ADMINISTRATIVE AGENCY
(2010 EDITION)
ADMINISTRATIVE LAW
That branch of public law dealing with the doctrines and
principles governing the powers and procedures of
administrative agencies including especially judicial
review of administrative action.
ADMINISTRATIVE AGENCY
-is any governmental authority other than a court or
legislative body performing rule-making or adjudicatory
functions.
Factors which gave rise to admin. agencies
1) Growing complexity of modern life - as society gets
more complex, there are more things to regulate
2) The multiplication of the subject of governmental
regulation
3) The increased difficulty of administering the law
Constitutional status of Admin. Agencies
* The admin. agency does not strictly belong to one
branch.
* The agency does not constitute a 4th branch of
government because the constitutional scheme
(separation of powers) only allows 3 branches of
government.
Role of Admin. Agencies
Residual Powers
* The powers given to the three branches spill over
because of the 3 shortfalls. There is a need for a body
which would act as a catching mechanism; otherwise,
the three branches would collapse. The AA supports the
trichotomy of powers.
Powers of an Administrative Agency
a) QUASI-LEGISLATIVE (Rule-making )
- includes: licensing (permits)
b) QUASI-JUDICIAL (Adjudicatory)
- includes: price/rate-fixing
- it is in these power, that RES JUDICATA applies
c) DETERMINATIVE (Implementing/Executory )
Notes: The powers enumerated above will be discussed
further in Part III of this lecture note.
NOTICE AND HEARING:
(The rules below also apply with regard to RATES)
NOTICE & HEARING
- Rule is PROCEDURAL or where rules are MERELY
LEGAL OPINION.
NO NOTICE & HEARING
- No Notice is required in preparation of substantive
rules where CLASS TO BE AFFECTED IS LARGE and
questions to be resolve involve use of discretion by the
rule making body.
- Administrative rule in nature of SUBORDINATE
LEGISLATION and is designed to implement a law by
PROVIDING DETAILS and that before it is adapted there
must be a HEARING.
- The administrative rule substantially ADDS or
INCREASES the burden of those concerned, as such, an
administrative agency must accord those directly
affected a chance to be heard.
THE DOCTRINE OF SEPARATION OF POWERS:
* To prevent absolutism.
* Under the doctrine of separation of powers, The
Supreme Court cannot assume the administrative
function of supervisory control over executive officials.
* In Noblejas vs. Teehankee (1963), the Supreme Court
struck down Noblejas’ claim that the Commissioner of
Land Registration, being entitled to the same
compensation, emoluments & privileges as a CFI judge,
can only be investigated and suspended in the same
manner, and not by the Secretary of Justice.)
* Members of the Supreme Court cannot sit as a board
of arbitrators. (Manila Electric Co. v. Pasay Transpo,
1932)
* A judge cannot become a member of a provincial
committee on justice which performs administrative
functions. (Manzano, 1988)
 HOW DO THESE AGENCIES COME INTO BEING?
a) By Statute
b) By the Constitution
c) By Executive Orders - usually fact-finding agencies
CREATED BY CONGRESS
CREATED BY THE CONSTITUTION
1. Can be modified by Congress
2. May be altered or abolished
1. Perform more sensitive functions
2. – Underscoring the independence of the agency thus,
insulates it from political pressure
* The Chief Executive exercises CONTROL over
agencies and offices which perform rule-making /
adjudicatory functions.
* If the agency is created by Congress - consider
the law that created it. If the law is silent as to
the control which the President may exercise, the
President can only SUPERVISE, i.e., to see to it
that the laws are faithfully executed.
CONTROL OF ADMINISTRATIVE ACTION
CONTROL: The Power to Change, Modify, Alter
decisions of subordinates
SUPERVISION: Power to Oversee
A. Legislative Control
Ways of exercising control by Congress
a) Abolition
* Isn’t effective because the admin. agencies are
needed.
b) Appropriation
* Isn’t effective since appropriations are always given.
If no appropriation is given, the public would suffer.
c) Investigatory
* Effective only as an aid in legislation and cannot serve
the need for constant regulation
d) Prescription of Legislative Standards
* Ineffective because the standards should be flexible
and those who make the standards lack the expertise.
The standards must be EFFECTIVE, SUFFICIENT.
* Most of the time, Congress is not definite because of
(a) varying conditions and (b) differences in the need for
regulation
e) Prescription of Minimum Procedural
Requirements
* There should be a shift to Administrative standards
which allows the agencies to come up with the
standards themselves.
* This can be effected in these ways:
1) Modify the Doctrine
2) Procedural Due Process
* Congress can prescribe minimum procedural
requirements which have a general applicability to all
agencies. But even with this, there are still problems,
namely;
1) Agencies are not bound by the technical rules
of procedure
2) Agencies need flexibility to act
* These minimum procedural requirements may be
found in Book 7 of the Admin. Code of 1987.
B. Executive Control
* Executive power is vested in the President (Art.
VII, Sec. 1, 1987 Constitution)
* RULE: The President shall have control of all the
executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed. (Art. VII,
Sec. 17, 1987 Constitution)
* EXCEPTIONS: In the case of agencies created by the
legislature (e.g. NLRC, BIR, LTFRB), one must check the
enabling law regarding Congress’ intention regarding
this.
* If the law is silent, the President cannot exercise Grounds of Administrative Complaint (AO 7 issued
control but merely supervision. Sept 15, 2003) Modifies sec 19 of RA 6770:

* However, in cases involving agencies under the 1. Contrary to law or regulations

executive branch, the President has control.

2. Unreasonable, unfair, oppressive or

C. Judicial Control discriminatory

* Judicial review of administrative actions 3. Inconsistent w/ general course of an agency’s

functions though in accordance w/ law

D. Ombudsman -* Investigates and Prosecutes

4. Based on mistake of law or an arbitrary
ascertainment of facts
* RA 6770 mandates the ombudsman/deputies not only
to act promptly on complaints but also to enforce
administrative, civil and criminal liabilities of government 5. Exercise of discretionary powers but for an
officers and employees in every case where evidence improper purpose
warrants to promote efficient service by the government
to the people.
6. Irregular, immoral or devoid of justification

* The Ombudsman may not veto or revise an exercise of

judgment or discretion by an agency or officer upon 7. Due to any delay or refusal to comply w/
whom that judgment or discretion is lawfully vested, referral or directive of Ombudsman or any of his
esp. where the matter involves basically technical deputies against the officer or employee to whom
matters coming under the special technical knowledge it was addressed
and training of the agency / officer. (Concerned Officials
of MWSS v. Vasquez (1995), where the Ombudsman
was held to have interfered with a bid-and-award 8. Other ground provided under EO 292
contract.)
Upon receipt of Administrative complaint, it shall be
* The Ombudsman has no jurisdiction to initiate an evaluated to determine whether same may be:
investigation into the alleged delay in the disposition of a
judicial case. It is the Supreme Court which has
1. Dismissed outright for any of grounds stated in RA
administrative supervision over all courts and the
6770 provided that dismissal is discretionary on
personnel thereof. (Dolalas v. Office of the
Ombudsman.
Ombudsman, 1996)

2. Treated as a grievance/request for assistance w/c

* And that ,Supreme Court will not interfere with
may be referred to the Public Assistance Bureau for
Ombudsman’s exercise of his constitutionality mandated
appropriate action.
investigatory and prosecutory powers since it is beyond
the ambit of the court (Ledesma v CA, July 2005)
3. Referred to other disciplinary authorities for taking of
appropriate proceedings
In Ledesma v CA: Petitioner contends that the word
“recommend” stated in sec 13(3) of Art XI of
Constitution is only advisory in nature rather than one 4. Referred to appropriate office/agency or official for
having binding effect. Supreme Court however ruled that conduct of further fact-finding investigation
the Ombudsman has authority to determine the
administrative liability of public official and employee
and direct and compel the head of the office or agency 5. Docketed as an administrative case for the purpose of
concerned to implement the penalty imposed. administrative adjudication by Office of Ombudsman

Ombudsman has power to investigate and prosecute POWERS OF ADMINISTRATIVE AGENCIES

illegal acts of officials and employees (whereby such
authority is concurrent with other courts in respect of
the offense charged). What are the matters that Congress cannot delegate?

