quo warranto is a de facto
officer during the time he held the office, and he
can retain the emoluments received even against
the successful protestant. The rule applies to an
appointive officer whose appointment is
subsequently declared invalid for lack of eligibility.
 A judge who resigned his position is considered de
facto officer until he is formally notified of the
acceptance of his resignation, for a resignation to
be effective must be accepted by the officer
authorized to accept it.
 A person appointed to a position during the period
of the incumbent, who was removed therefrom,
was litigating his action for reinstatement, may be
considered as a de facto officer.
 A person who has been appointed to a position
created by law or Executive Order which has been
subsequently declared unconstitutional is a de
facto officer.
 A person who acts and discharges the office
pursuant to an appointment which requires
approval by another officer or office, such as the
CSC, is a de facto officer until the appointment is
finally approved or disapproved.
If approved – becomes de jure officer
If disapproved – the continuance in office is illegal and
becomes a usurper
Although there may be a de facto officer in a de jure office, there
cannot be a de facto officer in a de facto office. There is no such thing
as a de facto office under an unconstitutional law.
3.62. WHEN A PERSON IS NOT A DE FACTO OFFICER BUT A
USURPER.
Usurper – one who usurps an office and undertakes to act officially
without any color of right.
As distinguished from a de facto officer who exercises the
duties of an office under a color of appointment of election.
 One who acts without appointment or any color of title to
the office is not a de facto officer, but a usurper.
 A person whose appointment as sectoral representative has
been immediately questioned before the appropriate agency
as violative of law is, if such appointment is declared invalid,
not a de facto officer.
 A municipal mayor who filed his certificate of candidacy for
congressman and who thereafter withdrew it and resumed
the duties of mayor, has no title to the office, as he is, by
law automatically resigned therefrom from moment he filed
his certificate of candidacy; consequently, he is not a de
facto officer.
3.63. ELEMENTS OF DE FACTO OFFICER
1. there must be a de jure office
2. there must be color of right or authority
3. there must be actual physical possession of the office in
good faith
4. there must be a general acquiescence by the public or a
recognition by the public who deals with him of his authority
as holder of the position.
* It has been held that an office created by law which has been
subsequently declared unconstitutional is not a de jure office. It has
also been held that the subsequent declaration of invalidity, the law
creating an office or position making the person appointed thereto a
de facto officer during his tenure thereto. In this sense, there may be
a de facto officer even when there is no de jure office.
3.64. REASONS FOR DE FACTO OFFICER DOCTRINE
Main reason – public interest demands that acts of persons holding,
under color of title, an office created by a valid statute be deemed
valid insofar as the public is concerned.
The de facto doctrine has been formulated for the protection of the
public and individuals who get involved in the official acts of persons
discharging the duties of an office without lawful officers.
3.65. VALIDITY OF ACTS
Acts of de facto officers are valid insofar as third parties are
concerned.
A de facto officer assumes the exercise of a part of the prerogative of
sovereignty, and the legality of that assumption is open to attack of
the sovereign power alone.
It is well-established principle that official acts of a de facto officer are
just as valid for all purposes as those of a de jure officer, so far as the
public and third persons who are interested therein are concerned.
(Founded on public policy and convenience).
Illustrations:
 A judge who resigned hid judgeship but continued to
discharge the duties thereto pending his receipt of the
acceptance of his resignation is a de facto officer and his
decision or order issued in a case during such period is valid
as that of a de jure judge, insofar as the parties and the
public are concerned. His official acts cannot be attacked
collaterally by a writ of prohibition or by a suit to enjoin the
execution of the decision.
 However, an officer seeking to justify his act or defending
his right as a public officer must allege and prove that he is
a de jure officer, for the acts of a de facto officer as far as
he himself is concerned are void. The purpose of the rule is
to discourage the seizure of public office.
3.66. COMPENSATION
A de facto officer who, in good faith, has possession of the office
under a color of validity and had discharged the duties pertaining
thereto is legally entitled to the emolument of the office.
Entitles him to compensation for his work, and his subsequent ouster
from the position entitles him to retain the emoluments received as
against the successful protestant.
A de facto officer is entitled to emoluments for actual services
rendered.
The question of compensation depends on 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 wrongful
retention of the public office. The question of whether the de facto
officer may be liable for the salary and other benefits of the office in
favor of the de jure officer may be litigated, even if the issue regarding
the right to the office has become moot and academic.
However, an officer who continued in office even when he no longer
had any right thereto nor color of title to remain therein can be made
to account for the salary he received in favor of the rightful incumbent
to the office, although the former may be considered a de facto
officer. The general rule is 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
office in good faith and under color of title.
However, while the general rule is that the ousted elective official is
not obliged to reimburse the emoluments of office that he had
received before his ouster, he would be liable for damages in case he
would be found responsible for any unlawful or tortuous acts in
relation to his proclamation.
A de facto officer does not enjoy the guarantees of security of tenure.
He may be removed from office even without cause.
Illustrations:
Rodriguez v. Tan – a senator who had been proclaimed and had
assumed office but was later on ousted in an election protest, and can
retain emoluments received even as against the successful protestant.
For the law mandates that the candidate duly proclaimed must assume
office notwithstanding a protest filed against him, which gives him
color of title to the office and entitles him to the salary and other
benefits of the position.
It has been held that a de facto officer cannot be made to reimburse
funds disbursed during his term of office because his acts are valid as
those of a de jure officer.
Civil Liberties Union v. Executive Secretary – the SC declared
unconstitutional EO 284, which allowed members of the Cabinet, their
deputies and assistant to hold multiple positions, and ordered the
officials concerned to immediately relinquish their other offices.
Entitled since they could be considered de facto officers.
Monroy v. CA – a municipal mayor who filed his COC for congressman
and thereafter withdrew it and resumed the duties of mayor has no
title to office, as he is, by law, automatically resigned therefrom when
he filed his COC; he must therefore account the salary he received
during his wrongful retention of the office in favor of the de jure
officer, as his re-assumption of office of mayor has no color of title,
nor is there a law which gives him such color of title.
3.67. PROCEEDING TO TRY TITLE OF DE FACTO OFFICER.
The title of a de facto officer cannot be assailed collaterally. It may not
be contested except directly, by quo warranto proceedings. Neither
may the validity of his acts be questioned upon the ground that he is
merely a de facto officer, the reason being that it would be an indirect
inquiry in the title to the office, and the acts of a de facto officer, if
within the competence of his office, are valid, insofar as the public is
concerned.
It is well-settled that the title to the office of a public officer, whether
de jure or de facto, can only be determined in a proceeding in the
nature of quo warranto and cannot be tested by prohibition.
Prohibition does not lie to determine the title of a de facto officer.
CHAPTER IV
COMPENSATION, BENEFITS AND PRIVILEGES
A. COMPENSATION
4.68. DEFINITIONS AND DISTINCTIONS
The terms usually associated with the word “compensation” are salary,
per diem and honorarium.
Salary – refers to pay or compensation given as the base pay of the
position or rank as fixed by law or regulations, excluding all bonuses,
per diems, allowances and overtime pay.
Per diem – is a daily allowance given for each day to an officer or
employee of the government that is away from his home base.
- traditional meaning: refers to reimbursement for
extra expenses incurred by the public official in
the performance of his duties.
- Intended to cover the cost of lodging and
subsistence of officers and employees when the
latter are on duty outside of their permanent
station.
- However, if the per diem were in the nature of
compensation or remuneration for services
rendered rather than as a reimbursement for
incidental expenses incurred while away from
home base, the per diem is regarded
compensation. What is controlling is the nature of
the remuneration rather than the label attached to
it.
Honorarium – something given not as a matter of obligation but in
appreciation for service rendered, a voluntary donation in
consideration of services which admit of no compensation in money.
Where the compensation given is in the nature of salary
because it is received as a matter of right in recompense for services
rendered, it is not honorarium, but additional compensation or salary
which is lawful if authorized by law.
4.69. RIGHT TO COMPENSATION
 A statutory right.
 He is only entitled to so much as the law grants him. The
law should, however, be implemented in a more
reasonable, humane, and realistic manner.
 Basic requirements for payment of salaries and wages are:
1. existence of a legally created position with fixed
compensation or emolument attached to the
position
2. issuance of a valid appointment
3. rendition of service being paid
4. payment to the right person
 Where provision is made for compensation for a public
office, the right to the compensation is incident to the office
or to the right or title thereto. Where a person no longer has
title to the office, he can no longer recover the salary
incident thereto.
 Public officers who are reservists may be called to active
duty or for active duty training for certain period. Such
officers do not lose their positions nor suffer loss of pay, and
the appointment of persons to their positions in their
absence in the fulfillment of their military obligations are null
and void, there being no vacant positions to which they can
be appointed.
 De facto officers, supra.
4.70. SALARY AS INCIDENT OF OFFICE
Triste v. Leyte State College Board of Trustees – “like the requirement
of an oath, the fact of the payment of a salary and/or fees may aid in
determining the nature of a position, but it is not conclusive, for while
a salary or fees are usually annexed to the office, it is not necessarily
so. As in the case of the oath, the salary or fees are mere incidents
and form no part of the office. Where a salary or fees are annexed, the
office is often said to be coupled with an interest; where neither is
provided for it is a naked or honorary office, and is supposed to be
accepted for the public good.”
4.71. SALARY MAY NOT BE GARNISHED
General rule – money in the hands of public officers, although it may
be due government employees, is not liable to the creditors of these
employees in the process of garnishment.
Reasons for the rule:
1. By virtue of sovereignty, the State cannot be sued in its own courts
except by express authorization from the legislature, and to subject its
officers to garnishment would be to permit indirectly what is prohibited
directly
2. Moneys sought to be garnished, as long as they remain in the hands
of the disbursing officer of the government, belong to the latter,
although the defendant in garnishment may be entitled to a specific
portion thereof
3. Every consideration of public policy forbids it.
Salary check of a government officer or employee does not belong to
him before it is physically delivered to him. Until that time, the check
belongs to the government, and the payee has no power over it; he
cannot assign it without the consent of the government. Neither can it
be garnished to satisfy a judgment against the officer or employee.
4.72. GOVERNMENT POLICY ON COMPENSATION
The policy of the State on compensation of public officers and
employees is to provide equal pay for substantially equal work and to
base differences in pay upon substantive differences in duties and
responsibilities and qualification requirements of the positions.
 4.73. POSITION CLASSIFICATIONS FOR SALARY GRADE The city mayor and the provincial governor “shall receive a minimum
PURPOSES monthly compensation corresponding to Salary Grade 30 as prescribed
under R.A. 6758 and the implementing guidelines issued pursuant
thereto.”
4 main categories:
Sec. 10 of R.A. 6758, which has been incorporated as part of R.A.
1. Professional supervisory – This category includes responsible 7160, provides that the rates of pay in local government units shall be
positions of a managerial character. These positions require
determined on the basis of the class and financial capability of each
intense and thorough knowledge of a specialized field
usually acquired from completion of a bachelor’s degree or unit, but such rates of pay shall not exceed the percentages of the
higher decree courses. These positions are given Salary rates in the salary schedule for government officers and employees
Grade 9 to 33. prescribed in Sec. 7 of R.A. 6759, to wit:
2. Professional non-supervisory category – This category
includes positions performing task which usually require the For municipalities: 1st class – 90%
exercise of a particular profession or application of
knowledge acquired through formal training in a particular 2nd class – 85
field or just the exercise of a natural, creative and artistic
ability or talent in literature, drama, music and other
3rd class – 80
branches of arts and letters. Also included are positions
involved in research and application of professional
knowledge and methods. These positions require thorough 4th class – 75
knowledge in the field of arts and sciences or learning
acquired through completion of at least 4 years of college 5th class – 70
studies. These positions are assigned Salary Grade 8 to 30.
3. Sub-professional supervisory – This category includes 6th class – 65
positions performing supervisory functions over a group of
employees engaged in responsible work along technical, For special cities – 100%
manual or clerical lines of work which are short of
professional work. These positions require knowledge
For provinces and cities: 1st class – 100%
acquired from secondary or vocational education or
completion of up to 2 years of college education. These
positions are assigned Salary Grade 4 to 18. 2nd class – 95
4. Sub-professional non-supervisory – This category includes
positions involved in structured work in support of office or 3rd class – 90
fiscal operations or those engaged in crafts, trades or
manual work. These positions usually require skills acquired 4th class – 85
through training and experience or completion of elementary
education, secondary or vocational education or completion 5th class – 80
of up to 2 years of college education. These positions are
assigned Salary Grade 1 to 10.
6th class – 75
4.74. SALARY GRADES 1 TO 33
A local government official’s actual salary may be less than what the
salary schedule provided, depending on the class and financial capacity
Salary grade 33 – the highest, assigned to the President of the of his respective local government unit. This circumstance, however,
Philippines only has no bearing on such official’s Grade. Thus, a municipal or city
mayor has a Grade of 27, regardless of the actual salary he receives.
Salary grade 32 – limited to VP of the Philippines, Senate President,
Speaker of the House of Representatives and Chief Justice of SC

Salary grade 31 – Senators, Associate Justices of the SC, Chairmen of The base pay and longevity pay of military and polic personnel are
Constitutional Commissions, department secretaries and other those prescribed in the salary schedule provided in Republic Act Nos.
positions of equivalent rank 6638, 6648, 1134, 3725 and 6658.