It also has power to punish for contempt in accordance
with Rules of Court and it can preventively suspend any
elective or appointive official pending an investigation
when the case so warrants. Ledesma v CA abrogated
the rule in Tapiador.
* Creation of Municipalities (Pelaez v. Auditor-
General)
* Imposition of Criminal Penalties (US v. Barrias)
 Administrative Rules with Penal sanctions:
-Must be published in full text (Sec. 6 (2), Book 7,
Admin Code)
If a rule is penal in character, it is required that the rule
is published before it takes effect. (People v. Que Po
Lay)
*The law itself must so declare the act as punishable
*Penal statutes exclusive domain of the legislature,
cannot be delegated
In People v. Maceren, it was held that "Administrative
rules and regulations cannot amend or modify or
expand the law by including, prohibiting or
punishing certain acts which the law does not
even define as a criminal act."
* Designation of a particular act as a crime (People v.
Maceren)
* Creation of standards on the part of the agency
Requisites for a Valid Delegation:
a) The law must be complete in itself; must set forth a
policy to be executed.
b) Must fix a standard, the limits of which are sufficiently
determinate or determinable, to which the delegate
must conform in the performance of his functions.
* The standard may be expressed or implied (Edu v.
Ericta)
* The standard does not have to be found in the law
being challenged. It may be embodied in other statutes
on the same subject matter as that of the challenged
legislation. [Chongbian v. Orbos (1995)]. Here, the
challenged law was the ARMM Organic Act. The
standard was found in the Reorganization Act.]
KINDS OF ADMINISTRATIVE
RULES/REGULATIONS
a. Supplementary/Detailed Legislation
Rules “to fix details” in the execution and enforcement
of a policy set out in the law (ex: Rules implementing
the Labor Code)
b. Interpretative Legislation
Interpreting the provisions of a statute to be enforced
and they are binding on all concerned until they are
change (ex: BIR Circulars)
c. Contingent Legislation
Rules/Regulations made by the administrative authority
on existence of certain facts or things upon which the
enforcement of the law depends.
Examples of Sufficient Standards include:
* Assumption by Labor Minister over strikes affecting
national interest (Free Telephone Workers Union v.
Minister of Labor and Employment, 1981)
* Reorganization of administrative regions in ARMM
(Chiongbian v. Orbos, 1995) Standard may be implied
from other laws, e.g. RA 5435 (simplicity, economy,
efficiency)
* Fixing of rates by National Telecommunications
Commission (Philcomsat v. Alcuaz, 1989) The standards
used were public safety, public interest, reasonable
feasibility and reasonable rates (case to case basis)
-WON rate-fixing is legislative or quasi-judicial
Legislative/Quasi-judicial
Extent of applicability
*Rate applies to all
*Rate directed only at 1 entity
Notice & hearing
*May be dispensed with unless the law provides
otherwise
Absolutely necessary
* A rate is any charge to the public for a service open to
all and upon the same terms, including individual or joint
rates, tolls, classification or schedules thereof, as well as
communication, mileage, kilometreage and other special
rates which shall be imposed by law or regulation to be
observed and followed by any person. (Sec. 2 (3), Book
VII, Admin Code)
* AA to publish or circulate notices of proposed rules
and afford interested parties the opportunity to submit
their views prior to the adoption of any rule. (Bk. VII Sec
9(1))
* To be valid, proposed rates must be published in a
newspaper of general circulation at least 2 weeks before
the first hearing thereon (Bk. VII, Sec 9(2)).
* Function delegated to AAs because the legislature has invalid since the same being impermissible contravention
not the time, the knowledge nor the means necessary to of Sec 83 of the RPC which provides that the death
handle the matter efficiently. penalty shall not be inflicted upon a woman while she is
pregnant or w/in 1 yr. after delivery.

* Need for dispatch, for flexibility and for technical

know-how better met by AAs. 3. Reasonable

PSC not authorized to delegate power to fix rates to a 4. Publication

common carrier or other public service. Power to fix
rates, being a delegated power cannot be delegated
further (Panay Autobus v. Philippine Railway) *Publication must be full or it is no publication at all.

Rate-fixing must be exercised by the agency directly. * Every agency to file with the UP Law Center three (3)
The power to fix rates, which is a delegated power, certified copies of every rule adopted by it. (Bk. VII, Sec.
cannot be delegated further (KMU v. Garcia) 3)

Principle on rate fixing and requirement of notice * Date of effectivity of rule: 15 days from the date of
and hearing filing (Bk. VII, Sec. 4)

* If the rate to be fixed applies to all utilities in general - * EXCEPTIONS:

-- LEGISLATIVE in character --> Notice and hearing may
be dispensed with unless the law requires otherwise.
1. Different date is fixed by law or specified in the rule

* If the rate to be fixed applies to one entity -- QUASI-

JUDICIAL in character --> notice and hearing 2. In cases of imminent danger to public health, safety
required.(Vigan Electric v. PSC; Philcomsat v. Alcuaz) and welfare,

* The power to hear a case can be delegated, but not * Publication is indispensable
the power to decide. (American Tobacco Co. v. Director
of Patents, 1975)
* Publication essential especially if general in character

* The power to decide can be delegated provided that

* Rule on publication of administrative issuances
the power to delegate such function was not withheld
different from the Tañada ruling
expressly or impliedly. (Realty Exchange v. Sendino,
1994, where the issue was whether the HLURB could
split itself into divisions when hearing cases instead of * Tanada Ruling: Publication in O.G. or newspaper of
meeting en banc.) general circulation is required for effectivity of
administrative rules and regulations.
QUASI-LEGISLATIVE/RULE MAKING:
* What need not be Published:
REQUISITES FOR VALIDITY OF RULES:
1. Interpretative regulations
1. Issued under Authority of Laws
2. Internal regulations (regulating only personnel of
agency
=> Must not go beyond the standards prescribed by the
law.
3. Letters of instructions issued by administrative
superior to their subordinates
=> General in Application

Notes: In the Admin Code of 1987: Filing of copy of

=> Valid as long as germane, consistent, implements
regulations is sufficient for effectivity.
the law

Limits on Rule-making Power:

2. Within the Scope and Purview of the Law

a. Authorized by law (Olsen v. Aldanese)

Sec 17 of the rules and regulations implementing RA
8171 which provided that death penalty shall not be
inflicted upon a woman w/in 3 years next following the b. Must not amend the law (Syman v. Jacinto)
date of sentence or while she is pregnant was declared
c. Must not define a criminal act (People v. Maceren)
d. Must be germane to the purpose of the law which it
was meant to implement (Toledo v. CSC)
e. Must not restrict, expand, and diminish law
(Commissioner of Internal Revenue v. CA; Land Bank v.
CA; GMCR v. Bell Telecoms)
f. Action of the Admin. Agency to be set aside if there is
an error of law, a grave abuse of power or lack of
jurisdiction or grave abuse of discretion clearly
conflicting with either the letter or the spirit of the law
Licensing Function
* Licensing includes agency process involving grant,
renewal, denial, revocation, suspension, annulment,
withdrawal, limitation, amendment, modification or
conditioning of a license. (GR-DR-SAM-C)
* License includes the whole or any part of any agency
permit, certificate, passport, clearance, approval,
registration, charter, membership, statutory exemption
or other form of permission, or regulation of the exercise
of a right or privilege. (PCPC-ARCM-SPR)
* When the grant, renewal, denial or cancellation of a
license is required to be preceded by notice and hearing,
it cannot be withdrawn, suspended, revoked or annulled
without notice and hearing (Sec 17(1), Bk, VII)
* No license may be withdrawn, suspended, revoked or
annulled without notice and hearing (Sec 17(2), Bk VII)
EXCEPTIONS:
1. In cases of willful violation of pertinent laws, rules
and regulations
2. When public security, health or safety require
otherwise
* Where the licensee has made timely and sufficient
application for the renewal of a license, the existing
license shall not expire until the application shall have
been finally determined by the agency. (Sec. 18, Bk, VII)
* A license is always revocable. (Gonzalo Sy Trading)
DETERMINATIVE POWERS
a. Enabling: Permit or allow something which the law
undertakes to regulate, (ex: grant or denial of licenses
to engage in a particular business)
b. Directing: Power of Assessment (ex: BIR)
c. Dispensing: Exempt from a general prohibition or
relieve an individual or corporation from an affirmative
duty (ex: authority of zoning boards to vary provision of
zoning ordinances)
d. Summary: Power to apply compulsion or force
against person or property to effectuate a legal purpose
without a judicial warrant to authorize such action (ex:
health inspection
e. Examining: Investigating power, requires the
production of books, papers and attendance of
witnesses.
*Power to punish contempt must be expressly granted
to the administrative body and when so granted may be
exercise only when administrative body is actually
performing quasi-judicial functions
*Officer must be authorized to administer oaths…
POWER TO ISSUE SUBPOENA AND DECLARE
CONTEMPT
Subpoena
Do all agencies with quasi-judicial functions have the
power to issue subpoena? Yes. As long as in exercise of
quasi- judicial – even if charter is silent.
Power is vested in the Admin Agency in the Admin Code
(See Sec. 13 Book VII)
Test for Valid Enforcement of Subpoena:
1. Within Authority of the Agency ( Expressly authorized
by law )
2. Demand is not too indefinite – Subpoena duces tecum
3. Info is reasonably relevant
(Evangelista v. Jarencio)
Rationale: power to adjudicate will be rendered inutile if
can’t subpoena
Contempt
Do all agencies with quasi-judicial functions have the
power to cite for contempt?
* No. Power must be expressly granted in the agency’s
charter (ex. PD 902-A creating the SEC)
* If no law, must invoke the aid of RTC
* Rationale: Power to punish for contempt inherently
judicial
* The power to cite for contempt can only be used in
connection with judicial and quasi-judicial functions and
with ministerial functions. (Guevara v. COMELEC)
WARRANTS OF ARREST, ADMINISTRATIVE
SEARCHES
Can administrative agencies issue warrants of arrest?
* No. In Salazar v. Achacoso, it was held that under the
1987 Constitution only a judge may issue search or
arrest warrants. EXCEPTION: in cases of deportation of
illegal and undesirable aliens following a FINAL ORDER
OF DEPORTATION, for the purpose of deportation
In Qua Chee Gan v. Deportation Board, the two ways of
deporting are through the:
a.) Commissioner of Immigration under Sec 37 of CA
618
b.) President after due investigation pursuant to Sec 69
of Revised Administrative Code.
*But no grounds needed – Has sole discretion under
international law
Can immigration authorities issue warrants of arrest
against undesirable aliens?
YES, but only if issuance is pursuant to a final order of
deportation. Immigration authorities cannot issue
warrants for purposes of investigation, as the
Constitution provides that only judges can issue
warrants to determine probable cause. (Qua Chee Gan
v. Deportation Board, 1963)
*Note: The Constitution does not distinguish between
warrants in a criminal case and administrative warrants
in administrative proceedings.
IMPOSITION OF FINES AND PENALTIES
Do agencies have the power to impose fines and
penalties?
Yes. In the case of Oceanic Steam Navigation v.
Stranahan, the Court laid down the tests for the validity
of imposition of fines
Test for Validity of Imposition:
1. Subject matter is within the control of Congress
2. Penalty is administrative or civil and not criminal
which would involve deprivation of property
3. Power must be expressly conferred to an
administrative agency; power cannot be exercised by
implication
The fixing of penalties for criminal offense is the
exercise of legislative power which cannot be delegated
to a subordinate authority. (U.S. v. Barrios)
QUASI-JUDICIAL/ADJUDICATORY POWER
Proceedings partake of the character of judicial
proceedings. Administrative body is normally granted the
authority to promulgate its own rules of procedure
provided they do not increase, diminish or modify
substantive rights and subject to disapproval by the
Supreme Court.
Cardinal Primary Rights
As held in Ang Tibay vs. CIR, the seven cardinal primary
rights for Administrative due process are:
1. Right to a hearing
2. Right to have the evidence considered
3. Decision must be supported by evidence
4. Substantial evidence
5. Transparency of records
6. Independent consideration of the judge
7. Decision must reveal relevant issues
* Absence of one of these 7 rights is sufficient to
question the proceeding
* Presence of a party at a trial is not always the essence
of due process. All that the law requires is that the
parties be given notice of trial, an opportunity to be
heard. (Asprec vs. Itchon)
* The right of a party to confront and cross-examine
opposing witnesses is a fundamental right which is part
of due process. If without his fault, his right to cross-
examine is violated, he is entitled to have the direct
examination stricken out. (Bachrach Motors v. CIR)
* The law, in prescribing a process of appeal to a higher
level, contemplates that the reviewing officer is a person
different from the one who issued the appealed decision.
Otherwise, the review becomes a farce; it is rendered
meaningless. (Zambales Chromitev. CA; Anzaldo v.
Clave; Rivera v. CSC)
* Evidence on record must be fully disclosed to the
parties. (American Inter-Fashion Corporation v. Office of
the President)
Notice and Hearing
No Notice and hearing requirement in case of a mere
conference (Equitable v. NLRC)
Power to hear may be delegated but not the power to
decide (American Tobacco Co. v. Director of Patents)
When required
a. When law specifically requires notice and hearing
(Halili v. PSC; Bautista v. WCC; Equitable Banking Corp
v. NLRC)
b. When it affects a person’s status and liberty
(Commissioner of Immigration v. Fernandez)
*If administrative action is based on an undisputed fact
and not a quasi-judicial function, notice and hearing may
be dispensed with.
When not required
*Grant of provisional authority for increased rates or to
engage in a particular line of business
*When discretion is exercised by an officer vested with it
upon an undisputed fact (Suntay v. People: whereby
officer cancelled passport)
*If it involves the exercise of discretion and there is no
grave abuse of discretion (De Bisschop v. Galang)
*When rules to govern future conduct of persons or
enterprises, unless law provides otherwise (Taxicab
Operators of Manila v. Board of Transportation)
*In the valid exercise of police power (Pollution
Adjudication Board v. CA)
*Summary proceedings of distraint and levy upon the
property of delinquent taxpayer or summary abatement
of nuisance per se
Form and Promulgation of Judgment
Decision should state: Facts , Issues and Law
* Normally, this will be followed by the agency to the
letter. However, there are times when there is
substantial compliance (Therefore not violative of due
process)
* It is not necessary that the order make its own
discussion of the evidence and the findings of fact if the
court is satisfied with the report of the examiner which
already contains the discussions of the findings and
conclusions. The rule is otherwise when the court
disagrees with the findings of the examiner in which
case the court must specify and discuss the reasons for
their dissent. (Indias v. Phil. Iron Mines)
* The requirement that all decisions should contain a
statement of facts and the law on which it is based is
only applicable to decisions of courts of record, not to
quasi-judicial agencies. However, the due process clause
applies with regards to procedural due process.
(Valladolid v. Inchiong)
* If a power to decide is granted to a specific authority,
it can’t abdicate from this responsibility by delegating
the duty to decide the case. It must personally decide
such. It can delegate the power to hear but not the
power to decide. (American Tobacco v. Director of
Patents)
* The Board’s act of dividing itself into divisions of three
is valid because under EO 648 the Board can adopt rules
of procedure for the conduct of its business and perform
such functions necessary for the effective
accomplishment of its functions. The power to delegate
a particular function can be implied from the power of
AA to issue rules and regulations necessary to carry out
its functions. (Realty Exchange v. Sendino)
Right to self-incrimination may be invoked by the
respondent at the time he is called by the complainant
as witness, however ,if he voluntary takes witness
stand, he can be cross-examined but he may invoke
such right at time question calls for an answer which
incriminates him of an offense other than that charged is
asked.
JURISDICTION
* Refer to the enabling statute creating the agency,
especially its powers and jurisdiction
* Jurisdiction is created and conferred by law
* Pendency of a criminal case will not divest the
Deportation Board of its jurisdiction over undesirable
aliens in a deportation proceeding. (Go Tek v.
Deportation Board)
* The Collector of Customs constitutes a competent
tribunal when sitting in forfeiture proceedings. (Dela