Salary grade 30 – Members of the Constitutional Commissions and

other positions of equivalent ran
4.76. CONSTITUTIONAL RESTRICTIONS ON COMPENSATION
The 1987 Constitution provides:
An official’s salary is determined by the Grade accorded to his position,
and ultimately by the nature of his position – the level of difficulty and
1. The salaries of Senators and Members of the House of
responsibilities and level of qualification requirements of the work.
Representatives shall be determined by law. No salary
increase in said compensation shall take effect until after the
4.75. SALARY RATES IN LOCAL GOVERNMENT UNITS AND expiration of the full term of all the Members of the Senate
OF MILITARY AND POLIC PERSONNEL and the House of Representatives approving such increase.
2. The President shall have an official residence. The salaries of
the President and Vice-President shall be determined by law
R.A. 7160 – prescribes the rates of pay of elective officials of the local and shall not be decreased during their tenure. No increase
government units. in said compensation shall take effect until after the
expiration of the term of the incumbent during which such
Thus, municipal mayor “shall receive a minimum monthly increase was approved. They shall not receive during their
compensation corresponding to Salary Grade 27 as precribed under tenure any other emolument from the Government or any
other source.
R.A. 6758 and the implementing guidelines issued pursuant thereto.”
 3. The salary of the Chief Justice and of the Associate Justices
of the Supreme Court, and of judges of lower courts shall be
fixed by law. During their continuance in office, their salary
shall not be decreased.
4. The salary of the Chairman and the Commissioners shall be
fixed by law and shall not be decreased during their tenure.
5. The Ombudsman and his Deputies shall have the rank of
Chairman and Members, respectively, of the Constitutional
Commissions, and they shall receive the same salary, which
shall not be decreased during their term of office.
6. No elective or appointive public officer or employee shall
receive additional, double, or indirect compensation, unless
specifically authorized by law, nor accept without the
consent of the Congress, any present, emolument, office, or
title of any kind from any foreign government.
7. Pensions or gratuities shall not be considered as additional,
double, or indirect compensation.
4.77. DOUBLE COMPENSATION
Sec. 17 of Act No. 4187 provides: “Any existing law act, rule or order
to the contrary notwithstanding, no full time officer or employee of the
government shall hereafter receive directly or indirectly any kind of
additional or extra compensation or salary including per diems and
bonuses from any fund of the government, its dependencies, and sem-
government entities or boards created by law, except:
1. Officers serving as chairman or members of entities and
enterprises organized, operated, owned or controlled by the
government, who may be paid per diem for each meeting
actually attended or when an official travel;
2. Auditors and accountants;
3. Provincial and municipal treasurers and their employees;
4. Employees serving as observers of the weather bureau; and
5. Those authorized to receive extra or additional
compensation by virtue of the provision of this Act.”
The Constitution provides that no elective or appointive public officer
or employee shall receive additional, double or indirect compensation,
unless specifically authorized by law.
Except the Vice-President, members of the Cabinet and their
deputies and assistants who are prohibited from receiving additional or
indirect compensation from ex-oficio positions they may hold, officials
and employees who are duly appointed by competent authority to any
position in another government office or agency in a concurrent
capacity, may, in the discretion of the President, be allowed to receive
additional compensation in the form of allowances or honoraria at such
rates he shall fix and subject to such conditions as he may prescribe.
Such additional compensation shall be paid from the appropriations of
the office or agency benefiting from the concurrent service.
4.78. RULE ON DOUBLE COMPENSATION NOT APPLICABLE
TO PENSION
Where a government official has retired and has received retirement
benefits or is receiving monthly pension re-enters the government, his
receiving salary or compensation does not constitute additional, double
or indirect compensation.
If the law pursuant to which he accepts the other position in
government after his retirement authorizes payment of separation pay,
he cannot however be allowed to credit his years in the government in
the computation of his separation pay as he has been paid the benefits
corresponding to such years of service in the past when he retired; his
separation pay may only be based on his years of service from the
time he re-entered the government service, otherwise it would be
double compensation.
It has been said that a retiree receiving pension or gratuity if he
accepts another government position to which another compensation
is attached.
Thus, a retiree who retired as a judge and has been receiving pension
and who re-enters the government service can continue receiving the
salary attached to the latter. The retirement benefits which he had
received or has been receiving as a judge do not constitute double
compensation. This is but just because said retirement benefits are
rewards for his services as a judge while his salary is his compensation
for his services in the new government position. And if he retires and
meets all retirement requirements in the latter position, he will be
entitled to double retirement pensions.
4.79. PER DIEMS
The Commission on Audit allows payment of per diems under the
following rules:
1. Per diem compensation is generally allowed to members and
secretaries of government boards pursuant to statutory
authority for every attendance in a board meeting where
there is a quorum;
2. Payment of additional per diem for any subsequent meeting
during the day cannot be allowed as the subsequent
meeting would only be a continuation of the previous one
held on the same day;
3. A special meeting or session of a government board to be
valid must be called by the Chairman or any member duly
authorized to call said special meeting or session, otherwise
no per diem should be allowed.
4.80. HONORARIA
Honorarium – a gesture of appreciation for the service of one with
expertise of professional standing in recognition of his broad and
superior knowledge in specific fields.
- in the form of extra monetary remuneration paid
to a government official or employee by virtue of
his office, position or connection with the function
of his office or in the discharge of his duties,
under the following circumstances:
1. resource persons by virtue of their expertise in a specific
subject area or those who are experts in handling sessions;
2. researchers, technical and support personnel;
3. government officials or employees who are on detail or on
special assignment in another office;
4. government officials or employees by virtue of their
membership in inter-agency committees and/or special
projects;
5. officials or employees detailed to foreign assisted projects.
B. BENEFITS
4.81. GENERALLY
Government officials and employees are granted benefits by law, such
as vacation and sick leave, maternity leaves, terminal leaves, terminal
pay, retirement benefits, and many others as provided by law.
4.82. VACATION AND SICK LEAVES
All officials and employees of the government are granted vacation
and sick leaves, either appointed or elected.
All employees are required to go on a minimum of 5 days vacation
leave annually.
4.83. TERMINAL LEAVE PAY
Terminal leave pay – is the cash value of the retiree’s accumulated
leave credits and is applied for by an officer or employee who has
already severed his connection with his employer and who is no longer
working.
It should not be treated as compensation for services
rendered which would reduce it.
An accumulation of credits intended for old age or
separation from the service.
The computation of the money value of terminal leaves is based on
highest monthly salary while in the government service.
It is not considered as benefit, so it cannot be forfeited.
Separation is a condition sine qua non or condition precedent.
Other leaves entitled to government officials and employees:
1. special leave – 3 days
2. adm. Code rehabilitation leave – 6
months (recovery from an accident)
3. maternity leave – 2 months
4. solo parents – 7 days with
certification from dswd
5. vawc leave – availed only of women –
10 days
6. paternity leave – 7 days
7. magna carta for women – dependents when the injury, sickness, disability or death was
gynecological leave – 2 months with
pay
8. maternity leave when there is
adoption of a child below 7 – 2
months
4.84. MERIT AND MONETARY AWARDS SYSTEM
Sec. 6 of R.A. 6713 provides for the establishment of a system of
annual incentives and rewards in order to motivate and inspire public
servants to uphold the highest standards of ethics. It further provides
that such incentives and rewards to government officials and
employees of the year, to be announces in public ceremonies honoring
them, may take the form of bonuses, citations, directorships in
government-owned or controlled corporations, local and foreign
scholarship grants, paid vacations and the like, or automatic
promotions.
The Civil Service Commission is tasked to implement such reward
system.
4.85. ALLOWANCES IN CASE OF INJURY, DEATH OR
SICKNESS
Sec. 699 of the Revised Administrative Code provides for a person in
the service or in the performance of some act in the line of his duty is
injured, killed or dies of injuries received or sickness contracted in line
of duty shall be entitled for compensation.
The benefits therein provided are in addition to what may be due
under the Employees’ Compensation Program administered by GSIS.
4.86. EMPLOYEE’S COMPENSATION
The benefits which he or her heirs may receive as a result of injury,
sickness, disability or death are in the form of income or services,
which consist of medical services, appliances and supplies;
rehabilitation services; temporary total disability; permanent total
disability; permanent partial disability; and death benefits.
For the injury and the resulting disability or death to be compensable,
the injury must be the result of an employment accident satisfying all
of the following conditions:
1. the employee must have sustained the injury during his
working hour;
2. the employee must have been injured at the place
where his work requires him to be; and
3. the employee must have been performing his official
functions.
In order that an employee may be entitled to sickness benefits, they
must have resulted from any illness:
a. definitely accepted as an occupational disease, or
b. caused by employment, subject to proof that the risk of
contracting the same is increased by working
conditions.
No compensation shall be allowed, however, to the employee or his
occasioned by his intoxication; or his willful intention to injure or kill
himself or another; or his notorious negligence.
C. RETIREMENT BENEFITS
4.87. GOVERNMENT SERVICE INSURANCE SYSTEM
The conditions for retirement of GSIS member under Com. Act No. 186
are the following:
 1. Completion of 30 years of service
upon reaching 57 years of age.
- A member shall have the option to retire.
*In all cases of retirement under this Act, the last 3 years of service
before retirement must be continuous and he must have made
contributions for at least 5 years, which contributions may, upon his
request approved by the Board, be deducted from his life annuity
under such terms and conditions as the Board may prescribe.
*Provided, that leaves of absence without pay shall not interrupt the
continuity of the last 3 years of service if the total of said leaves or
separation during the last 3 years immediately prior to retirement does
not exceed 1 year.
*Provided further, That if, prior to the completion of said 3 years’
continuous service, the employee be separated from the service due to
abolition of his position or reduction in force, he shall nevertheless be
entitled to retirement benefit if otherwise qualified.
- In the case of those who are at least 57 years of
age a period of service shorter than thirty years
may be allowed, provided that each year decrease
in service shall be compensated by one-half year
increase in age over 57 years.
- A younger age of retirement may be permitted
provided that each year decrease below 57 years
shall be compensated by 1 year increase in service
over 30 years.
- If an employee is a laborer or one whose work is
mostly manual, the ages mentioned above may be
decreased by more than 5 years at the discretion
of the System.
*In all cases no one shall be entitled to retirement benefit if his age is
below 52 years or his total service is less than 15 years.
2. 30 years of service, regardless of age
The retiring employee will receive a monthly annuity for life.
3. 20 years of service, regardless of age.
Retirement is likewise allowed to any official or employee, appointive
or elective, regardless of age and employment status, who has
rendered a total of at least 20 years of service, the last 3 years of
which are continuous.
Officials and employees retired under this Act shall be entitled to the
commutation of the unused vacation and sick leave, based on the
highest rate received, which they have to their credit at the time of
retirement.
4. Automatic and compulsory retirement.
Retirement shall be automatic and compulsory at the age of 65 years
with lump sum payment of present value of annuity for the first 5
years and future annuity to be paid month, and other benefits given to
a compulsorily retired member as provided, if he has completed 15
years of service and if he has not been separated from the service
during the last 3 years of service prior to retirement; otherwise he
shall be allowed to continue in the service until he shall have
completed the required length of service, unless he is otherwise
eligible for disability retirement. This paragraph shall not apply to
elective officials and constitutional officers whose tenure of office is
guaranteed.
4.88. COMPULSORY RETIREMENT
The retirement law provides: “Unless the service is extended by
appropriate authorities, retirement shall be compulsory for an
employee at 65 years of age with at least fifteen years of service;
Provided, That if he had less than 15 years of service, he shall be
allowed to continue in the service to complete the 15 years.”
Illustrations:
Cena c. CSC – the SC held that the CS memorandum which limited the
provision only to permanent employees in the career service and the
extension of service to only one year is invalid because it read into the
law conditions which are not therein provided and it has no statutory
basis.
Rabor v. CSC – the SC re-examined Cena and held that Circular No. 27
was valid and that the extension of service cannot be more than one
year, which would mean that the employee could at most stay in the
service only until 66 years of age even if he had not completed the 15-
year service.
*In rationalizing its decision, the SC said that when one combines the
doctrine in Toledo case, which held that a person over 57 years of age
could be appointed to the government service, with Cena ruling, “very
strange rules follow. Under these combined doctrines, a person 64
years of age may be appointed to the government service and 1 year
later may demand extension his service for the next 14 years; he
would retire at age 79. The net effect is thus that the general statutory
policy of compulsory retirement at 65 years is heavily eroded and
effectively becomes unenforceable.”
4.89. OPTIONAL RETIREMENT
Where an officer files an application for optional retirement, he cannot
unilaterally withdraw it. The approval of the withdrawal is subject to
the judgment and discretion of the head of office after an assessment
and evaluation of the competence and effectiveness of the employee
within the service. In fact, an employer is authorized to request the
optional retirement of an employee who, by reason of disqualification
is unable to perform satisfactorily and efficiently the duties of his
position.
By and large, except where it is automatic and compulsory upon
reaching the age of 65, retirement is optional on the part of the
employee concerned.
The additional requirement of physical incapacity as an additional
condition for approval of the application for optional retirement where
the applicant is below 65 years old, not being found in the law, is
invalid.
Where the law provides several schemes of retirement which prescribe
different retirement benefits depending upon the age and years of
service of the retiring officer or employee, and the latter meets all the
requirements of each of the schemes, the retiree has the option under
which scheme he wants to be retired which gives him the best benefits
and his choice binds the employer.
4.91. RETIREMENT OF MEMBERS OF THE JUDICIARY.
A member of the judiciary qualifies for retirement and to receive
retirement benefits as provided by law in any of the following
instances:

Optional retirement under R.A. 1616 may be allowed to any official or 1. after having rendered at least 20 years of service in the judiciary or
employee, appointive or elective, regardless of age and employment in any branch of the government, and
status, who has rendered at least 20 years of service, the last 3 years
of which are continuous. If the application for optional retirement is a. having attained 70 years of age, or
denied, the official is entitled to reinstatement with back wages. The
b. resigned by reason of his incapacity to discharge the
head of office may not refuse reinstatement on the ground that the
duties of his office.
official has committed acts of misconduct which merit his summary
dismissal because it violates the official’s right to due process and the
2. after having rendered at least 20 years of service in the
provision on summary dismissal has been repealed by R.A. 6654. If the
government, the last 5 years of which have been continuously
head of office wishes to dismiss the official on the cited ground, the
rendered in the judiciary and having attained at least 60 years of age.
latter should first be allowed to return back to his position so that he
may avail himself of the opportunity to refute the charges imputed to
He will be entitled to a 5-yeat lump sum gratuity computed on the
him.
basis of the highest monthly salary plus the highest monthly aggregate
of transportation, living and representation allowance he was receiving
The right of a retiring officer or employee who has complied with all
on the date of his retirement, and, after said 5-year period, to a
requirements of the retirement statute to be paid his retirement
monthly annuity for the rest of his life.
benefits is enforceable in a court of law. The refusal of the agency
tasked with the implementation of the statute to approve the
If the reason for his retirement be any permanent disability contracted
application for retirement of the officer or employee who has met all
during his incumbency in office and prior to the date of his retirement,
requirement or, once approved, the refusal of the employer to pay the
he shall receive a gratuity equivalent to 10 years and, thereafter,
retirement benefits, is compellable by mandamus, as it does not
having survived the 10 year period, a monthly annuity for the rest of
involve the exercise of discretion on the part of any of them.
his life.

4.90. COMPUTATION OF RETIREMENT BENEFITS.

The computation of retirement benefits is usually based on “highest
rate received.” The phrase “highest rate received” refers to the highest
monthly salary. And “salary” is usually defined as excluding bonuses,
per diems, allowances and overtime pay, or salary, pay or
compensation given in addition to the base pay of the position or rank
as fixed by law or regulation.
The highest basic salary rate includes additional compensation given in
the nature of salary when it is received by an employee as a matter of
right in recompense for services rendered, as authorized by law,
whether or not the additional pay has been fixed in his appointment or
only in his designation, the word “appointment” being used in its
general sense to include designation in an acting capacity.
Where an officer or employee, during his tenure, serves as acting head
of an office when the incumbent is on leave or is unable to discharge
his duties and is paid the salary corresponding thereto, or where he is
assigned to another position and is paid the salary pertaining thereto,
which is higher than that of his regular salary, the higher salary will be
used as basis in the computation of his retirement benefits.
The general rule is that government service rendered on a per diem
basis is not credible for computing the length of service for retirement
purposes. In essence, the grant of retirement benefits necessitates an
obligation on the part of the employee to contribute to the insurance
fund. Such obligation only arises where the employee is receiving
“salary, pay or compensation” and not per diem, which is not capable
of paying off the premium contributions to the GSIS. The GSIS, not the
Civil Service, has the power to determine what service is creditable for
retirement purposes.
They are entitled to monthly pensions in the amount equivalent to the
current salary and allowance of an incumbent judge, and pursuant to
the same rule, they are also entitled to upward adjustment of their 5
year period lump sum gratuity when, during said five-year period, their
counterparts in the Supreme Court or the Court of Appeals received
salary increases.
Retiring member of the judiciary is subject to certain restrictions:
- during the time that he is receiving pension shall
not appear as counsel before any court in any civil
case wherein the Government or any subdivision
or instrumentality thereof is the adverse party, or
in any criminal case wherein an officer or
employee of the Government is accused of an
offense committed in relation to his office,
- collect any fee for his appearance in any
administrative proceedings to maintain an interest
adverse to the Government
- also a condition of the pension that when a
member of the judiciary entitled to benefits shall
assume an elective office, he shall not, upon
assumption of office and during his term, receive
the monthly pension due him. (this part already
REPEALED)
4.92. RETIREMENT BENEFITS OF CONSTITUTIONAL
OFFICERS.
A chairman or member of Constitutional Commissions is entitled to
retire and to receive retirement and pension benefits:
1. upon completion of his term; or
2. by reason of his inability to discharge the duties of his office; or
3. dies while in the service; or
4. resigns after reaching 60 years of age but before the expiration of
his term and having rendered not less than 20 years of service in the
government.
It has been held that a courtesy resignation of a member of the
Comelec is not resignation in the legal sense for it is not necessarily a
reflection of a public official’s intention to surrender his position, but a
submission to the will of the political authority and appointing power,
the acceptance of which by the latter rendered his term completed, in
the same category as that of an official holding a primarily confidential
position whose term ends upon his superior’s loss of confidence in him.
As such, the constitutional officer is entitled to retire and receive all
retirement benefits under the law and entitled him to retire with all
benefits granted by law.
Benefits same as Judiciary.
4.93. NATURE OF RETIREMENT BENEFITS.
Retirement benefits to government employees are given as rewards
for giving the best years of their lives to the service of their country. In
exchange for their selfless dedication to government service, they
enjoy security of tenure and are ensured of a reasonable amount of
support after they leave the government.
To a public servant, pension is not a gratuity but rather a form of
deferred compensation for services performed and his right thereto
commences to vest upon his entry into the retirement system and
becomes an enforceable obligation in court upon fulfillment of all
conditions under which it is to be paid.
Pension takes of the nature of retained wages of the retire for a
double purpose:
1. to entice competent men and women
to enter the government service, and
2. permit them to retire from the service
with relative security, not only for
those who have retained their vigor,
but more so for those who have been
incapacitated by illness or accident.
Pension and retirement benefits are exempt from attachment,
garnishment, levy or execution. They cannot be withheld from the
retiree to be applied to his indebtedness to the government.
Retirement benefits, including the money value of the accumulated
leave credits, which are paid to retiring officers or employees, are
exempt from income or withholding tax.
4.94. RETIREMENT LAWS CONSTRUED LIBERALLY.
Retirement laws are liberally interpreted in favor of the retiree because
their intention is to provide for his sustenance and hopefully even
comfort, when he no longer has the stamina to continue earning his
livelihood. The liberal approach aims to achieve the humanitarian
purposes of the law in order that the efficiency, security and well-being
of government employees may be enhanced.
Illustrations:
Ortiz v. Comelec – the question raised is whether a commissioner of
the Comelec is deemed to have completed his term and entitled to full
retirement benefits under the law which grants him 5-year lump sum
gratuity and thereafter lifetime pension, who “retires from the service
after having completed his term of office,” when his courtesy
resignation submitted in response to the call of the President following
the EDSA revolution is accepted.
SC ruled that he is entitled to all retirement benefits. It held
that the “courtesy resignation” is not resignation in contemplation of
law because the act lacked the clear intention to surrender his position
and was a mere manifestation of submission to the will of the political
authority and appointing power.
In Re Application for Gratuity Benefits of Associate Justice Efren I.
Plana – the issue raised is whether Justice Plana is entitled to gratuity
and retirement pay when, at the time his courtesy resignation was
accepted following the EDSA revolution and establishment of a
revolutionary government under the Freedom Constitution, he lacked a
few months to meet the age requirement for retirement under the law
but had accumulated a number of leave credits which, if added to his
age at the time, would exceed the age requirement.
SC ruled that Justice Plana was entitled to full retirement
benefits.
In re Martin – the issue raised is whether a justice of the SC, who
availed of the disability retirement benefits pursuant to the provision
that “if the reason for the retirement be any permanent disability
contracted during his incumbency in office and prior to the date of
retirement he shall receive only a gratuity equivalent to 10 years’
salary and allowances aforementioned with no further annuity payable
monthly during the rest of the retiree’s natural life,” is entitled to a
monthly lifetime pension after the ten-year period.
He is entitled to lifetime pension.
4.95. RETIREMENT UNDER REPUBLIC ACT 6683.
This law provides for benefits for early retirement and voluntary
separation from the government service as well as for the involuntary
separation due to reorganization.
Sec. 2. Coverage – shall cover all appointive officials and
employees of the National government, including GOCCs with original
charters, as well as the personnel of all LGUs. The benefits authorized
under this Act shall apply to all regular, temporary, casual and
emergency employees, regardless of age, who have rendered at least
a total of 2 consecutive years of government service as of the date of
separation. Uniformed personnel of AFP including those of the PC-INP
are excluded from the coverage of this Act.
The above provision extends to coterminous employee. For if casual
and emergency employees are included in the law, there is no reason
why coterminous employees, who like the former are also non-career
civil servants, should be excluded from its coverage. To hold otherwise
is to violate their right to equal protection of law.
4.96. RETIREMENT BENEFITS NOT LIABLE TO PAY DEBTS.
The benefits granted therein shall not be subject to attachment,
garnishment, levy or other processes.
4.97. DOUBLE PENSION IS NOT ALLOWED; WHEN
ALLOWED.
It is well-settled that in the absence of an express legal exception,
pension and gratuity laws should be so construed as to preclude any
person from receiving double pension. If a retiring officer or employee
is entitled to retire under 2 or more retirement laws, he should choose
which one he should avail of. He cannot be entitled to both retirement
benefits, unless there is a law expressly authorizing it. This was the
rule prior to the 1987 Constitution.
This Constitution now provides that “Pensions or gratuities shall not be
considered as additional, double or indirect compensation.” This
constitutional provision will now entitle a pensioner, who re-enters the
government service and thereafter retires after meeting all
requirements for retirement, to receive double retirement benefits.
D. OTHER PRIVILEGES
4.98. LEGAL SERVICES FROM SOLICITOR GENERAL AND
GOVERNMENT LAWYERS.
The Office of the Solicitor General has no authority to represent him in
such a civil suit. The Solicitor General can thus properly represent a
public official in a suit which includes a claim for damages arising not
from a crime but from the performance of his duties. He may therefore
avail of the legal services of the Solicitor General.
With respect to local government officials, they are entitled to
representation by government lawyers if they are sued in their official
capacity and no damages are sought which, if granted, will not make
them personally liable, and their securing the services of private lawyer
may render the latter’s representation invalid. If, on the other hand,
the government official may be rendered personally liable considering
the allegations and relieves sought in the complaint, they may not be
represented by the government lawyers, but should instead retain
private counsel.
4.99. LEGISLATIVE PRIVILEGES.
The Constitution provides: “A Senator or Member of the House of
Representatives shall, in all offenses punishable by not more than 6
years imprisonment, be privileged from arrest while Congress is in
session. No member shall be questioned noe be held liable in any
other place for any speech or debate in the Congress or in any
committee thereof.”
1. Immunity from arrest:
This provision was construed as applicable only to civil arrests, and not
arrests issued in a criminal case filed against the legislature.
It has expanded the privilege to include the privilege from arrest
issued in a criminal case. 2 conditions must be present to enjoy the
privilege:
1. the crime against which he has been charged is one
which carries a penalty of not more than 6 years
imprisonment.
2. the Congress is in session.
If in recess, can still be arrested for a crime
involving a penalty less than 6 years.
Art. 145, RPC – provides that the penalty of
prision mayor shall be imposed upon any person
who shall use force, intimidation, threats, or fraud
to prevent any member of the National Assembly
from attending the meetings of the Assembly or
any of its committees or subcommittees or
divisions thereof, from expressing his opinions or
casting his vote.
Where a person who has been charged with statutory rape and has
been convicted by the trial court and his case is on appeal to the SC is
elected as Congressman, his election did not thereby amount to
condonation of his offense; neither does it entitle him, pending appeal
of his case, to be free from confinement and to be allowed to attend
sessions of Congress, for the people elected him with full awareness of
the limitations on his freedom of action and movement.
Immunity from arrest for a crime punishable by not more than 6 years
of imprisonment does not extend immunity from being preventively
suspended as a member of the legislature for his crime that requires
preventive suspension under Sec. 13 of the Anti-Graft and Corrupt
Practices Act, as the latter does not exclude from coverage members
of Congress.
2. Immunity from civil and criminal
action for speech or debate:
The second part of the provision is what is known as the speech or
debate clause.
Jimenez v. Cabangbang – “Said expression refers to utterances made
by Congress man and Senators in the performance of their official
functions, such as speeches delivered, statements made, or votes cast
in the halls of Congress, while the same is in session, as well as bills
introduced in Congress, whether the same is in session or not, and
other acts performed by Congressmen, either in Congress or outside
the premises housing its offices, in the official discharge of their duties
as members of Congress and of Congressional Committees duly
authorized to perform its functions as such, at the time of the acts in disciplined in a process applicable to other public officers. And if they
question.” are lawyers, they may not be disbarred, except after their terms have
expired.