Fuente v. De Veyra)
* CHR can only investigate violations of civil-political
rights. It cannot try and decide cases as ordinary courts
of justice, or even quasi-judicial bodies do. (Cariño v.
CHR)
* CHR cannot issue cease and desist order since the
CHR can only investigate. The power to issue cease and
desist order is reserved for quasi-judicial & judicial
powers (Simon, Jr. v. CHR)
* The Bureau of Immigration has the primary jurisdiction
or exclusive authority to try and hear cases against an
alleged alien. Judicial intervention should be granted
only in cases where claim of citizenship is so substantial
that there are reasonable grounds to believe that the
claim is correct. (Board of Commissioners v. Dela Rosa)
* The HLURB has jurisdiction over specific performance,
annulment of mortgage and all other matters which
pertain to sound real estate practice. (Union Bank v.
HLURB)
* The CAB is authorized by RA 776 to issue temporary
operating permit or CPCN. (PAL v. CAB)
Administrative and Judicial Proceedings Arising
from the same facts
* The difference in the proceeding (one administrative,
the other criminal) is not legal incompatibility but merely
physical incompatibility. These 2 proceedings are
independent of each other involving different causes of
action and therefore can proceed simultaneously.
(Galang v. CA)
* Matters that are material in administrative case are not
necessarily relevant in criminal case. There are excuses,
defenses and attenuating circumstances which are
relevant in an administrative proceeding which is not
admissible in trial in crim cases. (Villanos v. Sabido)
* The trial court had no jurisdiction to order
reinstatement since the judgment in a criminal case is
limited to acquittal or conviction with accessory
penalties. Only the NLRC could have ordered
reinstatement with back wages. (PNR v. Domingo)
* The criminal case for falsification is entirely distinct
from the administrative proceedings conducted by the
COMELEC against the petitioner although both arose
from the same set of facts. The dismissal of the criminal
complaint against Tan is not a bar to the administrative
proceeding. (Tan v. COMELEC)
Rules of Evidence
* Admin Agencies not bound by technical rules of
evidence but due process must be observed
* RATIO: To allow Admin Agencies to act with speed
and flexibility
What is the pervasive principle?
* Technical rules of evidence and procedure do not
strictly apply to administrative proceeding, but this does
not mean they can disregard certain due process
requirements.AAs may act on its own and use methods
which may best constitute substantial evidence. (Estate
of Buan v. Pambusco)
* The SC not required to examine the proof de novo.
The only function of the SC is to determine WON there is
evidence before the Commission upon which its decision
might be reasonably be based. (Rizal Light Co. v.
Municipality of Rizal)
REVIEW OF ADMINISTRATIVE DECISIONS
Notes: Silence of Congress should not be interpreted
as indicating a legislative intent to preclude judicial
review. (Uy v. Palomar)
Notes: Exhaustion and its Colloraly Principles are
applicable only in case where the Administrative Agency
concerned exercises Quasi-Judicial Powers. If such
Administrative Agency exercises Quasi-Legislative
function, then immediate judicial recourse is permitted.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
*Where law has delineated a procedure by which
administrative appeal or remedy could be effected, the
same should be followed before recourse to judicial
action can be initiated
GEN. RULE: Courts cannot interfere with proceedings
undertaken by Admin Agencies (AA)
EXCEPTIONS:
(1) AA has gone beyond statutory authority
(2) AA exercised unconstitutional powers
(3) AA clearly acted arbitrarily and without regard to his
duty
(4) Grave abuse of discretion
(5) Decision vitiated by fraud, imposition or mistake
(Manuel v. Villena)
Notes: The exceptions mentioned above are also the
grounds where an AA exercising Quasi-Legislative
function may seek immediate recourse to the court of
law
FAILURE TO EXHAUST:
In the case of Republic (PCGG) v. SB, the Court held
that 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 this
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 (BY FILING A MOTION TO
DISMISS), this ground is deemed waived and the court
can take cognizance of the case and try it.
In this case, seven years is hardly within "the proper
time".
EXCEPTIONS TO EXHAUSTION:
1. Doctrine of Qualified Political Agency (Alter Ego)
*When the Undersecretary of the Secretary of Natural
Resources denied the motion for reconsideration, he was
acting on behalf of the Sec. of Natural Resources;
accordingly, administrative remedies had been
exhausted.
Notes: Where Appeal to the President had been made
and before the President could act on the appeal, the
same was withdrawn, there was deemed to have been
failure to exhaust remedies, besides, by appealing to the
Pres. The party recognized palin, speedy and adequate
remedy still open to him in the ordinary course of law &
thus his special civil action must fail.
Notes: Decision of DAR Secretary cannot be questioned
before the DARAB since exhaustion is improper in this
case since RA 6657 specifically provides that decisions
and awards of DAR be brought to the Court of Appeals.
2. Where Administrative Remedy is fruitless
3. Where there is estoppel on the part of administrative
agency
4. Where issue is purely a legal question
In Castro v Gloria, Aug 20, 2001: Petitioner was
disputing the admin finding of guilt since he claimed that
penalty for offense is not dismissal from service. As
such, the issue pertains is a pure question of law.
5. Where Administrative action is patently illegal
amounting to lack or excess of jurisdiction.
6. Where there is unreasonable delay or official inaction.
7. Where there is irreparable injury or threat, unless,
judicial recourse is immediately made.
8. In land cases, where subject matter is private land.
9. Where law does not make exhaustion a condition
precedent to judicial recourse.
10. Where observance of doctrine will result in
nullification of claim
11. Special reasons demanding immediate court action
Apex v DAR , April 10,2003: PARO did not take
immediate action and it was already 1 year, as such
exhaustion must be disregarded when i)circumstances
indicating urgency of judicial intervention ii) admin
action is patently illegal and amounts to excess of
jurisdiction
12. Due process is clearly violated or when rule does not
provide for speedy, plain and adequate remedy
Civil action for damages is personal to the plaintiff; it
can proceed independently of administrative action
COROLLARY PRINCIPLES TO EXHAUSTION:
Primary Jurisdiction or PRIOR Resort
* Where there is competence or jurisdiction vested upon
an administrative body to act upon a matter, no resort
to the courts may be made before such administrative
body shall have acted upon the matter.
* Courts will not intervene if the question to be resolved
is one which requires the expertise of the Admin
Agencies (AA) and the legislative intent on the matter is
to have uniformity in ruling.
As such after decision of such executive body, the
ADMINISTRATIVE REMEDY OF APPEAL TO THE CIVIL
SERVICE OR SECRETARY AS STATED BY LAW (and not
to the RTC or CA) would still be available.
EXCEPTIONS:
1. Not within competence of the AA
2. Issue does not require technical expertise of AA
Criteria for the application of the Doctrine as laid down
in the Texas and Pacific v. Abilene Case:
(1) There is concurrent jurisdiction
(2) The agency has the necessary expertise to
competently rule on the issues (technical expertise is
crucial to resolution)
(3) In line with the legislative intent /objectives of the
law (e.g. uniform rates)
If case requires expertise, specialized skills and
knowledge of AA because technical matters or intricate
questions of fact are involved, then relief must first be
obtained in an administrative proceeding before a
remedy will be supplied by the courts even though the
matter is within the proper jurisdiction of the court.
Application of the doctrine does not call for the dismissal
of the case but only its SUSPENSION till after the
matters within the competence of the AA are threshed
out and determined. (Industrial Enterprises v. CA)
Doctrine of Finality of Administrative Action
No resort to the courts will be allowed unless the
administrative action has been completed and there is
nothing left to be done in the administrative structure.
STANDING TO CHALLENGE
LEGAL STANDING means a personal and substantial
interest in the case such that the party has sustained or
will sustain direct injury as a result of the gov’t. Act that
is being challenged. (Joya v. PCGG; :Lozada v. Comelec;
Kilosbayan v. Guingona)
Types of Standing:
1. Provided by law
2. Taxpayers' suit
3. Class suit
4. Suit as members of the Congress
If the law specifies in an exclusive manner as to who
may appeal – those who are not included have no
personality to sue. (Ursal v VTA; Acting Collector v. CTA)
One having no right or interest to protect cannot invoke
the jurisdiction of the court as party-plaintiff in an
action. (Joya v. PCGG)
The issue of standing is a procedural technicality which
may be waived if the issue of is of transcendental
importance to the public. (Kilosbayan v. Guingona)
The Court differentiated concepts of “standing” and “real
party-in-interest” and held that Kilosbayan is not a real
party in interest because it was not a party to the
contract. (Kilosbayan v. Morato)
Tests of standing as laid down in Assn. of Data
Processing Service Organization v. Camp
1) Test of injury in fact (economic injury)
2) Whether or not arguably in the zone of interest
sought to be protected by the statute
Three elements of the constitutional minimum
requirements of standing:
(1) The plaintiff must have suffered an “injury in fact” –
an invasion of a legally-protected interest which is
(a) Concrete and particularized and
(b) “Actual or imminent, not conjectural or hypothetical”
(2) There must be a causal connection between the
injury and the conduct complained of – the injury has to
be “fairly traceable to the challenged action of the
defendant, and not the result of the independent action
of some third party not before the court.”
(3) It must be likely as opposed to merely “speculative”,
that the injury will be redressed by a favorable decision.
(Lujan v. Defenders of Wildlife)
RIPENESS
This is sought after whenever the AA exercises QUASI-
LEGISLATIVE FUNCTION, which means that immediate
recourse to the courts can be availed of.
Purpose of the Doctrine of Ripeness (According to
Abbott Laboratories v. Gardner):
1. To prevent courts, thru avoidance of premature
adjudication, from entangling themselves in abstract
disagreements over administrative policies
2. To protect agencies from judicial interference until
decision has been formalized and effect felt in a
concrete way or the imminence of the effect is
demonstrable
2-fold test (must concur):
1. Fitness of the issue for judicial decision (question of
law, not policy-making)
2. Hardship to the parties of withholding such court
action
General ripeness consideration tests according to
National Automatic Laundry and Cleaning Council v.
Shultz:
1. WON there is congressional intent negating judicial
review
2. Possibility of courts entangling themselves in abstract
disagreement over administrative policies due to
premature adjudication
3. Fitness of issue for judicial determination and
hardship to parties of withholding consideration
MODES OF JUDICIAL REVIEW
JUDICIAL REVIEW
WON it is available is the threshold issue
=> If not available - end of litigation
=> If available - determine the specific mode of review
which must be invoked
Provisions of Law
Art. 9A, Sec 7, Constitution:
*Decisions of the COA, COMELEC, and CSC may be
brought to the SC on CERTIORARI within 30 days from
receipt of copy of decision
* The constitution uses the word may, meaning review
is not mandatory by only discretionary.
BP 129
* Authority of CA to review decisions of quasi-judicial
agencies is EXCLUSIVE (if such is listed in LAW OF SUCH
ADMIN BODY or if its CHARTER so indicates)
* If it is not listed, its decisions can be reviewed by the
RTC through the special civil action for certiorari under
Rule 65
Book VII, Section 25, Administrative Code of 1987
*Agency decisions shall be subject to judicial review in
accordance with this chapter and applicable laws. (par.
1)
WHO MAY SEEK JUDICIAL REVIEW:
* Any party aggrieved or adversely affected by an
agency decision. (par.2)
WHEN TO APPEAL:
* Within fifteen (15) days from receipt of a copy (par. 4)
HOW:
* File petition for review (par.4)
WHERE TO FILE:
* In the court specified by statute or, in the absence
thereof, in any court of competent jurisdiction in
accordance with the provisions on venue of the Rules of
Court. (par. 6)
* Petition for Review - Question of fact and law
* Must comply with:
=> The time period
=> Docket fees
=> Notice
SC Revised Administrative Circular 1-95 (Rule 43
1997 ROC)
* Grants CA with exclusive jurisdiction to review
decisions of 19 AAs (like CTA and CSC)
* Excludes the NLRC
* Listing not exclusive - ejusdem generis
* SC retains the special civil action for certiorari if there
is grave abuse of discretion amounting to lack or excess
of jurisdiction
* As to AAs exercising quasi-judicial functions, there is
an underlying power in the courts to scrutinize the acts
of agencies on questions of law and jurisdiction even
though no right of review is given by the statute.
Certiorari
Two Kinds of Certiorari
1. Simple or Ordinary (Rule 45) - Errors of
judgment; questions of law
2. Special Civil Action (Rule 65) - Errors of
jurisdiction;
- SC has original jurisdiction, concurrent with the RTC
* Purpose: to nullify or set aside the proceedings
Requisites:
1. a) Lack of jurisdiction or
b) Grave abuse of discretion amounting to lack or
excess of jurisdiction
2. There is no other plain, speedy, adequate remedy
3. Agency or tribunal is performing judicial or quasi-
judicial functions
Prohibition
Requisites:
1. Lack of jurisdiction or grave abuse of discretion
2. No other plain, speedy, or adequate remedy
3. Agency or tribunal is performing quasi-judicial and
ministerial functions
4. The act to be enjoined is yet to be performed
* Purpose
=> To stop or prohibit proceedings from going on
=> If proceedings are already finished - do not use
prohibition as by then it would be moot and academic
* Unlike certiorari, prohibition is more expansive as it
caters to quasi-judicial and purely ministerial duties
Mandamus
Requisites:
1. Prove clear and controlling right - not questionable
and not subject to dispute
2. Duty of the person to whom mandamus is directed is
MINISTERIAL, not discretionary
3. No plain, speedy, adequate remedy under the
ordinary course of law
*Is it possible to ask for a writ of mandamus against an
agency exercising discretionary powers?
=> Yes, when the writ of mandamus is in order to
compel the agency to exercise or use its discretion but it
will not prescribe the action to be taken by the
board/officer (Policarpio v. Phil Veterans Board)
=> If there is a capricious exercise of such discretion,
the remedy is CERTIORARI
WHEN IS MANDAMUS NOT PROPER:
1. To control or review the exercise of discretion of a
public officer (Blanco v. Board of Examiners)
2. To compel issuance of visa (Ng Gioc Liu v. Secretary
of Foreign Affairs)
3. To enforce contractual obligations (Province of
Pangasinan v. Reparations Commission)
4. Where there is no clear legal right as the source of
the "right" is not authorized (Cruz v. CA)
5. To compel tax assessment not due (Meralco Securities
v. Savellano)
Declaratory Relief
Function:
1. Interested under a deed, will, contract or written
instrument affected by any statute
2. To determine any question of construction or validity
arising from and for a declaration of his rights, duties
thereunder
* Can only be availed of before the breach
Requisites of Declaratory Relief
1. Existence of a justiciable controversy - capable of
determination
2. Between persons whose interests are adverse
3. Party seeking declaratory relief must have a legal
interest in the controversy
4. Issue is ripe for adjudication
* Citizenship cannot be declared in an action for
declaratory relief. (Azajar v. Ardalles)
* DR must precede breach so as to avoid multiplicity of
suits. (De Borja v. Villadolid)
* DR not available to a taxpayer who questions his tax
liability. (National Dental Supply v. Meer)
 Habeas Corpus
* In what cases will habeas corpus pertinent in
administrative cases?
=> Deportation cases
* It is a plain, speedy, adequate remedy to secure
release of persons under custody
* Success of petition depends on the legality of the
detention
* WHC would still issue even if the person is already
released if the release is conditional such as when there
is surveillance, there is limitation in the place where he
can go, etc.
* Detention is legal if it is reasonable (Mejoff v. Director
of Prisons)
* Bail renders a WHC moot and academic as the bail
bond gives him liberty. (Co v. Deporation Board; Lucien
Tran Van Nghia v. Liwag) Note though that in Crim Pro
we were taught that WHC may still issue despite the
granting of bail when there is still effective detention.
Injunction as a Provisional Remedy
Purpose:
1. To prevent the commission of certain acts complained
of
2. Commission or continuance of act complained of
would probably work injustice to him
3. Defendant is doing, threatens or about to do an act in
violation of petitioner’s rights which may render the
judgment ineffective
* If the plaintiff wins the main case, injunction becomes
permanent, if he does not, injunction is dissolved
* Ancillary remedy to principal action while main action
is pending
* To preserve rights while main action is pending
* Who issues the injunction
=> Superior court to an inferior court
* The SEC and the RTC are co-equal (Pineda v. Lantin;
Phil Pacific Fishing Co. v. Luna)
Preliminary Mandatory Injunction
* Commands an act to be done for the purpose of
restoring a pre-existing right and to prevent damage
* Would be issued if:
1. Right is clear
2. Considerations of relative inconvenience strongly in
favor of petitioner
3. There appears to be a willful invasion of petitioner's
right and the injury is a continuing one
4. PMI will not create a new relation between the parties
Suit for Damages as an Indirect Method
* Even if damage ensues because of acts in excess of
authority, damages will not be awarded if such act was
(1) done in good faith and (2) with color of title.
(Philippine Racing Club v. Bonifacio)
Notes: COLLATERAL: Relief from administrative action
sought in a proceeding the primary purpose of which is
some relief other than the setting aside of the judgment,
although an attack on the judgment may be incidentally
involved (ex: A damage suit against the administrative
officials)
EXTENT OF JUDICIAL REVIEW
Law - Fact distinction
* Important because of substantial evidence rule (i.e.,
AA decision, if supported by substantial evidence, will
not be reviewed by the court)
* Questions of Law - Always reviewable
* Question of Fact - reviewable only when not supported
by substantial evidence (findings of fact, if supported by
substantial evidence, is conclusive on the court)
* A conclusion drawn from series of facts is a question
of law which may be reviewed (Dauan v. Secretary)
Question of Law
* Examples are issue of constitutionality, validity of
agency action, and correctness of the interpretation of
law
* Other examples:
1. Question of citizenship (Ortua v. Vicente Singson)
2. WON there was a landlord- tenant relationship (Mejia
v. Mapa)
3. Questions arising from proper interpretation of the
Articles of Incorporation (Japanese War Notes Claimants
v. SEC)
4. Existence of an ER-EE relationship (Ysmael v. CIR)
Question of Fact
* GEN RULE: Findings of fact of AA, if supported by
substantial evidence, is conclusive on the courts
* EXCEPTIONS:
1. Not supported by evidence presented
2. Not supported by substantial evidence
* EXAMPLES:
1. WON thing exists
2. WON event took place
3. Which of 2 conflicting versions is correct
* SC may not accept AA’s findings of fact when the
decision was rendered by an almost evenly divided court
and that the decision was precisely on the facts as borne
out by the evidence. (Gonzales v. Victory Labor Union)
* When there is grave abuse of discretion amounting to
lack of jurisdiction, there is a justification for the courts
to set aside the administrative determination reached.
(Banco Filipino v. Monetary Board)
* There is substantial evidence when there is a
semblance of reasonableness in your conclusion
* Substantial evidence does not require you to be sure
but merely REASONABLE
* Court must review the ENTIRE records. Substantial
evidence must be taken as a whole - should not be
selective in reviewing the case. (Universal Camera
Corporation v. NLRB)
Questions of Discretion
* If there is GAD, subject to certiorari
* GAD - Capricious, whimsical, arbitrary, despotic
ENFORCEMENT OF AGENCY ACTION
How are agency actions going to be enforced?
* Examine the pertinent provisions of the enabling
statute
* Examples: issue permits, fix wages, summary actions
without notice and hearing, ex parte order to cease and
desist
RES JUDICATA
Does res judicata apply to administrative agencies?
* Yes, if it is exercising its QUASI-JUDICIAL FUNCTIONS
(Ipekdjian Merchandising v. CTA)
* Res judicata is a judicial concept.
* It does not apply if the exercise is purely
administrative
* Res judicata may not be invoked in purely
administrative proceedings. (Nasipit Lumber v. NLRC)
* Decisions and orders of AAs rendered pursuant to their
quasi-judicial authority have, upon their finality, the
force and effect of a final judgment within the purview
of the doctrine of res judicata. (Dulay v. Minister of
Natural Resources)
Requisites of res judicata:
1. Previous final judgment
2. Rendered by court with jurisdiction
3. Must be a judgment on the merits
4. Identity of parties, subject matter and cause of action
WRITS OF EXECUTION