The clause extends to drafting a report submitted to committees as

well. CHAPTER V

CODE OF CONDUCT AND DISABILITIES

The constitutional provision contains no conditions, distinctions or

qualifications. Unlike the privilege accorded to lawyers and litigants in
judicial proceedings, evolved from judicial rulings which require that A. CODE OF CONDUCT
the pleadings, remarks or statements in the course of such
proceedings be relevant, pertinent and material to the subject of
inquiry to be considered privileged. The privilege under the speech or 5.101. GENERALLY.
debate clause is elevated to a constitutional level, requires no
qualifications for its enjoyment, and is therefore absolute.
The Constitution mandates all public officers and employees to serve
with responsibility, integrity, and efficiency.

5.102. NORMS OF CONDUCT, GENERALLY.

The falsity or defamatory language of a report or speech by any
member of Congress made as part of his legislative functions within
the halls of Congress or before any of its Committees does not make R.A. NO. 6713 provides:
the report any less than absolutely privileged. For this reason, a
member of Congress may thus deliver a speech or submit a report in Sec. 4. Norms of Conduct of Public Officials and Employees.
the discharge of his legislative function, slandering and destroying
others with impunity or baselessly defaming a private citizen, without a, commitment to public interest
being held liable therefore criminally or civilly for libel.
b. professionalism
Illustrations:
c. justness and sincerity
Osmena v. Pendatum – Cong. Osmena delivered a speech in Congress
imputing to the President of the Philippines the crime of bribery in the d. political neutrality
grant of pardons to convicts. For having made such libelous and
serious criminal imputations and failing to produce evidence in support e. responsiveness to the public
thereof, he was, by resolution of the House, suspended from office for
disorderly behavior. f. nationalism and patriotism

SC held that he could not be held liable criminally or civilly g. commitment to democracy
for his defamatory speech outside Congress, except in Congress itself
by his peers. h. simple living

Vera v. Avelino – Senate passed a resolution, known as Pendatum 5.103. DUTY TO ACT PROMPTLY.
resolution, ordering that Vera, Diokno, and Romero shall not be sworn,
nor seated as member until the election protest lodged against them
The Code requires public officers to act with dispatch on requests sent
had not been terminated. The resolution stated in part that the worst
them. It provides:
terrorism resigned in Pampanga, Tarlac and Nueva Ecija during and
after the election, and that if the elections held in the aforesaid
Sec. 5. Duties of Public Officials and Employees:
provinces were annulled as demanded by the circumstances
mentioned in the report if the Commission. In other words, the a. act promptly on letters and requests
resolution attributed to them election offenses. b. submit annual performance reports
c. process documents and papers expeditiously
SC held that the acts of the authors of the resolution were d. act immediately on the public’s personal transactions
covered by the speech or debate clause an they could not be
questioned thereon.
5.104. DUTY TO MAKE PUBLIC RECORDS ACCESSIBLE TO THE
PUBLIC.