GENERAL RULE:

Agencies performing quasi-judicial functions have the

implied power to issue writs of execution.

EXCEPTION:

If the enabling law expressly provides otherwise

* If the law is silent, presume that the agency has the

power to enforce its decisions emanating from its quasi-
judicial powers. (Apolega v. Hizon)

* If the writ of execution is refused to be implemented,

the proper remedy is MANDAMUS because by virtue of
the writ of execution, the duty has become ministerial.
(Vda. de Corpuz v. the Commanding General of the
Philippine Army)

* CFI and the NLRC are co-equal such that an order

even if not directed against the NLRC when it's effect
would be to freeze it's executory decision should be
nullified. (Ambrosio v. Salvador)

* The authority to decide cases (quasi-judicial powers)

should normally and logically begin to include the grant
of authority to enforce and execute the judgment it thus
renders, unless the law otherwise provides. (GSIS v. CA)

Brandies Assimilation of Facts:

Finding of fact upon the question of law, the court will,

in order to resolve the question of law, examine the
factual setting including the evidence adduced thereto.
NATIONAL GOVERNMENT
(2010 EDITION)
A public office is the right, authority and duty created
and conferred by law, by which for a given period, either
fixed by law or enduring at the pleasure of the
appointing power, an individual is invested with some
portion of the sovereign functions of the government, to
be exercised by him for the benefit of the public.
Purpose and Nature
A public office is created to effect the end for which
government has been instituted which is the common
good; not profit, honor, or private interest of any
person, family or class of persons (63 A Am Jur 2d 667)
Nature:
(1) A public office is a public trust. (Art. XI, Sec. 1, 1987
Consti)
(2) It is a responsibility and not a right. (Morfe v.
Mutuc)
Elements
1. Must be created either by (a) the Constitution, (b) the
Legislature, or (c) a municipality or other body through
authority conferred by the Legislature (BY DELEGATION)
2. Must possess a delegation of a portion of the
sovereign power of government, to be exercised for the
benefit of the public;
3. The powers conferred and the duties discharged must
be defined, directly or impliedly by the Legislature or
through legislative authority;
4. The duties must be performed independently and
without control of a superior power other than the law;
Exception: If the duties are those of an inferior or
subordinate office, created or authorized by the
Legislature and by it placed under the general control of
a superior office or body;
5. Must have some permanency and continuity
Note: This is not to be applied literally. The Board of
Canvassers is a public office, yet its duties are only for a
limited period of time.
Public Office v. Public Employment
Public employment is broader than public office. All
public office is public employment, but not all public
employment is a public office.
Generally, a position is a public office when it is created
by law, with duties cast upon the incumbent which
involve the exercise of some portion of the sovereign
power, and in the performance of which the public is
concerned. Public employment is a position which lacks
one or more of the foregoing elements.
No vested right to public office
GENERAL RULE: A public office, being a mere
privilege given by the state, does not vest any rights in
the holder of the office. This rule applies when the law
is clear.
EXCEPTION: When the law is vague, the person’s
holding of the office is protected and he should not be
deprived of his office.
*It is a fundamental principle that a public office cannot
be regarded as the property of the incumbent and that a
public office is not a public contract. Nonetheless, Act.
No. 3107 should be given a prospective effect in the
absence of legislative intent to the contrary. Although
there is a vested right to an office, which may not be
disturbed by legislation, yet the incumbent has, in a
sense, a right to his office. If that right is to be taken
away by statute, the terms should be clear. (Segovia v.
Noel)
The Supreme Court held that Agcaoili had not ceased to
be a justice of the peace by operation of Act No. 3107.
The Segovia ruling was reiterated, i.e. Act No. 3107
should be given prospective effect only, as there was no
express statement making the law applicable
retroactively. (Agcaoili v. Suguitan)
Public Office v. Public Contract
a. Public Office
b. Public Contract
Creation
a. Incident of sovereignty
b. Originates from will of contracting parties
Object
a. Carrying out of sovereign as well as governmental
functions affecting even persons not bound by the
contract
b. Obligations imposed only upon the persons who
entered into the contract
Subject Matter
a. Tenure, duration, continuity
b. Limited duration
Scope
a. Duties that are generally continuing and permanent
b. Duties are very specific to the contract
Where duties are defined
a. The law
b. Contract
PUBLIC OFFICE NOT PROPERTY
A public office is not the property of the public officer
within the provision of the Constitution against
deprivation of property without due process of law or
within an agreement in a treaty not to impair the
property or rights of private individuals.
Exceptions:
(1) In quo warranto proceedings relating to the
question as to which of 2 persons is entitled to a public
office
(2) In an action for recovery of compensation accruing
by virtue of the public office
Due process is violated only if an office is considered
property. However, a public office is not property within
the constitutional guaranties of due process. It is a
public trust or agency. As public officers are mere
agents and not rulers of the people, no man has a
proprietary or contractual right to an office. Every
officer accepts office pursuant to law and holds office as
a trust for the people whom he represents. (Cornejo v.
Gabriel)
Public office being personal, the death of a public officer
terminates his right to occupy the contested office and
extinguishes his counterclaim for damages. His widow
and/or heirs cannot be substituted in the counterclaim
suit. ( Abeja v. Tanada)
Scope and Extent of Power of Legislature
GENERAL RULE: The creation of a public office is
primarily a legislative function.
Exceptions:
(1) Where the offices are created by Constitution;
(2) Where the Legislature delegates such power.
Delegation of power to create Public Office
Q: What is the effect where an office is created
pursuant to illegally delegated powers?
A: The office would have no existence.
The authority given to the President to "reorganize
within one year the different executive departments,
bureaus and other instrumentalities of the Government"
in order to promote efficiency in the public service is
limited in scope and cannot be extended to other
matters not embraced therein. Therefore, an executive
order depriving the Courts of First Instance of
jurisdiction over cases involving recovery of taxes
illegally collected is null and void, as Congress alone has
the "power to define, prescribe and apportion the
jurisdiction of the various courts."
Methods of Organizing Office
(1) Single-head: One head assisted by subordinates.
Swifter decision and actions but may sometimes be
hastily made.
(2) Board System: Collegial body in formulating
polices and implementing programs. Mature studies and
deliberations but may be slow in responding to issues
and problems.
MODIFICATION AND ABOLITION
GENERAL RULE: The power to create an office
includes the power to modify or abolish it. (i.e., this is
generally a legislative function)
EXCEPTIONS:
(1) Where the Constitution prohibits such modification /
abolition;
(2) Where the Constitution gives the people the power
to modify or abolish the office;
The legislative power to create a court carries with it the
power to abolish it. When the court is abolished, any
unexpired term is abolished also. (Ocampo v. Secretary
of Justice)
RULE: When a public official voluntarily accepts an
appointment to an office newly created by law -- which
new office is incompatible with the former -- he will be
considered to have abandoned his former office.
Exception: When the non-acceptance of the new
appointment would affect public interest and the public
official is thereby constrained to accept.
Estoppel to deny existence of office
Q: When is a public officer estopped from denying that
he has occupied a public office?
A: When he has acted as a public officer, esp. where he
has received public monies by virtue of his office.
PUBLIC OFFICER
A public officer is one who performs public functions /
duties of government by virtue of direct provision of law,
popular election, or appointment by competent
authority. His duties involve the exercise of discretion in
the performance of the functions of the government,
and are not of a merely clerical or manual nature. (See
Sec. 2 (14), E.O. 292)
Note: For the purpose of applying the provisions of the
Revised Penal Code, employees, agents, or subordinate
officials, of any rank or class, who perform public duties
in the government or in any of its branches, shall be
deemed as public officers.
Illustrations:
In the case of Maniego v. People, a laborer who was in
charge of issuing summons and subpoenas for traffic
violations in a judge's sala was convicted for bribery
under RPC 203. The court held that even temporary
performance of public functions is sufficient to constitute
a person as a public official.
In the case of People v. Paloma, a sorter and filer of
money orders in the Auditor's Office of the Bureau of
Posts was convicted for infidelity in the custody of
documents. The court pointed out that the sorting and
filing of money orders in the Bureau of Posts is obviously
a public function or duty.
Who are not considered public officers?
Special policemen salaried by a private entity and
patrolling only the premises of such private entity
(Manila Terminal Co. v. CIR);
Concession forest guards (Martha Lumber Mill v.
Lagradante);
Company cashier of a private corporation owned by the
government (Tanchoco v. GSIS)
May a person be compelled to accept a public
office?
GENERAL RULE: NO.
EXCEPTIONS:
(1) When citizens are required, under conditions
provided by law, to render personal military or civil
service (Sec. 4, Art. II, 1987 Const.);
(2) When a person who, having been elected by popular
election to a public office, refuses without legal motive
to be sworn in or to discharge the duties of said office
(Art. 234, RPC)
Note: The penalty shall be either arresto mayor or a
fine not exceeding P 1,000.00, or both)
No presumption of power
No presumption that they are empowered to act. There
must be a delegation of such authority, either express or
implied. In the absence of a valid grant, they are devoid
of power. (Villegas v. Subido)
DE FACTO OFFICERS
De Facto Doctrine
It is the principle which holds that a person, who, by the
proper authority, is admitted and sworn into office is
deemed to be rightfully in such office until:
(a) By judicial declaration in a proper proceeding he is
ousted therefrom; or
(b) His admission thereto is declared void.
Purpose for the doctrine:
It is to ensure the orderly functioning of government.
The public cannot afford to check the validity of the
officer's title each time they transact with him.
De Facto Officer defined
Q: When is a person a de facto officer?
A: Where the duties of the office are exercised under
any of the following circumstances:
Without a known appointment or election, but under
such circumstances of reputation or acquiescence as
were calculated to induce people, without inquiry, to
submit to or invoke his action, supposing him to the be
the officer he assumed to be; or
Under color of a known and valid appointment or (4) Must have qualified himself to perform the duties of
election, but where the officer has failed to conform to such office according to the mode prescribed by law.
some precedent requirement or condition (e.g., taking
an oath or giving a bond); Requisites: (De Facto)

(1) De jure office;

Under color of a known election or appointment, void
because: (2) Color of right or general acquiescence by the public;

-The officer was not eligible; (3) Actual physical possession of the office in good faith

-There was a want of power in the electing or appointing Basis of Authority

body;

a. Right: he has the lawful right / title to the office

-There was a defect or irregularity in its exercise;
Such ineligibility, want of power, or defect being
unknown to the public.
b. Reputation: Has the possession and performs the
duties under color of right, without being technically
qualified in all points of law to act

How ousted
Under color of an election or an appointment by or
pursuant to a public, unconstitutional law, before the a. Cannot be ousted.
same is adjudged to be such.
b. Only by a direct proceeding (quo warranto); not
Notes: Here, what is unconstitutional is not the act collaterally
creating the office, but the act by which the officer is
appointed to an office legally existing. (Norton v.
Validity of official acts
County of Shelby)

a. Valid, subject to exceptions (e.g., they were done

Elements of a De Facto Officership
beyond the scope of his authority, etc.)

(1) De jure office

b. Valid as to the public until such time as his title to the
office is adjudged insufficient.
(2) Color of right or general acquiescence by the public;

(3) Actual physical possession of the office in good faith Rule on Compensation

Notes: This is not absolutely true. An intruder / a. Entitled to compensation as a matter of right;
usurper may ripen into a de facto officer.
* The principle of "no work, no pay" is not applicable to
Officer De Jure v. Officer De Facto him.

a. De Jure b. Entitled to receive compensation only during the time

when no de jure officer is declared;

b. De Facto
*He is paid only for actual services rendered by him.

Requisites: (De Jure)

(1) Existence of a de jure office;

(2) Must possess the legal qualifications for the office in

question;

(3) Must be lawfully chosen to such office;

 Officer De Facto v. Intruder
a. De Facto
b. Intruder
Nature
a. Officer under any of the 4 circumstances discussed
under Part II (above).
b. One who takes possession of an office and
undertakes to act officially without any authority, either
actual or apparent
Basis of Authority
a. Color of right or title to office
b. None. He has neither lawful title nor color of right or
title to office.
Validity of "official" acts
a. Valid as to the public until such time as his title to the
office is adjudged insufficient
b. Absolutely void; they can be impeached at any time in
any proceeding (unless and until he continues to act for
so long a time as to afford a presumption of his right to
act)
Rule on compensation
a. Entitled to receive compensation only during the time
when no de jure officer is declared;
*He is paid only for actual services rendered by him.
b. Not entitled to compensation at all.
Q: Can an intruder / usurper ripen into a de facto
officer?
A: Yes. With the passage of time, a presumption may
be created in the minds of the public that the intruder
has a right to act as a public officer.
Q: Is good faith a factor in the ripening of intruder
status into de facto status?
A: Yes. HOWEVER, it must be noted that the good faith
must be on the part of the public; not on the part of the
intruder.
Examples of De Facto Officers
A judge who continued to exercise his duties after his
appointment was disapproved by the CA according to a
newspaper report, but before receiving the official
notification regarding the rejection of his appointment
(Regala v. Judge of CFI);
A lawyer instructed by the Acting Provincial Governor to
file an information for homicide, where the latter had no
authority to designate him as assistant fiscal, and where
the DOJ had not authorized him to act as such (People
v. Penesa);
A third-ranking councilor who is designated to act as
mayor by an officer other than the proper appointing
authority prescribed by law, and lacking the consent of
the Provincial Board (Codilla v. Martinez)
Examples of those not considered as De Facto
Officers
A judge who has accepted an appointment as finance
secretary and yet renders a decision after having
accepted such appointment (Luna v. Rodriguez);
A judge whose position has already been abolished by
law, and yet promulgates a decision in a criminal case
after the abolition and over the objection of the fiscal.
Legal Effect of Acts of De Facto Officers
As regards the officers themselves
GENERAL RULE: A party suing or defending in his
own right as a public officer must show that he is an
officer de jure. It is not sufficient that he be merely a
de facto officer.
As regards the public and third persons
GENERAL RULE: The acts of a de facto officer
are valid as to third persons and the public until his title
to office is adjudged insufficient.
*Official Acts of De Facto Officers not subject to
collateral attack
RULE: The title of a de facto officer and the validity of
his acts cannot be collaterally questioned in proceedings
to which he is not a party, or which were not instituted
to determine the very question.
REMEDY: Quo warranto proceeding
Who may file:
The person who claims to be entitled to the office;
The Republic of the Philippines, represented by the
Solicitor-General; or a public prosecutor
In this case, there were four (4) petitioners seeking to
oust six (6) Board Members. The Court held that this
could not be done unless all 4 of them were entitled to
the offices of the 6. (Nueno v. Angeles)
Liabilities of De Facto Officers
The liability of a de facto officer is generally held to be
the same degree of accountability for official acts as that
of a de jure officer.
The de facto officer may be liable for all penalties
imposed by law for any of the following acts:
-Usurping or unlawfully holding office;
-Exercising the functions of public office without lawful
right;
-Not being qualified for the public office as required by
law.
*The de facto officer cannot excuse his responsibility for
crimes committed in his official capacity by asserting his
de facto status.
ELIGIBILITY AND QUALIFICATIONS
Eligibility which is the term usually used in reference to
the Civil Service Law, refers to the endowment /
requirement / accomplishment that fits one for a public
office.
Qualification generally refers to the endowment / act
which a person must do before he can occupy a public
office.
Power to Prescribe Qualifications
GENERAL RULE: Congress is empowered to prescribe
the qualifications for holding public office, subject to the
following restrictions:
Congress cannot exceed its constitutional powers;
Congress cannot impose conditions of eligibility
inconsistent with constitutional provisions;
The qualification must be germane to the position
("reasonable relation" rule);
Congress cannot prescribe qualifications so detailed as
to practically amount to making an appointment.
(Legislative appointments are unconstitutional and
therefore void for being a usurpation of executive
power.);
Where the Constitution establishes specific eligibility
requirements for a particular constitutional office, the
constitutional criteria are exclusive, and Congress cannot
add to them except if the Constitution expressly or
impliedly gives the power to set qualifications.
Q: What legislative enactments are tantamount to
legislative appointments?
Extensions of the terms of office of the incumbents;
The People's Court Act, which provided that the
President could designate Judges of First Instance,
Judges-at-large of First Instance or Cadastral Judges to
sit as substitute Justices of the Supreme Court in
treason cases without them necessarily having to
possess the required constitutional qualifications of a
regular Supreme Court Justice. (Vargas v. Rilloraza);
A proviso which limits the choices of the appointing
authority to only one eligible, e.g. the incumbent Mayor
of Olongapo City (Flores v. Drilon);
A legislative enactment abolishing a particular office and
providing for the automatic transfer of the incumbent
officer to a new office created (contemplated in
Manalang v. Quitoriano);
A provision that impliedly prescribes inclusion in a list
submitted by the Executive Council of the Phil. Medical
Association as one of the qualifications for appointment;
and which confines the selection of the members of the
Board of Medical Examiners to the 12 persons included
in the list (Cuyegkeng v. Cruz) ;
Congress cannot either appoint a public officer or
impose upon the President the duty to appoint any
particular person to an office. The appointing power is
the exclusive prerogative of the President, upon
which no limitations may be imposed by Congress,
except those resulting from (Manalang v. Quitoriano):
The need of securing the concurrence of the
Commission on Appointments; and
The exercise of the limited legislative power to prescribe
the qualifications to a given appointive office.
The power of appointment vested in the President by
the Constitution connotes necessarily a reasonable
measure of freedom, latitude, or discretion in the
exercise of the power to choose appointees. (Cuyegkeng
v. Cruz)
Where only one can qualify for the posts in question, the
President is precluded from exercising his discretion to
choose whom to appoint. Such supposed power of
appointment, sans the essential element of choice, is no
power at all and goes against the very nature itself of
appointment. (Flores v. Drilon) * 35 years old on day of election

Time of Possession of Qualifications * Able to read and write

Q: When must the qualifications be possessed? * Registered voter

Where the time is specified by the Constitution or law at * Resident of the Philippines for not less than two years
the time specified immediately preceding Election Day

Where the Constitution or law is silent: c) Congressmen (Sec. 6, Art. VI, Constitution)

There are 2 views: * Natural-born citizen

(1) Qualification must be at the time of commencement * 25 years old on day of election
of term or induction into office;

* Able to read and write

(2) Qualification / eligibility must exist at the time of the
election or appointment
* Registered voter in district in which he shall be elected

* Eligibility is a continuing nature, and must exist

throughout the holding of the public office. Once the * Resident thereof for not less than one year
qualifications are lost, then the public officer forfeits the immediately preceding Election Day
office.
d) Supreme Court Justice
Knowledge of ineligibility of a candidate and failure to
question such ineligibility before or during the election is
not a bar to questioning such eligibility after such * Natural born citizen
ineligible candidate has won and been proclaimed.
Estoppel will not apply in such a case. (Castaneda v.
* At least 40 years old
Yap)

* 15 years or more a judge or engaged in law practice

The citizenship requirement must be met only on
Election Day. While the Local Government Code
requires one year residency immediately preceding * Of proven CIPI (competence, integrity, probity and
Election Day and the prescribed age on Election Day, no independence)
date is specified for citizenship. The purpose of the
citizenship requirement is to ensure leaders owing
allegiance to no other country. Such purpose is not e) Civil Service Commissioners (Sec. 1 [1], Art.
thwarted, but instead achieved by construing the IXB. Constitution)
requirement to apply at time of proclamation and at the
start of the term. (Frivaldo v. COMELEC)
* Natural-born citizen

QUALIFICATIONS:
* 35 years old at time of appointment

a) President (Sec. 2, Art. VI, Constitution) Vice

President (Sec. 3, Art. VII, Constitution) * Proven capacity for public administration

* Natural-born citizen * Not a candidate for any elective position in elections

immediately preceding appointment

* 40 years old on day of election

f) COMELEC Comm. (Sec. 1[1], Art. IXC)

* Resident of the Philippines for at least 10 yrs.

immediately preceding Election Day * Natural-born citizen
b) Senator (Sec. 3, Art. VI, Constitution)

* 35 years old at time of appointment

* Natural-born citizen
* College degree holder Distinguish between Designation and
Appointment.

* Not a candidate for elective position in election

immediately preceding appointment a. Designation
b. Appointment

* Chairman and majority should be members of the bar

who have been engaged in the practice of law for at Definition
least 10 years (See Cayetano v. Monsod)

a. Imposition of additional duties upon an existing office

g) COA Commissioners

b. Selection of an individual to occupy a certain public

* Natural-born citizen office by one authorized by law to make such selection

* 35 years old at time of appointment Extent of Powers

* CPA with >10 year of auditing experience or a. Limited

b. Comprehensive
* Bar member engaged in practice of law for at least 10
years
Security of Tenure

* Not have been candidates for elective position in

elections immediately preceding appointment a. No.

b. Yes.
Cayetano v. Monsod Practice of law means any
activity, in or out of court, which requires the application
of law, legal procedure, knowledge, training and When deemed abandonment of prior office
experience. Generally, to practice law is to give notice
or render any kind of service which requires the use in
any degree of legal knowledge or skill. a. Assumption of a designated position is not deemed
abandonment of the 1st position

Aquino v. COMELEC: Residency of not less than 1 year

prior to the elections for the position of Congressman. b. Assumption of a 2nd appointive position is usually
In election law, residence refers to domicile, i.e. the deemed abandonment of the first office.
place where a party actually or constructively has his
permanent home, where he intends to return. To
successfully effect a change of domicile, the candidate FORMATION OF OFFICIAL RELATION
must prove an actual removal or an actual change of
Modes of Commencing Official Relation:
domicile. Here, it was held that leasing a condominium
unit in the district was not to acquire a new residence or
domicile but only to qualify as a candidate. Election

Appointment
Marcos v. COMELEC: Domicile, which includes the twin
elements of actual habitual residence, and animus
manendi, the intention of remaining there permanently. Others:
It was held that domicile of origin is not easily lost, and
that in the absence of clear and positive proof of a
successful change of domicile, the domicile of origin (i) Succession by operation of law;
should be deemed to continue.