4.100. PRIVILEGES OF IMPEACHABLE OFFICERS.

R.A. 6713 provides that public officials must make public documents
accessible to, and readily available for inspection by, the public within
Impeachable officers cannot be suspended nor removed, except by reasonable hours and their violation of this provision make them
impeachment which is a very tedious process. They cannot be criminally liable therefore in accordance with Sec. 11.
The rule implements the constitutional right of the people to
information of public concern.
Valmonte v. Belmonte – the issue raised is whether or not media
practitioners have the right to have access to GSIS records of loans
extended to members of the Batasang Pambansa.
SC ruled that petitioners have such right, but not the right to
compel custodians of records to prepare lists, abstracts, summaries
and the like concerning said loans, as the constitutional provision does
not give them such right.
5.105. EXCEPTION TO THE RULES.
*State secrets of military, diplomatic and similar matters.
*The government’s privilege to withhold the identity of persons who
furnish information of violations of laws.
*Those affecting national security.
The question of whether the document sought involves public interest
is first addressed to the government agency having custody of the
desired information. However, this does not give the agency any
discretion to grant or deny access. In case of denial of access, the
government agency has the burden of showing that the information
requested is not of public concern, or, if it is of public concern, that the
same has been exempted by law from the operation of the guarantee.
To safeguard the constitutional right, every denial of access by the
government agency concerned is subject to review by the courts, and
in the proper case, access may be compelled by a writ of mandamus.
In the final analysis, it is for the courts to determine in a case by case
basis whether the matter at issue is of interest or importance, as it
relates to or affects the public. However, it is not enough that the
information sought is of public interest. For mandamus to lie in a given
case, the information must not be among the species exempted by law
from the operation of the constitutional guarantee.
While R.A. 6713 makes it the duty of a public officer to make the
public documents accessible to, and readily available for inspection by,
the public within reasonable working hours, Se. 7(c) of the same law
prohibits public officials or employees to use or divulge, confidential or
classified information officially known to them by reason of their office
and not made available to the public, either “(1) To further their
private interest, or give undue advantage to anyone; or “(2) to
prejudice the public interest,” which is a criminal offense or a ground
for disciplinary action.
5.106. DUTY TO MAKE STATEMENT OF ASSETS AND
LIABILITIES.
Every public officer or employee is duty bound to file a statement of
assets and liabilities and to make financial disclosures including those
of their spouses and of unmarried children under 18 years of age living
in their households.
Two documents shall contain information on the following:
a. real property
b. personal property
c. all other assets such as investments, etc.
d. liabilities, and
e. all business interests and financial connections.
The documents must be filed:
a. within 30 days after assumption of office
b. on or before April 30, of every year thereafter; and
c. within 30 days after separation from the service.
Husband and wife who are both public officials or employee may file
the required statements jointly or separately.
Shall be filed by:
1. constitutional and national elective officials with the national
office of the Ombudsman;
2. senators and congressman, with the secretaries; justices
with clerk of court of the SC; judges, with the court
administrator; and all national executive officials with the
Office of the President;
3. regional and local officials and employees, with the Deputy
Ombudsman in their respective regions;
4. officers of the armed forces from the rank of colonel or naval
captain, with the Office of the President, and those below
said ranks, with the deputy ombudsman in their respective
regionsl and
5. all other public officials and employees, defined in R.A. 3019,
as amended, with the Civil Service Commission.
It shall be the duty of every public official or employee to identify and
disclose, to the best knowledge and information, his relatives in the
Government.
Any and all statements filed under this act, shall be made available for
inspection at reasonable hours.
Prohibited acts – It shall be unlawful for any person to obtain or use
any statement filed under this Act for:
a. any purpose contrary to morals or public policy; or
b. any commercial purpose other than by news and
communication media for dissemination to the
general public.
5.107. DUTY TO MAKE DIVESTMENT.
Sec. 9. Divestment – A public official or employee shall avoid conflict of
interest at all times. When a conflict of interest arises, he shall 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.
The same rule shall apply where the public official or
employee is a partner in a partnership.
The requirement of divestment shall not apply to those who
serve the Government in an honorary capacity nor to laborers and
casual or temporary workers.
 5.108. DUTY OF PUBLIC PROSECUTOR.
A public prosecutor is a quasi-judicial officer. He is the representative
of an ordinary party to a controversy, but of sovereignty whose
obligation to govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case but that justice shall be done.
A prosecuting officer should observe a high standard of morality and
integrity.
A public prosecutor should not allow the trial in the hands of a private
prosecutor to degenerate into a private prosecution. The
administration of criminal law should never be the vehicle of
oppression for the gratification of private malice or the
accomplishment of private gain or advantage. The public prosecutor
should, in such event, take over the active conduct of the litigation.
The protection of innocent and law-abiding citizens from undue
harassment in the prosecution of any crime should remain paramount,
irrespective of the personalities.
5.109. CONDUCT REQUIRED OF GOVERNMENT LAWYERS.
The Code of Professional Responsibility provides that the canons shall
apply to lawyers in government service in the discharge of their official
tasks. The reason for the rule is that a lawyer does not shed his
professional obligations upon his assuming public office. In fact, his
professional obligations should make him more sensitive to his official
obligations because a lawyer’s disreputable conduct is more likely to be
magnified in the public eye. And want of moral integrity is to be more
severely condemned in a lawyer who holds a responsible public office.
B. DISABILITIES
5.110. GENERALLY.
Where, by law, an elective officer is disqualified to hold another
position or is subject to certain disabilities, the same restrictions apply
to an appointive officer to any position. The prohibition or restriction
should be construed te refer to a person holding an office, the
assumption to which, while generally determined by an election, is not
precluded by appointment. An appointive officer can exercise all
powers and prerogatives attached to the office, and all restrictions and
disabilities arising therefrom should also apply to him.
5.111. PROHIBITED ACTS AND TRANSACTIONS.
a. financial and material interest – directly or
indirectly in any transaction requiring the approval
of their office.
b. outside employment and other activities related
thereto
1. own, control, manage or accept
employment as officer, consultant,
counsel, broker, agent, trustee, or
nominee in any private enterprise
related, supervised or licensed by
their office unless expressly allowed
by law.
2. engage in the private practice of their
profession unless authorized by the
Constitution or by law, provided that
such practice will not conflict or tend
to conflict with their official functions.
3. recommend any person to any
position in a private enterprise which
has a regular or pending official
transaction with their office.
These prohibitions shall continue to apply for a period of 1
year after resignation, retirement, or separation from public
office, except in the case of subparagraph b (2) above, but
the professional concerned cannot practice his profession in
connection with any matter before the office he used to be
in which case the one year prohibition shall likewise apply.
5.112. CONSITUTIONAL PROHIBITIONS.
Sec. 14 – No senator or member of the house of representatives may
personally appear as counsel before any court of justice or before the
Electoral Tribunals, or quasi-judicial and other administrative bodies.
Neither shall he, directly or indirectly, be interested financially in any
contract with, or in any franchise or special privilege granted by the
Government, or any subdivision, agency, or instrumentality thereof,
including any GOCC, or its subsidiary, during his term of office. He
shall not intervene in any matter before any office of the Government
for his pecuniary benefit or where he may be called upon to act on
account of his office.
Sec. 13 – the president, vice-president, the members of the cabinet
and their deputies or assistants (same as sec. 14)
The spouse and relatives by consanguinity or affinity within
the fourth civil degree of the President shall not during his tenure be
appointed as members of the Constitutional Commissions, or the Office
of the Ombudsman, or as Secretaries, Undersecretaries, chairman or
heads of bureaus or offices, including GOCCs and their subsidiaries.
Sec. 2 – No member of a constitutional commission shall, during his
tenure, hold any other office or employment. (Next sentence same as
sec. 14.)
The above prohibitions apply to the Ombudsman and his deputies
during their tenure.
5.113. PROHIBITION AGAINST SOLICITATION OF GIFTS.
Public officials and employees are prohibited from soliciting or
accepting gifts.
As to gifts or grants from foreign governments, the Congress consents
to –
i. acceptance of a gift of nominal value tendered and
received as a souvenir or mark of courtesy;
ii. a gift in nature of a scholarship or fellowship grant or
medical treatment;
iii. travel grants or expenses for travel taking place entirely
outside the Philippines and permitted by the head of
office, branch or agency to which he belongs.
Unsolicited gift
Of nominal value
Not given as a favor
A judge violates this prohibition when he accepts the free use, for a
year, of car, and his availment for free of battery recharging services
of the shop, of a litigant who has a pending case before him.
5.114. PROHIBITION AGAINST PARTISAN POLITICAL
ACTIVITIES.
The 1987 Constitution provides that “no officer or employee in the civil
service shall engage, directly or indirectly, in any electioneering or
partisan political activity.”
The Omnibus Election Code makes public officers and employees liable
for election offense when it provides: “Any officer or employee in the
civil service, except those holding political officers, any officer,
employee, or member of the AFP, or any police officer, special forces,
home defense forces, barangay self-defense units and all other para-
military units that now exist or which may hereafter be organized who,
directly or indirectly, intervenes, in any election campaign or engages
in any political activity, except to vote or to preserve public order, if he
is a peace officer.”
Exempted from the prohibition are officers or employees holding
political offices. These officials or employees may engage in partisan
political activities without being held liable therefore, except as
otherwise expressly provided. Political offices refer to those offices
which are not connected immediately with the administration of
justice, or the execution of the mandates of a superior officer, - as the
President or secretaries or heads of departments in the executive
department. They also include national, provincial, city and municipal
elective positions. Public officers holding political offices and those
holding elective positions, other than barangay officials, may thus
engage in partisan political activities, they being exempted from the
restrictions.
5.115. PROHIBITION AGAINST ENGAGING IN STRIKE.
The 1987 Constitution provides that the “right to self-organization shall
not be denied to government employees, and that the “right of the
people, including those employed in the public and private sectors, to
form unions, associations, or societies for purposes not contrary to law
shall not be abridged.”
It is settled that employees in the public service may not engage in
strikes. While the Constitution recognizes the right of government
employees to organize, they are prohibited from staging strikes,
demonstrations, mass leaves, walk-outs and other forms of mass
action which will result in temporary stoppage or disruption of public
services. The right of government employees to organize is limited
only to the formation of unions or associations without including the
right to strike.
Labor unions in the government section may, however, bargain for
better terms and conditions of employment.
Government employees, including those GOCCs which were organized
not under the general corporation law but under special charters of
their own, fall under the civil service. While they are allowed to form or
join labor unions, there is yet no law authorizing them to strike. In
case of labor dispute between the employees and the government, the
Public Sector Labor – Management Council, not the Department of
Labor and Employment, shall hear the dispute.
Civil Service employees are prohibited from staging strikes and taking
unauthorized mass actions which disrupt public services. They may be
held administratively liable therefore.
(Pages 404-470)
Part II Chapter V. Code of Conduct and Disabilities
B. Disabilities and Restrictions
Prohibition against holding two or more positions
o Sec. 13, Art.VII of the Constitution:
o GR: The President, Vice-president, the Members of the
Cabinet and their deputies or assistants shall not hold
any office or employment during their tenure.
o Exception: unless otherwise provided by law
o 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 GOCCs.
o They shall strictly avoid conflict of interest in the
conduct of their office.
o The spouse and relatives by consanguinity or affinity
within the fourth civil degrees of the President
shall not during his tenure be appointed as members of
Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including
GOCCs and their subsidiaries.
o Section 7, par.2, Article IX-B of the 1987 Constitution (on Civil
Service)
o No elective official shall be eligible for appointment or
designation in any capacity to any public office or
position during his tenure
o No appointive official shall hold any other office or
employment in the government or any subdivision,
agency or instrumentality thereof, including GOCCs and
their subsidiaries
 Exception: unless otherwise allowed by law or
primary functions of his position
o Section 7, Article IX-B contains a blanket prohibition against the
holding of multiple offices or employment in the government
subsuming both elective and appointive public officials.
o Section 13, Article VII specifically prohibits the Pres., VP,
members of the Cabinet, their deputies and assistants
o In other words, Sec. 7 Art. IX-B is meant to lay down the general
rule applicable to elective and appointive employees, while Sec.
13, Art. VII is meant to be the exception applicable only to the
Pres., VP, members of the Cabinet, their deputies and assistants
o Framers of the Consti intended to impose a stricter prohibition on
the President and his official family
o The prohibition imposed on the Pres and his official family is all-
embracing and covers both public and private office or
employment
o The disqualification is absolute
o Other provisions of the Consti on the disqualifications of certain
public officials
 Sec.13, Art. VI: No Senator or Member of the House of
Reps. may hold any other office in the Governmnet
 Sec.5(4), Art. XVI: No member of the Armed Forces in the
active service shall, at any time be appointed in any capacity
to a civilian position in the government including GOCCs and
its subsidiary
o The prohibition in Sec. 13, Art.VII does not apply to holding ex-
officio positions
 SC held: the prohibition… must not 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 official’s office. The
 reason is that these posts do not compromise ‘any
other office’ within the contemplation of the
constitutional prohibition but are properly an imposition
of additional duties and functions on said officials.
 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. Ex-officio denotes an ‘act done in an official
character, or as a consequence of office, and without
any other appointment of author than that conferred by
the office. An ex-officio member of the board is one
who is a member by virtue of his title to a certain office
and without further warrant or appoint.
 The official in an ex-officio position has no right to
receive additional compensation for his services in the
said position. The reason is that these services are
already paid for and covered by the compensation
attached to his principal office… therefore he is not
entitled to collect any extra-compensation, whether it
be in the form of diem or honorarium or an allowance
 This restriction to receive additional compensation
applies to other officials who sit as alternates of cabinet
secretaries in ex-officio positions.
Restriction against engaging in the practice of law
o GR: the appointment or election of an attorney to a government
office disqualifies him from engaging in the private practice of
law
 Exception: lawyer member of the Legislature is NOT
absolutely prohibited from engaging in the practice of
his profession
o Reason: public office is a public trust and a public officer or
employee is obliged not only to perform his duties with the
highest degree of responsibility, integrity, loyalty and efficiency
but also with exclusive fidelity.
o The disqualification is intended to preserve the public trust in a
public office, avoid conflict of interests or a possibility thereof,
assure the people of impartiality in the performance of public
functions and thereby promote the public welfare
o Public officials who are absolutely prohibited from engaging in
the private practice of law or giving professional advices to the
clients:
 Judges and other officials and employees of the
superior courts, of the office of the Sol.Gen. and of
other government prosecution offices
 President
 VP
 Members of the Cabinet and their deputies and
assistants
 Members of the Constitutional Commissions
 Civil service officers
 Employees whose duties and responsibilities require
the entire time be at the disposal of the government
o When any one of these officials is appointed or elected and has
qualified, he ceases, as a general rule, to engage in the private
practice of law and his right to practice is suspended as long as
he occupies such position.
o Lawyer member of the Legislature is not absolutely prohibited
from engaging in the practice of his profession
 He is only prohibited from appearing as counsel
before any court of justice or before the Electoral
Tribunals or quasi-judicial and other administrative
bodies
 What is prohibited is the “appearance” in court and
other bodies
 “appearance” includes not only arguing a case before
any such body but also filing a pleading on behalf of
the client as by simply filing a motion, plea or answer
 A senator or a congressman cannot file pleadings
 Neither can he allow his name to appear in such
pleading by itself or as part of the firm name under
the signature of another qualified lawyer because the
signature of an agent amounts to a signing of a
signing by non-qualified Senator or Congressman
 He cannot do indirectly what the Constitution prohibits
directly
 His name should be dropped from the firm name, of
which he is a partner, whenever the firm files a
pleading on behalf of a client
 Under the Local Government Code (LGC), all
governors, city and municipal mayors are prohibited
from practicing their profession or engaging in any
occupation other than the exercise of their functions
as local chief executives. In other words, they cannot
engage in the practice of law.
 Members of sanggunian may engage in the practice of
law
 provided: they shall not appear as
counsels before any court in any civil case
wherein a local government unit or
any office, agency or instrumentality
of the government is the adverse party
 They shall not appear as counsel in any
criminal case wherein an officer or
employee of the national or local
government is accused of an offense
committed in relation to his office
 They shall not collect any fee for their
appearance in administrative proceedings
involving Local Government Unit (LGU)
 They shall not use property and personnel
of the Government except when the
sanggunian member concerned is defending
the interest of the government
o GR: A civil service officer or employee whose duty or
responsibility does not require his entire time to be at the
disposal of the Government may not engage in the private
practice of law
 Exception: with a written permission from
the head of the department concerned, he
may exercise his profession as a lawyer
o Government officials who, by express mandate of the law,
are prohibited from practicing law, may not, even with the
consent of the department head concerned, engage in the
practice of law.
o But if so authorized by the department head, he may in
isolated cases, act as counsel for a relative or close
family friend
o To simplify:
GR: A civil service officer or employee whose duty or
responsibility does not require his entire time to be at the
disposal of the Government may not engage in the private
practice of law
 Exception: with a written permission from the head of the
department concerned
Exception to the exception: Government officials who, by
express mandate of the law, are prohibited even with the
consent of the department head concerned
Isolated cases: if authorized by the head of the
department concerned act as counsel for a relative or a
family friend
Prohibition against practice of other professions
 To avoid conflicts of interest between the discharge of their
public duties and the private practice of their profession
Sec. 90 of the LGC (RA 7160)
o All governors, city and municipal mayors are prohibited from
practicing their profession or engaging in any occupation
other than the exercise of their functions as local chief
executives
o Sanggunian members may practice their profession, engage
in other occupation, or teach in schools except during
sessions hours
o Doctors of medicine may practice their profession during
official hours of work only in cases of emergency: provided,
that the officials concerned do not derive monetary
compensation therefrom
Restriction against public office to promote private interest
o If the law allows a public official to practice law
concurrently, he must not use his public position to
feather his law practice
o If the law does not allow him to practice his profession,
he must not do so indirectly by being a silent partner in
a law firm or by securing legal business for a friend in
the active practice of law and receiving a share in the
attorney’s fees for his efforts
o He should not only avoid impropriety but also avoid the
appearance of impropriety
Code of Conduct and Ethical Standards for Public
Officials and Employees
Public officials and employees during their incumbency shall
not:
1. Own, control, manage or accept employment as officer,
employees consultant, counsel, broker, agent, trustee
or nominee in any private enterprise regulated,
supervised or licensed by their office unless allowed by
law
2. Engage in the private practice of their profession unless
authorized by the Consti or law, provided that such
practice will not conflict or tend to conflict with their
official functions
3. Recommend any person to any position in a private
enterprise which has a regular or pending official
transaction with their office
4. Use or divulge confidential or classified information
officially known to them by reason of their office and
not available to the public either to “further their
private interests or give undue advantage to anyone, or
to prejudice the public interest
Restriction against engaging in private business
o No officer or employee shall engage directly in any private
business, vocation, profession… without a written permission
from the head of the department or agency
o If employee is granted permission, the time so devoted
outside of office hours should be fixed by the chief of the
agency to the end that it will not impair in any way the
efficiency of the officer or employee
o No permission is necessary in the case of investments which
do not involve any real or apparent conflict between his
private interests and public duties or in any way influence
him in the discharge of his duties, but he shall not take part
in the management of the enterprise or become an officer
or member of the board of directors
Restrictions against accepting certain employment
o The restrictions against a public official from using his public
position as a vehicle to promote or advance his private
interests extends beyond his tenure on certain matters in
which he intervened as a public official
o After leaving the government service, a lawyer shall not
accept engagement or employment in connection with
any matter in which he had intervened while in the
said service
o He cannot accept any work or employment from anyone that
will involve or relate to the matter in which he intervened as
a public official, except on behalf of the body or authority
which he served during his public employment
o Section 7(b) of RA 6713 prohibits any former public official
or employee for a period of one year after retirement or
separation from office to practice his profession in
connection with any matter before the office he used to be
with.
o Sec. 1 of RA 910 provides that it is a condition of the
pension provided herein that no retiring judge of a court of
record or city or municipal judge during the time he is
receiving the said pension shall appear as counsel in any
court in any civil case wherein the Government or any
subdivision, or instrumentality thereof is an adverse party or
in a criminal case wherein the officer or employee of the
Government is accused of an offense committed in relation
to his office, collect any fee for his appearance in any
administrative proceedings
Chapter VI Security of Tenure and Disciplinary Actions
Security of tenure generally
o Security of tenure – means that no officer or employee in
the civil service shall be suspended or dismissed except for
just cause provided by law and after due process or after he
shall have the opportunity to defend himself
o In this sense, public position is a property right, which
cannot be taken without due process
Disciplinary action generally
o The principle is that when an officer or employee is
disciplined, the object sought is not the punishment of such
officer or employee but the improvement of the public
service and the preservation of the public’s faith and
confidence in the government
 o A disciplinary action is a proceeding which seeks the
imposition of disciplinary sanction against or the dismissal or
suspension of a public officer or employee on any grounds
prescribed by law after due hearing
o Dismissal means the ouster of the incumbent before the
expiration of his term
o Suspension means a qualified expulsion; a temporary
withdrawal or separation
o A dismissal or suspension for a cause not provided by law
or without due notice or hearing is illegal as volatile of the
security of tenure provision in the Consti
o The disciplining authority to remove or suspend a public
official authorized by law to do so
o In the absence of such law, the same is deemed lodged in
the same body or person in which the power to appoint is
vested:
o Civil Service Commission
o Heads of the department or offices
o Local chief executives
o Ombudsman
o President
o Sanggunian concerned
o Governors and mayors
o SC over appellate justices and judges of lower
courts and court personnel
o Congress with respect to its members
Security of tenure
Scope of security of tenure
o The security of tenure provision of the Consti assures that
the suspension or dismissal of a public officer or employee
be made only for cause provided by law
o SC ruled that dismissal for cause does not necessarily mean
that the dismissed officer/employee must be charged in the
court or administratively
o Dismissal for cause implies that there is a reasonable
ground provided by law to justify the dismissal
o All that is required of the disciplining authority is to give the
officer or employee concerned a written show-cause order to
explain within a specified period why he should not be
dismissed for reasons therein specified… that if the
disciplining authority finds the explanation not satisfactory,
the officer or employee maybe dismissed and the latter who
disagrees with the dismissal, may challenge the ruling in the
appropriate forum
o The guarantee of security of tenure is an important object of
the civil service system because it affords a faithful
employee permanence of employment, for the period
prescribed by law and frees the employee from the fear of
political and prejudicial reprisal
o The guarantee is also an act of social justice public officer
or employee should be protected against any arbitrary and
unjust deprivation of his job
When security of tenure attaches
o Once an appointment is issued and completed and the
appointee assumes the position, he acquires a legal, not
merely an equitable right to the position which is protected
by statute and the Consti
o What characterizes the security of tenure is not the nature
of the appointment
o A permanent appointment is protected by the security of
tenure provision
o Where the appointment is temporary or in an acting
capacity, which can be terminated at any time, the officer
cannot invoke the security of tenure guaranty of the Consti
o Temporary appointments or appointments in acting capacity
are terminable at the pleasure of the appointing authority
o Appointment in the career service must be submitted and
approved by the Civil Service Commission; in the absence of
such approval, the appointee cannot enjoy the guarantee of
security of tenure
o Tolerance, acquiescence or mistake of proper officials,
resulting in the non-observance of the approval
requirements does not render the requirements ineffective
and unenforceable appointee only considered as a de
facto officer who can be removed from office without cause
Officers and employees covered by security of tenure
o GR: the guarantee of security of tenure is extended to both
those in career and non-career service positions
o Exception: Cabinet Secretaries who hold office at
the pleasure of the President as well as those
occupying confidential positions and coterminous
employees
o Mantle of protection against arbitrary dismissal is accorded
to an employee even if he is a non-eligible and holds a
temporary appointment. Thus, termination from the service
of a non-eligible who has been singled out from among
many other non-eligibles to give way for the appointment of
another eligible is arbitrary and is entitled to reinstatement
and award of damages
o Except cabinet members whose appointments are subject to
confirmation by the Commission on Appointment, an
appointee who has all the qualifications for the office and
who has been extended an ad interim appointment is
covered by the constitutional provision on security of tenure
Personnel Action
Personnel action amounting to illegal removal
1. Extending temporary appointment
o Extending a temporary appointment to a permanently
appointed employee to another position cannot be used
to oust an incumbent
o While an acting appointment is merely temporary and
revocable at the pleasure of the appointing authority,
this temporary appointment cannot be used by the
appointing authority as a justification in order to evade
or avoid the security of tenure principle
o Permanent employee remains a permanent employee
unless he is validly removed
o Extending to him a temporary appointment and
thereafter removing him
2. Transfer or reassignment
o Transfer is a movement from one position to
another which is of equivalent rank, level and
salary, without break in service
o A transfer that results in promotion or demotion,
advancement or reduction cannot be done without
employee’s consent
o Unconsented transfer tantamount to illegal
removal
 o The availability of security of tenure is predicated
upon the premise that the officer is appointed to a
particular, not merely assigned station
o Where his appointment specified his
position and particular station, he may not
be reassigned without violating his right to
ST except for cause or with his consent
o Where he is not appointed to a particular station,
he can be transferred or assigned from one station
to another without violating the security of tenure
provision and without entitling him to retain
permanent in any station
o The law authorizes the re-assignment of
an employee from one organizational unit
to another in the same agency, provided
that such re-assignment shall not involve a
reduction in rank, status and salary
o It is a management prerogative vested in a
commission, department or agency
o Not a violation of the constitutional right to
security of tenure because the employee
retains his position under the same agency
and enjoys the same rank, status and
salary. Example: a director of the central
office of CSC may be re-assigned as a
director to a regional office of the CSC
o When reassignment to another office within the
department is without duration is tantamount to a
floating assignment and deprives the officer of
certain emoluments and allowances attached to
his former position and removes him the power of
supervision over a number of employees, such
reassignment amounts to demotion in rank and
status and is illegal
o CS Law allows transfer, detail ad reassignment
o Aggrieved employee may appeal to the
CSC
o GR: an official or employee of the government
may be ordered detailed or reassigned during the
3-month period before the any local or national
election
o Aggrieved party may appeal the order to
the CSC
o Notwithstanding the appeal, the decision
to detail or reassign him shall be executory
3. Detail
o A temporary detail is neither removal, suspension
or transfer when made in the interest of public
service and absent a showing of manifest abuse of
discretion
o While temporary assignment of personnel is
permissible even without the employee’s prior
consent, it cannot be done when the transfer is a
preliminary step towards his removal or designed
to indirectly terminate his service or force his
resignation
o A detail or reassignment that is indefinite and
results in a reduction in rank, status and salary, is,
in effect, constructive removal from the service
o Assigning an employee to a lower position in the
same service which has a lower rate compensation
is a clear case of demotion tantamount to removal
when no cause is shown for it
o CSC may order the reinstatement of government
employees who have been unlawfully dismissed
4. Shortening term is removal
o The term of office of a public officer or employee
of the civil service, who has been appointed in a
permanent capacity, is during good behavior or
until he reaches retirement age, and he cannot be
removed except for cause after due process
o A law or ordinance shortening the term of office of
such public officer or employee amounts to a plain
and simple removal without cause
5. Control does not extend to removal
o The power of control of the President merely
applies to the exercise of control over the acts of
the subordinate and not over the actor or agent
himself of the act… it does not extend to the
power to remove an officer or employee in the
executive department
o It may extend the power to investigate,
preventively suspend or after due hearing, to
suspend for a fixed period or remove presidential
appointees in the executive department… such
power can be justified under the principle that the
power to remove is inherent in the power to
appoint
6. Demotion
o Demotion is defined as the movement from one
position to another involving the issuance of an
appointment with diminution in duties,
responsibilities, status, rank, which may or may
not involve reduction in salary
o A diminution in any of those categories is
sufficient to constitute demotion and hence
tantamount to a virtual dismissal
o Demotion in office by assigning an employee to a
lower position in the same service which has a
lower rate of compensation, even if his original
salary is not changed is tantamount to removal,
and if effected without valid cause and due
process is illegal
o a public officer who has been promoted to a
higher position, may not be thereafter be returned
to his former position because the appointing
authority believe that there is another person
better qualified
7. Denial of optional retirement and refusal to reinstate
o Optional retirement under RA 1616 may be
allowed to any official or employee, appointive or
elective, regardless of age and employment
status, who has rendered at least 20 years of
service, the last 3 years of which are continuous
o If application for optional retirement is denied, the
official is entitled to reinstatement with
backwages
o Head of office may not refuse reinstatement on
the ground that the official has committed acts of
misconduct which merits his summary dismissal
because it violates the official’s right to due
process
o If head of office wishes to dismiss the
official on that ground, the latter should
first be allowed to return to his
position so that he may avail himself of
 the opportunity to refute the charges
imputed to him
Acceptance of temporary appointment or assignment, as
waiver of security of tenure
o GR: when an officer or employee permanently appointed
in a position accepts a temporary appointment in another
position without reservation or upon his own volition, he is
effectively divested of security of tenure
o Reason: he abandons his permanent position; temporary
appointment does not give the appointee any definite tenure
of office but makes it dependent upon the pleasure of the
appointing authority
o Exception: if appointee accepts the temporary appointment
with reservation of his right to his permanent position
Disciplinary actions by the Civil Service Commission
Disciplinary jurisdiction under the Civil Service Law
moral turpitude or disqualification to hold office, is
a prerequisite to hold office, is a prerequisite for
disciplinary action
o Misconduct in office means such as affects his
performance of his duties as an officer and not
such only affects his character as a private
individual
o Misconduct, misfeasance or malfeasance
warranting removal must have direct relation to
and be connected with the performance of official
duties amounting either to maladministration or
willful, intentional neglect and failure to discharge
the duties of the office
o Misconduct- wrong or improper conduct; it implies
a wrongful intention and not mere error of
judgment
o Grave misconduct as distinguished from simple
misconduct, the elements of corruption, clear
intent to violate the law or flagrant disregard of
established rule, must be manifest

o CSC has both original and appellate jurisdiction to hear

Statute regarding removal or suspension strictly construed
and decide administrative cases
o The law allows any private citizen to directly file with o Where the law enumerates the ground for disciplinary
the CSC administrative complaint against a non- action, no other grounds may be invoked for his suspension
presidential government official or employee or removal
o CSC may hear and decide the case or deputize any
department or agency or official to conduct the Specific grounds for removal or dismissal
investigation, the result of which shall be submitted to
CSC with recommendations as to the penalty to be Grave offenses
imposed
o CSC’s appellate jurisdiction: Dishonesty 1st offense Dismissal
o Appeals from decisions of other disciplining
authorities Gross neglect of duty 1st offense Dismissal
o Cases involving the penalties of suspension
for more than 30 days or fine in an amount
exceeding 30 days salary Gross misconduct 1st offense Dismissal
o Cases involving demotion in rank or salary or
transfer, removal or dismissal from office Being notoriously 1st offense Dismissal
undesirable
Grounds for discipline, generally Conviction of a crime 1st offense dismissal
involving moral turpitude
o Acts or omissions which may constitute grounds for
discipline: Falsification of official 1st offense dismissal
1. Malfeasance document
o Performance of some act which ought not to be
Physical or mental 1st offense dismissal
done
incapacity or disability
2. Misfeasance due to vicious habits
o Improper performance of some act ought not to
be done Engaging directly or 1st offense dismissal
3. Nonfeasance indirectly in partisan
political activities by one
o Omission of an act ought to be performed
holding non-political
office
Two general categories of the grounds for suspension or dismissal:
Receiving for personal 1st offense dismissal
1. Those related to the discharge of the functions of the office use of a fee, gift or
other valuable things in
concerned (such as neglect of duty, oppression, corruption
the course of official
or other forms of maladministration)
business… given by any
o Act or omission may be the object of admin person in the hope of
action, even if the same does not amount to receiving a favor (Anti-
crime, conviction by final judgment is not required Graft law)
2. Those not related or connected with the functions of the
office, such as commission of a crime
o Act or omission should amount to a crime and
conviction by final judgment of the crime involving
Contracting loans of 1st offense dismissal Owning, controlling, 1st offense Suspension for 6
money from persons with managing or accepting months and 1
whom the office has employement as officer, day;
business relations employee, consultant,
counsel, broker, agent,
trustee or nominee in
Soliciting or accepting 1st offense dismissal any private enterprise
directly or indirectly, any regulate, supervised or dismissal
2nd offense
gift, gratuity, favor, licensed by his office,
entertainment, loan or unless expressly allowed
anything of monetary by law
value … in the course of Engaging in the private 1st offense Suspension for 6
his official duty practice of his profession months and 1
Disloyalty to the RP and 1st offense dismissal unless allowed by the day;
to the Fil. people Consti, law or regulation
dismissal
Nepotism 1st offense Suspension for 6 2nd offense
months and 1 Disclosing or misusing 1st offense Suspension for 6
day; confidential or classified months and 1
information officially day;
known to him by reason
dismissal of his office and not
2nd offense
Oppression 1st offense Suspension for 6 made available to the
months and 1 public to further his
day; private interest dismissal
2nd offense
Obtaining or using any 1st offense Suspension for 6
dismissal statement filed under the months and 1
2 offense
nd
Code of Conduct and day;
Disgraceful and immoral 1st offense Suspension for 6 Ethical Standards for
conduct months and 1 Public officials and
day; employees for any
purpose contrary to
dismissal morals or public policy or dismissal
2nd offense 2nd offense
any commercial purposes
Inefficiency and 1st offense Suspension for 6
incompetence months and 1
day;
Less grave offenses

dismissal
2nd offense
Frequent unauthorized 1st offense Suspension for 6
absences or tardiness in months and 1 Simple neglect of duty 1st offense Suspension for 1
reporting for duty or day; month and 1 day
frequent unauthorized to 6 months
absences from duty
dismissal
during regular office 2nd offense
dismissal
hours 2nd offense
Refusal to perform 1st offense Suspension for 6 Simple misconduct 1st offense Suspension for 1
official duty months and 1 month and 1 day
day; to 6 months;

dismissal dismissal
2nd offense 2nd offense
Gross insubordination 1st offense Suspension for 6 Gross discourtesy in the 1st offense Suspension for 1
months and 1 course of official duty month and 1 day
day; to 6 months;

dismissal dismissal
2nd offense 2nd offense
Conduct grossly 1st offense Suspension for 6 Gross violation of existing 1st offense Suspension for 1
prejudicial to the best months and 1 civil service law and rules month and 1 day
interest of the service day; of serious nature to 6 months;

dismissal dismissal
2nd offense 2nd offense
Directly or indirectly 1st offense Suspension for 6 Insubordination 1st offense Suspension for 1
having financial and months and 1 month and 1 day
material interest in any day; to 6 months;
transaction requiring the
approval of his office dismissal
dismissal 2nd offense
2nd offense
Habitual drunkenness 1st offense Suspension for 1
month and 1 day
 to 6 months; 3rd offense 1-30 days

2nd offense dismissal Dismissal

Recommending any person 1st offense Suspension for 1 Borrowing money by 1st offense Reprimand
to any position in a private month and 1 day superior officers from
enterprise which has a to 6 months; subordinates
2nd offense Suspension for
regular or pending
1-30 days
transaction with his office,
unless such 3rd offense
recommendation is Dismissal
mandated by law or dismissal Lending money at usurious 1st offense Reprimand
2 nd
offense
international agreement rates of interest
Unfair discrimination in 1st Suspension for 1 2nd offense Suspension for
rendering public service offense month and 1 day 1-30 days
due party affiliation to 6 months;
3rd offense
2nd offense Dismissal
dismissal Willful failure to pay just 1st offense Reprimand
Failure to file sworn 1 offense
st
Suspension for 1 debts (just debts- apply only
statement of assets, month and 1 day to claims adjudicated by the
liabilities and net worth and to 6 months; 2nd offense Suspension for
court)
disclosure of business 1-30 days
interest and financial
connections including those 3rd offense
of the spouses and Dismissal
unmarried children under 18 Willful failure to pay taxes 1st offense Reprimand
dismissal due to the government
2nd offense
Failure to resign from his 1st offense Suspension for 1
position in the private month and 1 day
business within 30 days to 6 months;
from assumption of public 2nd offense Suspension for
office when conflict of 1-30 days
interest arises or failure to 3rd offense
divest himself of his Dismissal
shareholdings within 60 2nd offense Pursuit of private business, 1st offense Reprimand
days from assumption of vocation or profession
public office dismissal without the permission
2nd offense Suspension for
required by the CS rules and
1-30 days
regulations
Light offenses 3rd offense
Dismissal
Lobbying for personal 1st offense Reprimand
Discourtesy in the course of 1st offense Reprimand
interest or gain in legislative
official duties
halls and offices without
2nd offense Suspension for authority
1-30 days
2nd offense Suspension for
3rd offense
1-30 days
Dismissal
Improper or unauthorized 1st offense Reprimand 3rd offense
solicitation of contributions Dismissal
from subordinate employees Promoting the sales of ticket 1st offense Reprimand
2 nd
offense Suspension for
and by teachers or school in behalf of private
1-30 days
officials from school children enterprise that are not
2nd offense Suspension for
3rd offense intended for charitable or
1-30 days
Dismissal public welfare purposes
Violation of reasonable 1st offense Reprimand 3rd offense
office rules and regulations Dismissal
(includes dress code) Failure to act promptly on 1st offense Reprimand
2 nd
offense Suspension for
letters and requests 15 days
1-30 days
from receipt
2nd offense Suspension for
3rd offense
1-30 days
Dismissal
Gambling prohibited by law 1st offense Reprimand 3rd offense
Dismissal
Failure to process 1st offense Reprimand
2 nd
offense Suspension for
documents and complete
1-30 days
action on documents and
2nd offense Suspension for
3rd offense papers within a reasonable
1-30 days
Dismissal time from preparation
Refusal to render overtime 1st offense Reprimand thereof 3rd offense
service Dismissal
Failure to attend to anyone 1st offense Rep
2nd offense Suspension for
who wants to avail of
himself of the services of
the office or act 2nd offense rimand
expeditiously on public
transactions
3rd offense Suspension for
1-30 days
Dismissal
Rulings on ground for discipline
o habitually absent- if he incurs unauthorized absences
exceeding the allowable 2.5 days monthly leave credit under
the Leave law for at least 3 months in a semester or at least
3 consecutive months during the year
o habitually tardy – if he incurs tardiness, regardless of the
number of minutes, 10x a month for at least 2 months in a
semester or at least 2 consecutive months during the year in
case of claim of ill-health; heads of departments should
verify the validity of such claim
o cases of employees who absent themselves from work
before approval of the application should be disapproved
outright
o employees act of touching the leg of a co-employee is not
grave misconduct in the absence of proof that the
respondent was maliciously motivated
o illicit relation is disgraceful; an immoral conduct is a grave
offense (mitigating circumstances may make it less grave)
o dishonesty and grave misconduct are grave offenses
punishable by dismissal for the first offense
o dishonesty, in order to warrant dismissal, NEED NOT to be
committed in the course of the performance of duty by the
person charged dishonesty inevitable reflects on the
fitness of the officer or employee to continue in office and
the discipline and morale of the service
o accumulation of unexplained wealth shall be a ground for
dismissal (RA 3019)
o abandonment of post is a ground for summary dismissal
o inefficiency implies negligence, incompetence, ignorance and
carelessness
o nepotism means favoritism in the appointment I favor of a
relative within the third degree either of consanguinity or
affinity by the appointing authority
o an agency should notify in writing the employee who is
absent without leave for 30 days to report within 5 days
from the receipt of notice, otherwise he shall be dropped
from the rolls
o falsification of time record constitutes a grave offense which
warrants dismissal
Commencement of administrative proceedings
o admin proceedings are commenced by the filing of the
charges against the public officer or employee
o sec. 46(C) subtitle A, Title I, Book V of the 1987
Administrative Cod: “except when initiated by the disciplining
authority, no complaint against a civil service official or
employee shall be given due course unless the same is in
writing and subscribed and sworn to by the complainant
o disciplining authority (DA):
o secretaries
o heads of agencies and instrumentalities
o provinces, cities, municipalities
they shall have jurisdiction to investigate and decide matters
involving disciplinary action against officers and employees
under their jurisdiction; their decision is final in case the
penalty imposed is suspension for not more than 30 days or
fine in an amount not exceeding 30 days’ salary
o department secretary may not initiate the complaint toe be
investigated by a bureau or office under him, which may render
a decision that will be appealable to him in the exercise of his
appellate jurisdiction, for a secretary cannot be a litigant and a
judge at the same time
o procedure in an admin case against non-presidential appointee
1. commencement – by the Secretary, head of office, head of
local government, chiefs of agencies, regional directors, or
upon sworn written complaint of any other person
2. in case of complaint filed by any other person, complainant
has to submit sworn statements covering his testimony and
those of his witnesses together with his documentary
evidence
a. if prima facie case does not exist  dismiss the
case
b. if prima facie case exists DA shall notify the
respondent in writing, of the charges against the
latter, to which shall be attached copies of the
compliant, sworn statements and other
documents  respondent has to answer the
charges in writing under oath I not less than 72
hours after receipt of the complaint  if answer
is satisfactory DA shall dismiss the case
3. formal investigation
4. investigation shall be conducted not earlier than 5 days nor
later than 10 days from the date or the receipt of the
respondent’s answer by the DA decision shall be
rendered by the disciplining authority (DA) within 30 days
from the termination of the investigation
5. direct evidence for the complainant and the respondent
shall consist of the sworn statement and documents
submitted in support of the complaint or answer
6. either party may avail himself of the services of counsel
and may require the attendance of witnesses and
production of documentary evidence through the
compulsory process of subpoena or subpoena duces tecum
7. investigation shall be conducted only for the purpose and
ascertaining the truth and without adhering to technical
rules
Procedural due process
In administrative proceedings, due process has been recognized to
include the following:
1. right to actual or constructive notice of the institution of the
proceedings
2. real opportunity to be heard personally or with assistance of
counsel to present witnesses and evidence in one’s favor
and to defend one’s rights
3. a tribunal vested with competent jurisdiction
4. a finding of such tribunal which is supported by substantial
evidence submitted for consideration during the hearing or
contained
o in admin proceedings, due process simply means the
opportunity to explain one’s side or the opportunity to
explain one’s side or the opportunity to seek a
reconsideration of the action or ruling complained of
o a formal or trial type of hearing is not necessary so long as
the party is afforded fair and reasonable opportunity to
 explain his side, the requirement of due process is complied
with
o what can be considered really obnoxious is when there
clearly is lack of opportunity to be heard
o it has been held that the filing of a motion for
reconsideration cures the defect arising from denial of
procedural due process
Effect of complaint’s desistance or withdrawal of complaint
o complainant’s desistance and loss of interest in prosecuting
his administrative case does not bar the taking of disciplinary
action against the respondent
o neither does it warrant the dismissal of the administrative
case
o public interest and the need tom maintain the faith and
confidence of the people in the Government and its agencies
and instrumentalities demand that proceedings in admin
cases gainst public officers and employee should not be
made to depend on the whims and caprices of complainants
o Complainants are just witnesses, therefore, regardless of
their motions to dismiss or to withdraw the complaints, the
proceeding should still continue.
Effect of filing or dismissal of criminal complaint
o The pendency of a criminal case based on the same facts or
incidents which gave rise to an administrative case does not
suspend the admin proceedings
o The demands of public interest and public policy would not
be expeditiously served if admin cases should be made to
await the termination of the criminal or civil cases based
upon same facts or incidents
o Only substantial evidence is required
o Filing of a criminal complaint against a public officer does
not preclude the filing of an admin complaint and vice versa
o Dismissal of a criminal complaint for insufficiency of
evidence does not foreclose admin action based on the same
set of facts
o By insufficiency of evidence merely means that the
prosecution was unable to prove the guilt of the respondent
beyond reasonable doubt
o However, as a rule, it may be preferable to defer final action
in an admin case when there is a pending criminal case 
the purpose of this rule is not to preempt and influence the
trial court in judging the merits of the defenses put up by
the accused
o However, where the respondent admits as to make him
administratively liable, the admin case may be decided
ahead of the criminal action
Preventive suspension
o Preventive suspension – the proper disciplining authority
(DA) may preventively suspend any subordinate official or
employee under his authority pending an investigation, if the
charge against such officer or employee involves dishonesty,
oppression, or grave misconduct, or neglect in the
performance of duty, or if there are reasons to believe that
the respondent is guilty of charges which would warrant his
removal from service
o Lifting of Preventive Suspension Pending Admin
Investigation – when the admin case against the officer or
employee under preventive suspension is not finally decided
by the disciplining authority within the period of 90 days
form the date of suspension of the respondent … the
respondent shall be automatically reinstated in the service;
provided, that when the delay in the disposition of case is
due to the fault, negligence or petition of the respondent,
the period of delay shall not be counted in computing the
period of suspension herein provided
o Disciplining authority may preventively suspend a
subordinate under investigation even without designating
the replacement to give effect to the preventive suspension
o Preventive suspension is not a penalty by itself
o It is merely a measure of precautions so that the employee
who is charged may be separated form the scene of his
alleged misfeasance while the same is being investigated
o Preventive suspension is distinct from admin penalty of
suspension: the former may be imposed on the respondent
during the investigation of charges against him, the latter is
a penalty which may only be meted upon him at the
termination of the investigation or the final disposition of the
case
o Preventive suspension can be ordered even without a
hearing
o Purpose: to prevent the respondent from using his position
or office to influence prospective witnesses or tamper with
the records which may be vital in the prosecution of the case
against him
o Preventive suspension is limited to 90 days
o 90-day period may be lifted if the DA has not finally decided
the case
o 90-day period may be interrupted by the fault, negligence or
petition of the suspended employee, as by his securing a
restraining order or preliminary writ of injunction inhibiting
the proceedings or the preventive suspension, in which case
the period of interruption will be excluded in the reckoning
of the permissible period of preventive suspension
o 2 types of preventive suspension
1. Preventive suspension during investigation; limited to
90 days unless the delay in the conclusion of the
investigation is due to the employee concerned; after
such period, respondent must be reinstated; during
preventive suspension, employee is not entitled to
payment of salaries
2. Preventive suspension pending appeal; a penalty but
subsequently illegal if respondent is exonerated and
the admin decision finding him guilty is reversed… in
such a case, he should be reinstated with full pay for
the period of suspension; if conviction is affirmed, the
period of suspension becomes part of the penalty of
suspension or removal
Burden of proof and quantum of evidence
o Burden of proof is upon the complainant
o The complaint being administrative in nature, the quantum
of proof necessary for finding of guilt is only substantial
evidence
When admin case becomes moot
o The resignation of respondent officer and its acceptance
thereof render the admin case against him moot and
academic
Decision
 o Decisions which exonerate the respondent or impose upon o If he has attained compulsory retirement age, he shall be
him penalty of suspension for not more than 30 days or fine entitled to full back wages and full retirement benefits
in an amount not exceeding 30 day’s salary or reprimand are o When a government officer or employee has been illegally
final and unappealable suspended or dismissed, his position never became vacant
o Other decisions imposing higher penalties such as dismissal
form office, demotion in rank or salary, transfer, suspension Commission has power to issue writ of execution
of more than 30 days or fine in an amount exceeding 30
days salary are appealable initially to the dept. head and o The grant to the CSC adjudicatory power should normally
thereafter to the CSC and logically be deemed to include the grant of authority to
o In the imposition of the penalties, the ff. guidelines are enforce or execute the judgment it thus renders
considered:
1. Transfer or demotion in rank or salary from 2-3 grades Mandamus to compel reinstatement
or suspension fro 1 year in its minimum period
o Where the admin agency had ruled that an officer’s dismissal
2. Forced resignations without prejudice to reinstatement
was illegal and he should be reinstated with backwages,
to forced resignation with prejudice to reinstatement in
which had become final, notwithstanding which the
its medium period
appointing authority refused to comply therewith,
3. Dismissal
mandamus lies to compel his reinstatement and backsalaries
The following are considered mitigating circ:
Pardon does not restore officer to his position
1. Physical illness
2. Good faith
o Absolute pardon does not ipso facto restore a convicted
3. Analogous circumstances
felon to public office necessarily relinquished by reason of
o Any mitigating/aggravating circumstances must be invoked
the conviction
by the proper party otherwise the said circumstances shall
o Reason: public offices are intended primarily for the
not be considered
collective protection, safety and benefit of the common good
o Where a public officer commits many offenses at different
o Pardon does not entitle him to automatic reinstatement, he
times, good faith cannot be appreciated in his favor as the
should apply for reinstatement to said office
repeated violations negate it
o When reappointed, pardon does not entitle him to
o Penalty of dismissal shall carry with it that of cancellation of
backwages nor make his service continuous from the time
eligibility, forfeiture of leave credits and retirement benefits
he was removed, as he was lawfully separated from the
and the disqualification for reemployment in the government
service after conviction
service
o However, the president has the power to grant executive
clemency in admin cases; he may commute or remove
Appeals
admin cases
o Appeals shall be made by parties adversely affected
Petition for review
o Reason: complainant in an admin case is only a witness as
the offense is committed against the government
o Aggrieved public officer may appeal CSC’s decision by either
o But when a complainant appeals and the respondent failed
filing a motion for reconsideration or a petition for review
to question the complainant’s right to appeal, the inaction of
with the Court of Appeals within 15 days from the receipt
the respondent may amount to a waiver to question the
thereof
authority of CSC to review the decision
o Only one motion for reconsideration is allowed
o Failure to timely invoke a rule of procedure in favor of a
o Petition for review must comply with the requirements
party constitutes a waiver thereof
prescribed in Rule 43
o Aggrieved party has only 15 days from the receipt of the
o If the CA reverses the decision of CSC, the latter becomes
decision within which to appeal
the aggrieved party, entitled to the question the decision of
o The aggrieved party who has the right to appeal is the
CA before the SC
government officer or employee against whom the admin
o The extant jurisprudence that the phrase “party adversely
case is filed
affected by the decision” refers to the government employee
o Right to appeal is only a statutory right
or officer against whom the admin case was filed has been
o There is no appeal in two instances:
expressly abandoned
1. Where the penalty imposed against the erring official or
employee is suspension of 30 days or less, fine of one
month’s salary or less, reprimand
2. Where the decision is one of exoneration Disciplinary Action by the Ombudsman

CSCCA (under Rule 43) SC
Reliefs granted to illegally suspended or dismissed employee
o Public officer who has been unlawfully suspended or
dismissed is entitled to reinstatement and full backwages
o If reinstatement is no longer feasible because of change of
circumstance, he will be entitled to backwages equivalent to
not more than 5 years without qualification or deduction
o Office of the Ombudsman has disciplinary authority over all
elective officials of the Government, including members of
the Cabinet, local government, GOCCs and its subsidiaries
o Exception: officials who may be removed only by
impeachment, members of Congress and of the
Judiciary
o However, the Office of the Ombudsman has the power to
investigate any serious misconduct in office committed by
officials removable by impeachment
 o It has the power to investigate the President, VP, Chief
Justice and associates of the SC and the Chairman and
members of Constitutional Commission for culpable violation
of the Consti, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust, for the purpose of
filing a verified complaint for impeachment, with the House
of Reps.
Procedure in admin cases
Grounds for admin complaint are enumerated in Rule III of the
Ombudsman’s Rule of Procedure:
a) contrary to law or regulations;
b) unreasonable, unfair, oppressive or discriminatory;
c) inconsistent with the general course of an agency’s
functions though in
Disciplinary Action by Congress Over its members
accordance with law;
d) based on a mistake of law or an arbitrary ascertainment
of facts;
e) in the exercise of discretionary powers but for an
improper purpose;
f) otherwise irregular, immoral or devoid of justification;
g) due to any delay or refusal to comply with the referral or
directive of the Ombudsman or any of his deputies against
the officer or employee to whom it was addressed; and
h) such other grounds provided for under PD807 (CS Law),
RA 6713(Code of Conduct and Ethical Standards for Public
Offices) and other applicable laws.
How initiated. – An administrative case may be initiated by a written
complaint under oath accompanied by affidavits of witnesses and other
evidence in support of the charge. Such complaint shall be
accompanied by a Certificate of NonForum Shopping duly subscribed
and sworn to by the complainant or his counsel. An administrative
proceeding may also be ordered by the Ombudsman or the respective
Deputy Ombudsman on his initiative or on the basis of a complaint
originally filed as a criminal action or a grievance complaint or request
for assistance.
Power of the Ombudsman to preventively suspend
o Ombudsman or his deputy may preventively suspend any
officer or employee, whether elective or appointive. To
justify preventive suspension, the following circumstances
must be present:
1. The charge against such officer or employee involves
dishonesty, oppression or grave misconduct or neglect
in the performance of duty
2. Evidence of guilt is strong (whether the evidence of
guilt is strong is left to the determination of the
Ombudsman by taking into account the evidence before
him)
3. Charges would warrant removal form the service
4. Respondent’s continued stay in the office may prejudice
the case filed against him
o Preventive suspension shall continue until the case is
terminated but not more than 6 months, without pay, except
when the delay in the disposition of the case by the Office of
the Ombudsman is due to the fault, negligence or petition of
the respondent, in which case the period of such delay shall
not be counted in computing the period of suspension
o Prior notice is not required before suspension may be meted
out
Penalties
o Suspension without pay for one year to dismissal with
forfeiture of benefits or a fine ranging P5,000 to twice
the amount malversed, illegally taken, or lost, or both
at the discretion of the Ombudsman
o Decision shall become final after the expiration of 10
days from the receipt thereof of the respondent unless
MR or petition for review is filed with the CA
o Section 16(3) of Art.VI of the Consti
o Each house… may punish its members for
disorderly behavior, and with the concurrence
of 2/3 of all its members, suspend or expel a
member. A penalty of suspension when imposed,
shall not exceed 60 days
o Complaint for discipline against a member of the
House is usually referred to the ethics committee
which investigates the complaint, and if
warranted, recommends to the House punishment
of the erring member
o Ethics committee determines what “disorderly
behavior” embraces or consists of
o Decision of the house may not be reviewed by the
SC, except where there is showing of a clear
disregard of a specific constitutional precept
o While a legislator will not be held criminally and
civilly liable for his libelous privilege speech in
Congress, he may not be protected from
responsibility before the legislature itself whenever
his words and conduct are considered by the latter
as disorderly or unbecoming of a member thereof
o Suspension of a member is different from
preventive suspension; it is a penalty for a
member’s disorderly behavior
o The Consti does not exempt members of Congress
from being expelled therefrom for conviction of a
crime which carries a disqualification from holding
public position
Disciplinary Power of the Office of the President
President’s disciplinary power over appointive
officials
Control means "the power of an officer to alter or modify or
nullify, or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment
of the former for that of the latter." The President can, by
virtue of his power of control, review, modify, alter or nullify
any action, or decision of his subordinate in the executive
departments, bureaus or offices under him. He can exercise
 this power motu propriowithout need of any appeal from any
party.
President’s disciplinary power over elective local officials
o His power emanates from: (1)his general power of
supervision over local governments (2) pertinent provisions
of the LGC of 1991
o Power of the President of supervision over local
governments means overseeing or the power or authority to
see that local officials perform their duties ; this includes
power of investigation
o SEC. 60. Grounds for Disciplinary Actions. - An elective local
official may be disciplined, suspended, or removed from
office on any of the following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross
negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or
an offense punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive
working days, except in the case of members of the
sangguniang panlalawigan, sangguniang panlungsod,
sangguniang bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or
residence or the status of an immigrant of another country;
and
(h) Such other grounds as may be provided in this Code
and other laws.
An elective local official may be removed from office on the
grounds enumerated above by order of the proper court.
Law on removal or suspension strictly construed
Administrative offense defined
Admin offense- means every act or conduct or omission which
amounts to, or constitutes, any of these grounds fro disciplinary action
enumerated in the LGC
(Pages 471 – 538)
Disciplining Authority; Procedure
The Local Government Code provides:
 Complaint against any elective official of a
o province, a highly urbanized city, an
independent component city or component city –
file before the Office of the President
o municipality – file before the Sangguniang
Panlalawigan; appeal to the Office of the President
o barangay official – file before the Sangguniang
Panglungsod or Sangguniang Bayan concerned;
decision shall be final and executory
 GUYS BETTER READ THE BOOK (pp. 471 – 474) AS IT PROVIDED
SEC. 61 – 68 OF THE LGC WHICH IS PURELY PROCEDURAL.
CAN’T BE SUMMARIZED W/O LEAVING OUT IMPORTANT
DETAILS SO READ IT NA LANG JUD.
Preventive Suspension
 The Provincial Governor has the power to preventively suspend a
municipal mayor in an administrative case filed against him on
the following grounds:
o There is reasonable ground to believe that the
respondent has committed the act/s complained of;
o The evidence of culpability is strong;
o The gravity of the offense so warrants; or
o The continuance in office of the respondent would
influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence.
 Preventive suspension is allowed so that the respondent may not
hamper the normal course of the investigation through the use of
his influence and authority over possible witnesses.
 Where a local elective official believes that his preventive
suspension is unjustified, he should, as a general rule, exhaust
administrative remedies first before recourse to courts is taken.
Decision on Disciplinary Actions
 Sec. 66, LGC
 In order to render a decision in administrative cases involving
elective local officials, the decision of the Sanggunian must be in
“writing stating clearly and distinctly the fact and the reasons for
such decision”.
 The voting following the deliberation of the members of the
Sanggunian did not necessarily constitute their decision unless
this was embodied in an opinion prepared by one of them and
concurred in by the others.
 A “decision” signed only by one of the members of the
Sanggunian is not a valid decision.
Penalty of Suspension Not To Exceed 6 Months
 Sec. 66, LGC
 This provision sets the limits to the penalty of suspension – that it
should not exceed 6 months for every administrative offense.
Effects of Election or Re-election On Administrative
Misconduct
 Administrative offenses committed or acts done during the
previous term are generally held not to furnish cause for removal
and this is especially true where the constitution provides that the
penalty in proceedings for removal shall not extend beyond the
removal from office.
 When the people have elected a man into office, it must be
assumed that they did this with knowledge of his life and
character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any.
 Any pending administrative disciplinary proceeding against a
respondent is abated if in the meanwhile he is elected or
reelected, because his election results in a condonation of
whatever misconduct he might have committed during his
previous term.
 If a public official is not removed before his term expires, he can
no longer be removed if he is thereafter reelected for another
term.
 This refers only to an action for removal from office and does not
apply to a criminal case because a crime is a public wrong more
atrocious in character than mere misfeasance or malfeasance
committed by a public officer in the discharge of his duties.
 His election cannot erase his criminal liability, nor can it be a
ground to restrain the prosecution of the crime against him.
H. DISCIPLINARY AUTHORITY OF THE SUPREME COURT
Generally
 Sec. 6, Art. VII, 1987 Constitution
 By the power vested in the Supreme Court, it can act on
administrative complaint which need not be under oath.
 It also entertains anonymous complaints where the charge can be
fully borne out by the evidence offered.
 What is given paramount importance by the Court in instances
when its power of administrative supervision over court
employees in invoked, is the substantiation of the complaint
rather than its conformity with formal requirements.
 When the Supreme Court acts on complaints against judges or
any of the personnel under its supervision and control, it acts as
personnel administrator, imposing discipline and not as a court
judging justiciable controversies.
 Substantial evidence is sufficient to sustain conviction.
 The distinction between administrative and criminal proceedings
must be upheld, and a prosecution in one is not a bar to the
others. To rule otherwise is to drastically curtail the disciplinary
authority of the Supreme Court over judges and court personnel.
Administrative Charges, Generally
 The acts or omissions which may constitute grounds for discipline
may either be:
o Malfeasance – the performance of some act which
ought not to be done
o Misfeasance – the improper performance of some act
which might lawfully be done
o Nonfeasance – the omission of an act which ought to
be performed
 2 General Categories for the Grounds of Suspension or Dismissal
o Those related to the discharge of the functions
of the office concerned – this may be the object of
administrative action even if the same does not amount
to a crime, or even if it amounts to a crime, conviction
by final judgment is not required.
o Those not related to, or connected with, the functions
of the office – the GR is that the act or omission should
amount to a crime and conviction by final judgment of
the crime involving moral turpitude or disqualification to
hold office, is a prerequisite for disciplinary action.
 Where the crime committed is not essentially connected with the
performance of the official duties, the officer may not be
proceeded administratively based thereon until after a final
judgment of conviction shall be rendered by the court of justice
except when the crime or act committed also constitutes violation
of the Code of Judicial Conduct.
 
Classification of Charges in Serious, Less Serious, and Light
Charges
 Sec. 8, 9, 10, Rule 140, Rules of Court
 Serious charges
o Bribery, direct or indirect
o Violations of RA 3019
o Gross misconduct
o Rendering unjust judgment
o Conviction of a crime involving moral turpitude
o Failure to pay a just debt
o Borrowing money or property from lawyers and litigants
in a case pending before the court
o Immorality
o Gross ignorance of the law
o Partisan political activities
o Alcoholism/vicious habits
 Less serious charges
o Undue delay in rendering a decision
o Frequent and unjustified absences
o Unauthorized practice of law
o Violation of SC rules
o Receiving additional compensation
o Untruthful statement in the certificate of service
o Simple misconduct
 Light charges
o Vulgar/unbecoming conduct
o Gambling in public
o Fraternizing with lawyers/litigants with pending cases in
his court
o Undue delay in submission of month reports
 The lists of acts under these classifications are not exclusive.
Other acts analogous thereto and conviction in a criminal
prosecution may also be grounds for discipline.
How Proceedings Are Instituted
 Proceedings for the discipline of judges of regular and special
courts and Justices of the CA and the Sandiganbayan may be
instituted motu propio by the SC or upon a verified complaint
supported by affidavits of persons who have personal knowledge
of the facts alleged therein or by documents which may
substantiate said allegations, or upon an anonymous complaint,
supported by public records of indubitable integrity.
 The complaint shall be in writing and shall state clearly and
concisely the acts and omissions constituting violations of
standards of conduct prescribed for Judges by law, the Rules of
Court, or the Code of Judicial Conduct.
 The SC does not, as a rule, entertain anonymous complaints
against judges, except in cases in which the charges could be
fully borne by public records of indubitable integrity.
Action on the Complaint
 If the complaint is sufficient in form and substance, a copy shall
be served upon the respondent and he shall be required to
comment within 10 days from the date of service otherwise, the
same shall be dismissed.
By Whom Complaint Investigated
 Upon the filing of the respondent’s comment or upon the
expiration of the time for filing the same, the Court shall refer the
matter to the Office of the Court Administrator for evaluation,
report and recommendation or assign the case for investigation,
report, and recommendation to a retired member of the SC if the
situation so permits.
Hearing
 The investigating Justice/Judge shall set a day for the hearing
and send notice thereof to both parties. At such hearing, the
parties may present oral and documentary evidence.
If after due notice, the respondent fails to appear, the
investigation shall proceed ex parte.
 The withdrawal of the complaint by the complainant does not
divest the SC of the authority to order the investigation nor does
it preclude such investigation nor result in its dismissal.
 The abolition of a respondent judge’s position does not
necessarily render the administrative case for acts committed
during his incumbency moot and academic, nor preclude his
being held liable in his present judicial position, where the
charges are so serious that affect his competency and integrity as
a judge.
 The resignation/retirement of a judge who is a respondent in an
administrative case does not necessarily render the case moot nor
deprive the SC of the authority either to pronounce the
respondent innocent of the charges or declare him guilty thereof.
 As a rule, the death of a respondent judge may render the
administrative complaint against him moot and academic.
 The investigating Justice/Judge shall terminate the investigation
within 90 days from the date of its commencement or within such
extension as the SC may grant.
Report and Recommendation
 The investigating Justice/Judge shall submit to the SC a report
containing findings of fact and recommendation within 30 days
from the termination of the investigation.
 The report shall be confidential and for the exclusive use of the
Court.
Decision; Sanction
 Refer to p. 483 for enumeration of penalties
 The penalties range from a minimum to a maximum sanction for
each classification of charges, depending upon the existence of
aggravating or mitigating circumstances.
Confidentiality of Proceedings
 Proceedings against Judges of regular and special courts and
Justices of the CA and the Sandiganbayan shall be private and
confidential.
 3-Fold Purpose
o To enable the SC to make its investigation free from
any extraneous influence/interference
o To protect the personal and professional reputation of
the Justices and Judges from baseless charges
o To deter the press from publishing the charges or
proceedings based thereon
 The proceeding ceases to be confidential and the decision
becomes a public document after the SC have rendered it and
attached to the record of the respondent in the Office of Court
Administration.
Reinstatement of Judge Previously Dismissed
 Reinstatement is essentially an act of appointment of a judge,
which may only be extended by the President of the Philippines,
as the appointing authority.
 A judge who has been previously dismissed from the service for
manifestly erroneous decision in a criminal case through gross
incompetence and gross ignorance of the law may be reinstated
where there is no clear indication that he was inspired by corrupt
motives or a reprehensible purpose to set the plainly guilty free
I. BACKWAGES
When Reinstatement With Backwages Allowed
 The GR is that a public officer or employee who has been
dismissed or suspended from service and who is later found to be
innocent of the charges is entitled to reinstatement with full
backwages.
 If the illegal dismissal is found to have been made in bad faith or
due to personal malice of the superior officers, they will be held
personally accountable for the employee’s backwages otherwise it
will be the government which should pay.
 This applied with equal force to a temporary appointee because
what is material is not the nature of the appointment but the act
of wrongful deprivation of office.
 Where a government officer/employee has been illegally
suspended or dismissed, his position never became vacant hence
there is no vacancy to which the new incumbent can be
permanently appointed and that latter has to give way to the
illegally dismissed officer whose reinstatement has been ordered
by competent authorities.
 (Caniete vs. Sec. of Educ) Although employees who are pre-
emptively suspended pending investigation are not entitled to the
payment of their salaries even if they are exonerated, we do not
agree with the government that they are not entitled to
compensation for the period of their suspension pending appeal if
eventually they are found innocent.
 2 Kinds of Preventive Suspension (for civil service employees
charged with offenses punishable by removal or suspension):
o Preventive suspension pending investigation, which is
without salary
o Preventive suspension pending appeal if the penalty
imposed by the disciplining authority is suspension or
dismissal and after review, the respondent is
exonerated or merely reprimanded (employee is
entitled to backwages pending appeal)
 The period of preventive suspension pending investigation is
usually 90 days or 3 months after which the employee/officer
preventively suspended is automatically reinstated.
 (Gloria vs. CA) It was held that an employee who is placed under
preventive suspension pending investigation is not entitled to
compensation because suspension is not a penalty but a means
of enabling the disciplining authority to conduct an unhampered
investigation.
 (Sec. of Educ. Vs. CA) An officer/employee, although entitled to
reinstatement, is not entitled to back salary during the period of
his suspension pending appeal except only when is completely
exonerated or merely reprimanded.
Acquittal Entitles Payment of Backwages; Remedy Therefor
 A government employee who has been acquitted of the crime
charged against him is entitled to the salary during the period of
his suspension from office.
 His remedy for payment of his salary lies in the proper
administrative or civil action prescribed by law such as a petition
for mandamus to enforce the right of backwages.
 A dismissal not on the merit is not acquittal, and the suspended
officer is not entitled to payment of backwages.
Officers Reorganized Entitled to Reinstatement and
Backwages
 Government employees who are removed from office by virtue of
a reorganization made in bad faith are entitled to reinstatement
with backwages.
Where Penalty Is Reduced or Appeal Is Won
 There can be no question that if the officer or employee is
completely exonerated on appeal, he will be entitled to full
backwages.
 (Avellana vs. Baquio, 1967) To deny someone who is not
completely exonerated and the penalty is merely reduced, his
backwages will mean extending the penalty of suspension without
pay longer than what he has been penalized.
 (Garcia vs. City of Baguio, 1970) It was held that the
officer/employee would not be entitled to backwages because the
reduction of penalty implied that the suspension w/o pay pending
appeal would be a penalty in addition to the reduced one.
 (Gloria vs. CA, 1999) The Court ruled that where the appellate
court has exonerated the officer/employee or merely imposed a
penalty of reprimand, the officer/employee is entitled to full back
salaries during the period of suspension pending appeal but
where the penalty is more than reprimand but a reduced period
of suspension, he is not entitled to back salary. Ruling reiterated
in Caniete vs. Sec. of Educ., 2000
 (Sec. of Educ. vs. CA, 2000) Ruled that where the penalty has
been reduced from dismissal to suspension of 6 months, the
officer/employee is not entitled to back salary during suspension
pending appeal as he has not been exonerated.
Amount of Backwages
 If as a result of the illegal dismissal he has been out of work for
more than 5 years, he may be entitled to 5 years backwages
without qualifications or deductions.
 The amount of backwages should not exceed the maximum of 5
years of backwages w/o deductions.
Executive Clemency Does Not Carry Backwages
 A dismissed officer who has been granted executive clemency
and who has been re-employed is not entitled to backwages.
Backwages Are Money Claims That May Be Filed With COA
 The ordinary courts generally have no jurisdiction to entertain the
claim as it should be filed with the Commission on Audit.
Prescriptive Period to Claim Backwages
 The prescriptive period is 1 year, the period within which a
petition for quo warranto and mandamus may be filed.
Municipal Corporation Liable for Backwages
 A municipal corporation may be held liable for the backwages of
employees illegally separated from the service.
 The mayor and the local government may be solidarily liable for
backwages if they acted in bad faith in illegally dismissing a public
officer.
Is Preventive Suspension Without Pay Constitutional?
 The preventive suspension without pay during the investigation
may be reconciled with the constitutional provision on security of
tenure only by holding that the officer/employee shall be entitled
to full back salaries during the period of preventive suspension
when he is exonerated of the charges or when the penalty
imposed is only a reprimand.
Chapter VII
OTHER MODES OF TERMINATION OF OFFICIAL RELATIONS
A. REORGANIZATION OR ABOLITION
Reorganization or Abolition of Offices
 Reorganization is the process of reconstruction the bureaucracy’s
organizational and functional set-up, to make it more viable in
terms of the economy, efficiency, effectiveness and make it more
responsive to the needs of its public clientele as authorized by
law.
 It takes places when there is an alteration of the existing
structure of the government officers or units therein.
 When there is valid reorganization, the abolition of position does
not involve or mean removal for the reason that removal implies
that the post subsists and that one is merely separated
therefrom.
 After the abolition, there is in law no occupant.
 In removal, there is an office with an occupant who would
thereby lose his position.
 The power to establish an office includes the authority to abolish
it unless there are constitutional or statutory rules expressly or
impliedly providing otherwise.
 The abolition of an office neither means the removal nor
separation therefrom of the occupant who is not accordingly
covered by the protection of the security of tenure clause of the
Constitution.
Limitations on Power to Reorganize or Abolish Offices
 The power to abolish public offices vested in the legislature is not
absolute thus it must be:
o Exercised in good faith
o Should never be for personal or political reasons
o Cannot be implemented in a manner contrary to law
 The question as to whether a reorganization or abolition of office
is to be adjudged valid or invalid depends upon the manner in
which it is implemented and the way the power is wielded by
those to whom the authority is delegated.
When Reorganization Is In Bad Faith
 Where the reorganization is not intended for purposes in good
faith but is simply used as a tool of the spoils system to change
the face of the bureaucracy, it is invalid.
 Reorganization is in bad faith where the abolished office and the
offices created in its place have similar functions; where it merely
changes the nomenclature of positions; where it abolishes one
position and creates additional management positions in place of
the abolished one; or where there is no staffing pattern, as basis
for hiring and firing officers and employees.
Remedy of Reorganized Out Officer
 First appeal to the appointing authority and from an adverse
decision of such, appeal to the Civil Service Commission, within
15 days from receipt of the adverse ruling.
 Decisions of the Civil Service Commission may be brought to the
CA by petition for review within 15 days from receipt of the
appealed decision.
Estoppel
 An employee who has been phased by reason of reorganization of
the office and who, upon his request, was appointed to a lower
position and accepted it without reservation, is stopped from
claiming his original position after the reorganization has been
declared invalid.
Reorganization in Bad Faith Entitles Officer to Reinstatement
and Backwages
 The separation of an employee, which resulted from a proscribed
abolition of his office, is illegal, and the officer/employee is
entitled to reinstatement with full backwages from the date of his
separation.
 He is entitled to all the rights and privileges that accrue to him by
virtue of the office he held.
 The declaration by the court that the organization of an office
resulting in the separation of officers and employees therefrom is
null and void entitles the latter and those similarly situated who
were not parties in the case to reinstatement and backwages not
exceeding 5 years.
B. OTHER MODES OF TERMINATION
Termination of Tenure of Members of Congress
 Term of office
o Senator: 6 years
o House of Representatives: 3 years
 Their term begins at noon on the 30th of June next following their
election.
 Term may not be extended or cut short but tenure may be cut
short according to the Constitution:
o Forfeiture of his seat by holding any other office in the
government
o Voluntary renunciation of office
o Expulsion as disciplinary action for disorderly behaviour
o Disqualification as determined by resolution of the
Electoral Tribunal in an election contest
Automatic Resignation Upon Filing Certificate of Candidacy
 It has been held that the resignation from, or forfeiture of, an
office which a public officer holds is automatic and permanently
effective upon the filing of his certificate of candidacy for an
elective position.
 Only the moment and act of filing are considered.
 The withdrawal of the certificate of candidacy, with the approval
of the Commission of Elections, will not work to reinstate him to
his former position.
Recall as Mode of Removal of Elective Local Officer
 Recall is a mode of removal of a public office by the people
before the end of his term of office.
 The people’s prerogative to remove a public officer is an incident
of their sovereign power and such power has been held to be
indispensable for the proper administration of public affairs.
 It is described as a fundamental right of the people in a
representative democracy.
 Refer to Sec. 69 – 75 of the Local Government Code for the
procedure
 2 ways to initiate recall
o By preparatory recall assembly in every province, city,
district and municipality by adopting a resolution by a
majority of all the members during session called for
hte purpose
o By petition of at least 25% of the total number of
registered voters in the local government unit
concerned during the election in which the local official
sought to be recalled was elected
 The COMELEC shall then set the election on recall, which shall not
be later than 30 days after the filing of the resolution or petition
for recall in case of barangay, city, or municipal officials, and 45
days in the case of provincial officials.
 2 limitations on the recall itself
o That no recall shall take place within 1 year from the
date of assumption of office of the official concerned
o That no recall shall take place within 1 year
immediately preceding a regular local election
 These limitations do not apply to the preliminary proceedings.
Incompatibility of Offices
 Acceptance of a later position which is incompatible with the
earlier one operates to vacate the latter.
 The incompatibility is not the mere physical impossibility of one
person’s performing the duties of the two offices at the same
moment, but that which proceeds from the nature and relations
of the 2 positions to each other.
 Incompatibility of 2 or more offices may be created by the
Constitution by law.
 An elective local official may not hold another elective or
appointive position simultaneously, without vacating the earlier
one in favor of the latter, except as the Constitution or the law
may permit.
Resignation
 Resignation is the act of giving up or the act of an officer by
which he declines his office and renounces the further right to
use it.
 To constitute a complete and operative act of resignation, the
officer or employee must show a clear intention to relinquish or
surrender his position accompanied by the act of relinquishment.
 A resignation which is made subject to the result of a case is not
a resignation, and its acceptance did not preclude the officer from
being reinstated in his position as ordered in said case.
 Acceptance is necessary for resignation of a public officer to be
operative and effective.
 Until such acceptance is communicated to the officer, all his acts
prior thereto are valid.
Impeachment
 Refer to Art. XI, 1987 Constitution
 Impeachment is a criminal proceeding against a public officer,
before a quasi-judicial political court, instituted by written
accusation called “articles of impeachment”.
 It is not a criminal prosecution but it is penal in nature.
 Grounds:
o Culpable violation of the Constitution
o Treason
o Bribery
o Graft and corruption
o Other high crimes
o Betrayal of public trust
 The acts which are impeachable grounds must be committed in
the performance of the official’s public office.
 The constitutional provision that impeachable officials may be
removed from office only on impeachment on, and conviction of,
an impeachable offense prohibits the filing and prosecution of
disbarment complaints against such officials whose membership
in the bar is an indispensable qualification.
 The Constitution provides that “No impeachment proceedings
shall be initiated against the same official more than once within
a period of one year.”
Abandonment of Office
 Abandonment of an office is the voluntary relinquishment of an
office by the holder with the intention of terminating his
possession and control thereof.
 It must be total and under such circumstance as clearly to
indicate an absolute relinquishment.
 2 elements of abandonment:
o An intention to abandon
o An overt or external act by which the intention is
carried into effect
 Non-performance of the duties of an office does not constitute
abandonment where such non-performance results from
temporary disability or from involuntary failure to perform.
 Abandonment may also result from acquiescence by the officer in
his wrongful removal or discharge.
 Unauthorized and unexplained absence without leave constitutes
abandonment of office and operates to terminate official
relations.
 Acceptance of a designation in another office in an acting
capacity does not amount to abandonment of his permanent
position.
 Where a public officer has been removed from office and he
accepted a new position in another branch of the government
during the pendency of his appeal from decision removing him
from office, he may not be said to have abandoned his old
position and be precluded from being reinstated in case his
appeal is resolved in his favor.
Expiration of Term
 The expiration of a term of office automatically terminates the
services of a public officer except as otherwise provided by law.
 Where a public officer is placed on hold-over status, it means that
his term has expired or his services have terminated but that he
should continue to hold his office until his successor is appointed
or chosen and has qualified.
 An appointment which has a definite period and is renewable for
a definite period expires when it is not renewed.
 The GR is that where the Constitution or the law fixes both the
duration of the term of office and the time of its commencement,
a person elected or appointed to fill a vacancy in such office holds
it for the unexpired portion of the term.
 If he is appointed to a full term even where what is left of the
term is only an unexpired portion thereof, his continuing to serve
until his term is judicially terminated does not render his acts
done beyond the unexpired term invalid nor make the salaries
paid him illegal as he is deemed a de facto officer.
 Where a person holds his position at the pleasure of a superior or
subject to some supervening event, his separation from office is
not removal.
CHAPTER VIII
CIVIL AND CRIMINAL LIABILITIES
A. CIVIL LIABILITY
Generally
 An officer who acts within his authority to administer the affairs
of the office which he heads is not liable for damages that may
have been caused to another, as it would virtually be a charge
against the Republic, which is not amenable to judgment for
monetary claims without its consent.
 A public officer, whether judicial, quasi-judicial, or executive, is
not personally liable to one injured in consequence of an act
performed within the scope of his official authority and in the line
of his official duty.
 Mistakes concededly committed by public officers are not
actionable absent any clear showing that they were motivated by
malice or gross negligence amounting to bad faith. Their acts are
protected by the presumption of good faith.
 If there has been a violation by an officer or employee of his duty
or there has been a wrongful act or omission on his part,
responsibility arises and he may be held civilly, criminally, and
administratively liable.
 The dismissal of an administrative case does not necessarily bar
the filing of a criminal prosecution for the same or similar acts,
which were the subject of the administrative complaint.
Statutory Basis of Liability
 Under the Administrative Code
o Sec. 38 & 39, Book 1, 1987 Admin Code
o As a GR, a quasi-judicial officer empowered to exercise
discretion or judgment is not personally liable for
resulting injuries when acting within the scope of his
authority, and in the line of his official duty.
o He may be held liable only where it is shown that he
acted wilfully and maliciously, and with the express
purpose of inflicting injury upon the plaintiff.
 Under Art. 27 of the Civil Code
o Malicious inaction on the part of a public officer to
perform what is required of him may be a ground for
damages under this article.
o The provision presupposes that the refusal or omission
of a public official to perform his official duty is
attributable to malice or inexcusable negligence.
o The erring public functionary is justly punishable under
the article for whatever loss or damage the complainant
has sustained.
 Under Art. 32 of the Civil Code
o This article render a public officer or employee civilly
liable for damages for directly or indirectly obstructing,
defeating, violating or in any manner impeding or
impairing civil liberties guaranteed by the Constitution.
o Under this article, it is not necessary that the public
officer acted with malice or bad faith.
o To be liable, it is enough that there was a violation of
the constitutional rights of the aggrieved party, even on
the pretext of justifiable motives or good faith in the
performance of one’s duties.
o Good faith is not a defense.
Liabilities Arising from Ultra Vires Acts
 Contracts which are ultra vires or which have been executed
without authority on the part of the officer concerned or which
did not comply with mandatory requirements of law are not
binding upon the government, and the officers concerned are
personally liable therefor.
Liability for Refusal to Reinstate Dismissed Employee
 Where a responsible officer obstinately refused to reinstate a
dismissed officer who has been order reinstated, in defiance in
bad faith of the orders of the administrative agencies concerned
and of the court to do so, the responsible officer may be held
personally liable for damages.
 The rule is that the government, whether national, provincial, or
municipal, shall be liable for the acts of its officers or agents only
when such officers or agents had acted strictly within the scope
of their authority as created, conferred, and defined by law.
Immunity of State from Suit, As Defense of Public Official
 The principle is based on the very essence of sovereignty, and on
the practical ground that there can be no legal right as against
the authority that makes the law on which the right depends.
 A public officer who is sued in connection with the performance of
his duties may properly invoke this doctrine when the suit is on its
face against a government officer but the case is such that
ultimate liability will belong not to the officer but to the
government.
 The rule is that if judgment against such official will require the
state itself to perform an affirmative act to satisfy the same, the
suit must be regarded as against the state itself although it has
not been formally impleaded.
 This doctrine does not apply where the officer has exceeded his
authority.
Liability for Wrongful Disbursement of Funds
 The law requires that no funds shall be disbursed without first
securing the certification of the corresponding chief accountant as
to the availability of funds and allotment against which the
expenditure or obligations may be properly charged.
 Payment of obligations in violation of the requirements may
render the paying officer personally liable therefor.
 Public officials whose approval is required for payment of
vouchers have the obligation to refuse to sign them, in the
absence of a law or appropriation ordinance and the certification
of availability of funds for the purpose; otherwise they may be
held liable therefor.
Liability for Unexplained Wealth
 Law authorizing the recovery of unexplained wealth
o RA 1379
o RA 3019
o EO Nos. 1, 2, 14, and 14-A
 RA 1379 – provides for the forfeiture of unexplained wealth in
favor of the state of any property found to have been unlawfully
acquired by any public officer or employee and outlines the
procedure therefor. The SolGen has the authority to file the
petition before the Sandiganbayan.
 EO Nos. 1, 2, 14, and 14-A – special laws which are applicable
only to unexplained wealth of former President Marcos and his
wife, close relatives, subordinates, business associates, dummies,
agents, nominees. The PCGG has the authority to investigate and
prosecute the recovery of unexplained wealth before the
Sandiganbayan.
 RA 3019 – as amend, take into account in determining whether
there is unexplained wealth the properties in the name of the
spouse and dependents, including bank deposits, the acquisition
of which cannot be explained satisfactorily; as well as excessive
expenditures or ostentatious display of wealth, including frequent
travels abroad.
 Where a public officer is sued for unexplained wealthm his bank
deposits as well as those bank deposits held by other persons for
him may be inquired into and subpoenaed from the banks, as
exception to the bank secrecy rule.

(Pages 538-597)
CHAPTER VIII
A. Civil and Criminal Liabilities
A public officer is not liable for damages which a person may
suffer arising from the just performance of his official duties and within
the scope of his assigned task unless there is a clear showing that they
were motivated by malice or gross negligence amounting to bad faith.
(Orocio vs. COA, 213 SCRA 109)
There acts are presumed to be in good faith.
Three fold responsibility of a public officer for violation of duty or for
wrongful act or omission:
1. Civil Liability – if such violation or wrongful act results in damages
to an individual, the public officer may be held civilly liable to
reimburse the injured party (preponderance of evidence – emphasis
mine)
2. Criminal Liability – if the law violated attaches a penal sanction,
the erring officer may be punished criminally (proof of guilt beyond
reasonable doubt – emphasis mine)
3. Administrative Liability – such violation may also lead to
suspension, removal from office or other administrative sanctions
(substantial evidence – emphasis mine)
The administrative liability is separate and distinct from the penal and
civil liabilities. Thus, the dismissal of an administrative case does not
necessarily bar the filing of criminal prosecution for the same or similar
acts, which were the subject of the administrative complaint.
Note: A sitting President of the Republic of the Philippines is immune
from civil and criminal prosecution for offenses he may have
committed or being brought to court, but not after he has ceased to be
President. However he may removed from office on impeachment for
and conviction of culpable violation of the Constitution, treason,
bribery and graft and corruption, other high crime, or betrayal of trust.
B. Criminal Liabilities under the Revised Penal Code
Public officer is any person who, by direct provisions of law, popular
election or appointment by competent authority, shall take part in the
performance of public functions in the Government or shall perform in
said Government or in any of its branches public duties as an
employee, agent or subordinate official, of any class.
(With this definition a janitor is considered a public officer – emphasis
Santiago)
1. Knowingly rending unjust judgment
a. the judgment is unjust which is contrary to law or is not
supported by the evidence
b. the judge rendered it with conscious and deliberate
intent to do an injustice.
Good faith is a defense – a judicial officer, when required to exercise
his judgment or discretion, is not liable criminally, for any error he
commits provided he acts in good faith.
A judge is a term employed to designate a public officer selected to
preside and to administer the law in a court of justice.
2. Judgment rendered through negligence
a. judge acted with malice
b. judge failed to observe in the performance of his
duties, that diligence, prudence and care which the law
requires
3. Unjust Interlocutory order
A court order is interlocutory in character if it is provisional and leaves
substantial proceeding to be had in connection with its subject.
The term interlocutory refers to something intervening
between the commencement and the end of a suit which decides some
point or matter but is not a final decision of the whole controversy.
4. Malicious delay in administration of justice
a. there is unreasonable delay in the disposition of the
case far beyond the period mandated by law
b. the judge was actuated with malice, or with deliberate
intent to prejudice a party in the case
5. Prosecution of offenses; negligence and tolerance
a. dereliction of duty on the part of the public officer
2 acts punishable:
a. maliciously refraining from instituting prosecution for
the punishment of violators of the law, which may be
committed by any public officer tasked by law to
prosecute offenses
b. tolerating the commission of the offenses, which may
be committed by any public officer
6. Betrayal of trust by an attorney solicitor; revelation of
secrets
- any attorney-at-law or solicitor who, by any malicious
breach of proessional duty or inexcusable negligence or ignorance,
shall prejudice his client or reveal any of the secrets of the latter
learned by him in his professional capacity
7. Bribery
a. the accused is a public officer
b. that he received directly or through another some gift
or present, offer or promise
c. such gift, present or promise has been given in
consideration of his commission of some crime, or any
act not constituting a crime, or to refrain from doing
something which it is his official duty to do
d. that the crime or act relates to the exercise of his
functions as a public officer
8. Indirect bribery
a. accused is a public officer
b. he accepts gift
 c. the gift is given to him, or he accepts it by reason of his
office
9. Corruption of public officials
- any person who shall have made the offers or promises or
given gifts or present as bribe to a public official
10. Malversation of public funds or property
a. the offender is an accountable public officer
b. he applies public funds or property under his
administration to some public use
c. the use for which the public funds or property where
applied is different from the purpose for which they
were originally by law or ordinance
11. Technical Malverstation
a. that the defendant received in his possession public
funds or property
b. that he could not account for them and did not have
them in his possession when audited
c. that he could not give satisfactory or reasonable excuse
for the disappearance of said funds or property
12. Failure of accountable officer to render accounts
- any public officer whether in the service or separated
therefrom by resignation or any other cause, who is required by law or
regulation to render account to COA or to provincial auditor fails to do
so for a period of two months after the account should be rendered
13. Failure to render accounts before leaving the country
- any public officer who unlawfully leaves or attempts to
leave the Philippine Islands without securing a certificate from COA
showing that his accounts have been finally settled
14. Illegal use of public funds or property (same as technical
malversation)
- any public officer who shall apply any public fund or
property under his administration to an public use other than that for
which such fund or property were appropriated by law or ordinance
15. Failure to make delivery of public funds or property
- any public officer under obligation to make payment from
Government funds in his possession, who shall fail to make such
payment
16. Conniving with or consenting to evasion
- any public officer who shall consent to the escape of a
prisoner in his custody or charge
17. Evasion through negligence
- if the evasion of the prisoner shall have taken place
through the negligence of the officer charged with the conveyance or
custody of the escaping prisoner
18. Escape of prisoner under the custody of a person not a
public officer
- any private person to whom conveyance or custody of a
prisoner or person under arrest shall have been confided who shall
commit the crimes in 16 and 17
19. Infidelity in the custody of documents
a. that the offender be a public officer
b. that there be a document abstracted, destroyed or
concealed
c. that the document destroyed or abstracted be
entrusted to such public officer by reason of his office
d. that the damage or prejudice to the public interest or to
that of third person be caused by the removal,
destruction or concealment of the document
3 ways in committing the crime: removal, destruction and concealment
e.g. A stenographer who lost his stenographic notes under incredulous
circumstances.
20. Officer breaking the seal
- any public officer charged with the custody of papers or
property sealed by proper authority, which shall break the seals or
permit them to be broken
21. Opening of closed documents
- any public officer without proper authority, shall open or
shall permit to be opened any closed papers, documents or objects
entrusted to his custody
22. Revelation of Secrets by an officer
- any public officer who shall reveal any secret known to him
by reason of his official capacity, or shall wrongfully deliver papers of
which he may have charge and which should not be published
23. Public officer revealing secrets of private individual
- any public officer to whom the secrets of any private
individual shall become known by reason of his office who shall reveal
such secrets
24. Open disobedience
- any judicial or executive officer who shall openly refuse to
execute judgment, decision or order of any superior authority made
within the scope of the jurisdiction of he latter and issued with all the
legal formalities
25. Disobedience to order of superior
- any public officer who, having for any reason suspended
the execution of the orders of his superior, shall obey such superior
officer of the latter have disapproved the suspension
26. Refusal to assistance
- any public officer who, upon demand from competent
authority, shall fail to lend his cooperation towards the administration
of justice or other public service, if such failure shall result in serious
damage to the public interest or to a third party
27. Refusal to discharge elective office
 - any person who, having been elected by popular election
to a public office, shall refuse without legal motive to be sworn in or to
discharge duties of sais office
28. Maltreatment of prisoners
- any public officer or employee who shall over do himself in
the correction or handling of a prisoner or detention prisoner under his
charge, by the imposition of punishments not authorized by the
regulations, or by inflicting such punishment in a cruel and humiliating
manner
29. Anticipation of duties of a public officer
- any person who shall assume the performance of the
duties and powers of any public office or employment without first
being sworn in or having given the bond required by law
30. Prolonging performance of duties and powers
- any public officer who shall continue to exercise the duties
and powers of his office, employment or commission beyond the
period provided by law, regulations or special provisions or applicable
to case
31. Abandonment of office or position
- any public officer who, before the acceptance of his
resignation, shall abandon his office to the detriment of the public
service
32. Usurpation of legislative powers
- any public officer who shall encroach upon the powers of
the legislative branch of the government, either by making general
rules or regulations beyond the scope of his authority, or by
attempting to repeal a law or suspending the execution thereof
33. Usurpation of executive functions
- any judge who shall assume any power pertaining to the
executive authorities, or shall obstruct the latter in the lawful exercise
of their powers
34. Usurpation of judicial functions
- any officer of the executive branch of the government who
shall assume judicial powers or shall obstruct the execution of any
order or decision rendered by any judge within his jurisdiction
35. Disobeying request for disqualification
- any public officer who, before the question of jurisdiction is
decided, shall continue any proceeding after having been lawfully
required to refrain from so doing
36. Orders or requests by executive officers to any judicial
authority
- any executive officer who shall address any order or
suggestion to any judicial authority with respect to any case or
business coming within the exclusive jurisdiction of the courts of
justice
37. Unlawful appointments
- any public officer who shall knowingly nominate or appoint
to any public office any person lacking legal qualification therefor
38. Abuses against chastity
- any pubic officer who shall solicit or make immoral or
indecent advances to a woman interested in matters pending before
such officer for decision, or with respect to which he is required to
submit a report to or consult with superior officer
- any warden or other public officer directly charged with the
care an custody or prisoners or persons under arrest which shall solicit
or make immoral or indecent advances to a woman under his custody
39. Falsification of public officer, employee or notary or ecclesiastical
minister
- any officer, employee, or notary who, taking advantage of
his official position, shall falsify a document
a. the act was committed by the public officer with grave
abuse of his office, that is in deeds, instruments,
indentures, certificates etc. in the execution of which
he participates by reason of his office
b. malicious intent to injure a third person; and in the
case of untruthful statements in a narration of facts,
there is legal obligation to disclose the truth
C. Liabilities under the Anti-Graft Act
Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act)
- penalizes public officer who commits any of the corrupt
practices therein
- falls within the investigatory and prosecutory jurisdiction of
the Ombudsman
Public Officer – includes elective and appointive officials and
employees, permanent or temporary whether in the classified or
unclassified or exempt service receiving compensation, even nominal
from the government
Acts in violation of RA No. 3019
Sec 3a
 persuading inducing or influencing another public officer to
perform an act constituting a violation of rules and regulations
duly promulgated by competent authority or an offense in
connection with the official duties of the latter, or allowing himself
to be persuaded, induces to commit such violation or offense
(sec. 3a)
Sec 3b
 directly or indirectly requesting or receiving any gift, present
, share, percentage, or benefit, for himself or foe any other
person, in connection with any contract or transaction between
the Government and any other party, wherein the public officer in
his official capacity has to intervene under the law. Exception:
unsolicited gifts or presents of small or insignificant value offered
or given as a mere ordinary token of gratitude or friendship
according to local customs or usage.(sec. 3b)
 3 punishable acts under sec. 3b (1) demanding receiving (2)
receiving (3) demanding, requesting and receiving
 elements in violation of sec. 3b (1) that offense was
committed by a public officer (2) that such officer requested
 and/or received a gift, present, etc. (3) that the gift, present, etc.
was for the benefit of said public officer (4) that said public
officer requested and/or received the gift, present etc. in
connection with a contract or transaction with the government (5)
that said officer has the right to intervene in such contract or
transaction in his official capacity
 There must be clear intention on the part of the public
officer to take the gift or money so offered and considers it as his
own from then on. Mere physical receipt unaccompanied by any
other sign, circumstance or act to show acceptance is not
sufficient otherwise it would encourage unscrupulous individuals
to frame up public officials by simply putting within their physical
custody some gift, money or other property.
 The “transaction” should have a meaning analogous to
contract, which is one which involves some consideration as in
credit transaction. A preliminary investigation of a crime being
conducted by a prosecutor is neither a contract or transaction,
and his receipt of money for a favorable resolution of dismissing
the case does not violate said provision, but may constitute
bribery.
 sec. 3 b of RA No. 3019 refers to a public officer whose
official intervention is required by law in a contract or transaction.
An assistant principal of a high school, who followed up the
release of the salary and differentials of the teachers, for some
contributions from the latter, does not violate the provision
because he is not required by law to intervene in the payment of
the salary differentials
Sec 3c
 directly or indirectly requesting or receiving any gift, present
or other pecuniary or material benefit, for himself or for another,
from any person for whom the public officer, in any manner or
capacity has secured or obtained, or will secure or obtain, any
Government permit or license, in consideration for the held given
or to be given
 elements of sec 3c: (1) accused is public officer (2) in any
manner or capacity he secured or obtained, or would secure or
obtain, for a person any government permit or license (3) he
directly or indirectly requested or received from said person any
gift, present or other pecuniary or material benefit for himself or
for another (4) he requested or received the gift, present or other
pecuniary or material benefit in consideration for the help given
or to be given
Sec 3d
 accepting or having any member of his family accept
employment in a private enterprise which has pending official
business with him during the pendency thereof or within one year
after its termination
 the person offering or giving to the public officer the
employment is liable along with the offending public officer, for
the crime committed
Sec 3e
 causing undue injury to any party, including the
government, or giving any private party any unwarranted benefit,
advantage or preference in the discharge of his official
administrative or judicial functions through manifest partially,
evident bad faith or gross inexcusable negligence.
 2 acts punishable under sec 3e: (a) by causing any undue
injury to any part, including the government (b) by giving any
private party any unwarranted benefit, advantage or preference
 elements: (1) the accused is a public officer discharging
administrative or judicial functions (2) public officer commits the
prohibited acts during the performance of his official duties or in
relation to his public position (3) he must acted with manifest
partiality, evident bad faith, or gross inexcusable negligence (4)
his action caused undue injury to any party, including the
government, or grave any party any unwarranted benefit,
advantage or preference in the discharge of his functions
Sec 3f
 neglecting or refusing, after due demand or request without
sufficient justification, to act within a reasonable time on any
matter pending before him for the purpose of obtaining directly or
indirectly, from any person interested in the matter some
pecuniary or material benefit or advantage, or for the purpose of
favoring his own interest or giving undue advantage in favor of or
discriminating against any other interested party
 elements: (1) the offender is a public officer (2) said officer
has neglected or has refused to act without sufficient justification
after due demand o request has been made on him (3)
reasonable time elapsed from such demand or request without
the public officer having acted on the matter pending before him
(4) such failure to do act is for the purpose of obtaining, directly
or indirectly, from any person interested in the matter some
pecuniary or material benefit or advantage in favor of an
interested party, or discriminating another
Sec 3g
 entering on behalf of the government, into any contract or
transaction manifestly and grossly disadvantageous to the same
whether or not the public officer profited or will profit thereof
Sec 3h
 acts in violation of sec 3h: (1) directly or indirectly having
financial pr pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part
in his official capacity (2) directly or indirectly having financial or
pecuniary interest in any business, contract or transaction in
which he is prohibited by the Constitution or by law from having
nay interest
Sec 3i
 directly or indirectly becoming interested, for personal gain
or having a material interest in any transaction or act requiring
the approval of a board, panel or group of which he is a member,
and which exercises discretion in such approval, even if he votes
against the same or does not participate in the action of the
board, committee, panel or group
 interest for personal gains shall be presumed against those
public officers responsible for the approval of manifestly unlawful.
inequitable, or irregular transactions or acts by the board, panel
or group to which they belong
Sec 3j
 Knowingly approving or granting any license, permit,
privilege or benefit in favor of any person not qualified for or not
legally entitled to such license permit, privilege or advantage, or
for mere representative or dummy of one who is not so qualified
or entitled
Sec 3k
 divulging valuable information of a confidential character,
acquired by his office or by him on account of his official position
to unauthorized persons, releasing such information in advance of
its authorized release date. The person urging the divulging or
untimely release of the confidential information is liable, together
with the offending officer, in the crime committed
Penalties for violation of RA No. 3019 – imprisonment for not less than
six years and one month nor more than fifteen years, perpetual
disqualification from public office and confiscation or forfeiture in favor
of the government of any prohibited interest and unexplained wealth
manifestly out of proportion to his salary and other lawful income.
D. Other Crimes of Public Officers Jurisdiction of court martial

a. Crime of plunder - offenses committed by the members of the Armed Forces

and other persons subject to military law are cognizable by court
-any public officer who, by himself or in connivance with martial if such offenses are service connected.
members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other person, amasses, accumulates or
acquires ill-gotten wealth through a combination or series of overt or
criminal acts in the aggregate amount or total value of at least
75,000,000.00 pesos.

- penalty is life imprisonment with perpetual disqualification

from holding any public office

b. Violation of the code of conduct for public officials (RA

6713)

- any public official or employee, regardless of whether or

not he holds office or employment in causal, temporary, holdover,
permanent or regular capacity who violates the provision of the said
Code with a fine not exceeding the equivalent of 6 months salary or
suspension not offense after due notice and hearing by the appropriate
body or agency

- penalty is imprisonment of not exceeding 5 years or a fine

not exceeding 5,000.00 or both and in the discretion of the court of
competent jurisdiction, disqualification to hold public office

c. Violation of PD 46

-any public official or employee, whether of the national or

local governments, who receives, directly or indirectly, and for private
persons who gives, or to offers directly or indirectly, and for private
persons who gives, or offers to give, any gift, present or other valuable
thing on any occasion including Christmas , when such gift or present
or valuable thing is given by reason of his official function

E. Jurisdiction over criminal offenses of public officers

The jurisdiction of criminal offenses committed by public

officials and employees may fall either with the Sandiganbayan or
regular courts. The Sandiganbayan has either original or exclusive
jurisdiction or appellate jurisdiction from the appeals from regular
courts.

Appeals from Sandiganbayan brought to Supreme Court on a

petition for reviews on certiorari.

Jurisdiction is determined by the allegations of the complaint

or information presented.

Jurisdiction of Sandiganbayan:

1. Violations of Anti-Graft and Corrupt Practices Act

2. Regional Director and higher, Grade 27 and higher

3. Provincial Officials, City Officials, Consuls, Philippine Army, Officers

of PNP with position of Regional Director and higher, City and
Provincial Prosecutors and higher, Heads of GOCCs, Members of
Congress, Members of Judiciary exempt SC employees, Constitutional
Commissions Chairmen,