(ii) Direct provision of law, (e.g. ex-oficio

Religious Test or Qualification officers)

No religious test shall be required for the exercise of civil

or political rights. (Art. III, Sec. 5, 1987 Constitution) Nature of Appointing Power

The power to appoint is intrinsically an executive act

involving the exercise of discretion. (Concepcion v.
Paredes)
The power and prerogative to a vacant position in the
civil service is lodged with the appointing authority.
Constitutional Provisions
Q: Who can the President nominate and appoint with
the consent of the Commission on Appointments?
A: Heads of the executive departments (Art. VII, Sec.
16, 1987 Const.);
Ambassadors (ibid);
Other public ministers and consuls (ibid);
Officers of the armed forces from the rank or colonel or
naval captain (ibid);
Other officers whose appointments are vested in him by
the Constitution (ibid), including Constitutional
Commissioners (Art. IX-B, Sec. 1 (2) for CSC; Art. IX-C,
Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA).
Q: Who can the President appoint without the need for
CA approval?
A: All other officers of the government whose
appointments are not otherwise provided for by law;
*Those whom he may be authorized by law to appoint;
Members of the Supreme Court;
Note: To be appointed from a list of at least 3
nominees prepared by the Judicial and Bar Council (Art.
VIII, Sec. 9, 1987 Const.)
Judges of Lower Courts;
Note: To be appointed from a list of at least 3
nominees prepared by the Judicial and Bar Council (Art.
VIII, Sec. 9, 1987 Const.)
Ombudsman and his deputies
Note: To be appointed from a list of at least 6
nominees prepared by the Judicial and Bar Council, and
from a list of 3 nominees for every vacancy thereafter
(Art. XI, Sec. 9, 1987 Const.)
Q: Does the President have the power to make
appointments when Congress is in recess?
A: Yes. However, such appointments shall be effective
only until:
(1) Disapproval by the Commission on Appointments; or
(2) The next adjournment of the Congress (Sec. 16, Art.
VII, 1987 Const.)
Q: What is the effectivity of appointments extended by
an Acting President?
A: Such appointments shall remain effective unless
revoked by the elected President within 90 days from his
assumption or reassumption of office. (Sec. 14, Art. VII,
1987 Const.)
QUALIFICATION STANDARDS AND
REQUIREMENTS UNDER THE CIVIL SERVICE LAW
Qualification Standards:
Express the minimum requirements for a class of
positions in terms of education, training and experience,
civil service eligibility, physical fitness, and other
qualities required for successful performance. (Sec. 22,
Book V, EO 292)
A statement of the minimum qualifications of a position
which shall include education, experience, training, civil
service eligibility, and physical characteristics and
personality traits required by the job. (Sec. 2, Rule IV,
Omnibus Rules)
With respect to a particular position, such qualification
standards shall serve as the basis for the determination
by the appointing authority of the degree of
qualifications of an officer or employee (ibid);
Shall be used as basis for civil service examinations for
positions in the career service, as guides in appointment
and other personnel actions, in the adjudication of
protested appointments, in determining training needs,
and as aid in the inspection and audit of the agencies'
personnel work programs (ibid);
Shall be administered in such manner as to continually
provide incentives to officers and employees towards
professional growth and foster the career system in the
government service (ibid);It shall be the responsibility of
the departments and agencies to establish, administer
and maintain the qualification standards on a continuing
basis as an incentive to career advancement. (Sec. 7,
Rule IV, Omnibus Rules)
Their establishment, administration, and maintenance
shall be the responsibility of the department / agency,
with the assistance and approval of the CSC and in
consultation with the Wage and Position Classification
Office (ibid);Whenever necessary, the CSC shall provide
technical assistance to departments and agencies in the
development of their qualification standards. (Sec. 5,
Rule IV, Omnibus Rules) Shall be established for all
positions in the 1st and 2nd levels (Sec. 1, Rule IV,
Omnibus Rules);
Political Qualifications for an Office
GENERAL RULE: Political qualifications are not
required for public office.
EXCEPTIONS:
Membership in the electoral tribunals of either the House
of Representatives or Senate (Art. VI, Sec. 17, 1987
Const.);
Party-list representation;
Commission on Appointments;
Vacancies in the Sanggunian (Sec. 45, Local Government
Code)
Property Qualifications
In the cases of Maquera v. Borra and Aurea v.
COMELEC, the Supreme Court struck down R.A. 4421
which required candidates for national, provincial, city
and municipal offices to post a surety bond equivalent to
the one-year salary or emoluments of the position to
which he is a candidate, which shall be forfeited in favor
of the govt. concerned if the candidate fails to obtain at
least 10% of the votes cast.
The Supreme Court held that property qualifications are
inconsistent with the nature and essence of the
Republican system ordained in our Constitution and the
principle of social justice underlying the same.
Aliens not eligible to public office
This is self-explanatory.
Effect of removal of qualifications during the term
Q: What happens if the qualification is lost which the
officer is holding office?
A: The officer must be terminated.
Effect of pardon upon the disqualification to hold
public office
GENERAL RULE: A pardon shall not work the
restoration of the right to hold public office. (Art. 36,
Revised Penal Code)
Exceptions:
(1) Where such right to hold public office is expressly
restored by the terms of the pardon (Art. 36, RPC);
(2) When a person is granted pardon because he did
not commit the offense imputed to him (Garcia v.
Chairman, COA)
Rules governing effects of pardon:
(1) A public official who has been convicted of a crime
but has been pardoned must secure a reappointment
before he / she can reassume his / her former position.
(Monsanto v. Factoran)
Note: Acquittal is the only ground for automatic
reinstatement of a public officer to his / her former
position.
(2) Pardon does not exempt the culprit from payment
of the civil indemnity imposed upon him / her by the
sentence. (Art. 36, par. 2, RPC)
(3) A convicted public official who has been pardoned is
not entitled to backpay and other emoluments due to
him during the period of his suspension pendente lite.
(Monsanto v. Factoran)
Discretion of appointing official
Discretion, if not plenary, at least sufficient, should thus
be granted to those entrusted with the responsibility of
administering the officers concerned, primarily the
department heads. They are in the most favorable
position to determine who can best fulfill the functions
of the office thus vacated. Unless, therefore, the law
speaks in the most mandatory and peremptory tone,
considering all the circumstances, there should be, as
there has been, full recognition of the wide scope of
such discretionary authority. (Reyes v. Abeleda)
Appointment is an essentially discretionary power and
must be performed by the officer in which it is vested
according to these best lights, the only condition being
that the appointee should possess the qualifications
required by law.
The only function of the CSC is to review the
appointment in the light of the requirements of the Civil
Service Law, and when it finds the appointee to be
qualified and all other legal requirements have been
otherwise satisfied, it has no choice but to attest to the
appointment. It cannot order the replacement of the
appointee simply because it considers another employee
to be better qualified.
To hold that the Civil Service Law requires that any
vacancy be filled by promotion, transfer, reinstatement,
reemployment, or certification in that order would be
tantamount to legislative appointment which is
repugnant to the Constitution. The requirement under
the Civil Service Law that the appointing power set forth
the reason for failing to appoint the officer next in rank
applies only in cases of promotion and not in cases
where the appointing power chooses to fill the vacancy
by transfer, reinstatement, reemployment or
certification, not necessarily in that order. (Pineda v.
Claudio)
The CSC is not empowered to change the nature of the
appointment extended by the appointing officer, its
authority being limited to approving or reviewing the
appointment in the light of the requirements of the Civil
Service Law. When the appointee is qualified and all the
legal requirements are satisfied, the CSC has no choice
but to attest to the appointment. (Luego v. CSC)
Appointment is a political question.
Where the palpable excess of authority or abuse of
discretion in refusing to issue promotional appointment
would lead to manifest injustice, mandamus will lie to
compel the appointing authority to issue said
appointments. (Gesolgon v. Lacson)
Effectivity of Appointment
Immediately upon its issuance by the appointing
authority. (Rule V, Sec. 10, Omnibus Rules).
WHEN APPOINTMENT BECOMES COMPLETE,
FINAL AND IRREVOCABLE
GENERAL RULE: An appointment, once made, is
irrevocable and not subject to reconsideration.
Qualification: Where the assent, confirmation, or
approval of some other officer or body is needed before
the appointment may be issue and be deemed complete.
Exceptions:
(1) When the appointment is an absolute nullity (Mitra
v. Subido);
(2) When there is fraud on the part of the appointee
(Mitra v. Subido);
(3) Midnight appointments
A completed appointment vests a legal right. It cannot
be taken away EXCEPT for cause, and with previous
notice and hearing (due process).
Midnight appointments
A President or Acting President is prohibited from
making appointments 2 months immediately before the
next presidential elections and up to the end of his term.
(Art. VII, Sec. 15, 1987 Const.)
Exception: Temporary appointments to executive
positions when continued vacancies therein will
prejudice public service or endanger public safety.
ASSUMPTION AND TERM OR TENURE OF OFFICE
Qualification to Office
Appointment and Qualification to Office
Distinguished
Appointment and qualification to office are separate and
distinct things. Appointment is the act of being
designated to a public office by the appointing authority.
Qualification is the act of signifying one's acceptance of
the appointive position. This generally consists of the
taking / subscribing / filing of an official oath, and in
certain cases, of the giving of an official bond, as
required by law.
No one can be compelled to accept an appointment.
The appointment to a government post involves several
steps: (1) the President nominates; (b) the Commission
on Appointments confirms the appointment; and (c) the
appointee accepts the appointment by his assumption of
office. The first 2 steps are mere offers to the post but
the last step rests solely with the appointee who may or
may not accept the appointment. (Lacson v. Romero)
A judge may not be made a judge of another district
without his consent. Appointment and qualification to
office are separate and distinct things. Appointment is
the sole act of the appointee. There is no power which
can compel a man to accept the office. (Borromeo v.
Mariano)
Effect of Failure to Qualify
Failure to qualify is deemed evidence of refusal of the
office.
It is a ground for removal:
If qualification is a condition precedent: Failure to qualify
ipso facto deemed rejection of the office
If not condition precedent: Failure is not ipso facto
rejection
Justifiable reasons for delay in qualifying include
sickness, accident, and other fortuitous events that
excuse delay
The Omnibus Election Code provides that the officer
must qualify (i.e., take his oath of office and assume
office) within 6 months from proclamation. Otherwise,
the position will be deemed vacant
Exception: If the non-assumption of office is due to a
cause beyond his control
Qualification is significant because it designates when
security of tenure begins
OATH OF OFFICE
An oath is an outward pledge whereby one formally calls
upon God to witness to the truth of what he says or to
the fact that he sincerely intends to do what he says.
Although the law usually requires the taking of an oath,
it is not indispensable. It is a mere incident to the office
and constitutes no part of the office itself. However, the
President, Vice-President and Acting President are
required by the Constitution (Art. VII, Sec. 5) to take an
oath or affirmation before entering into the execution of
their office. Such oath-taking is mandatory.
Q: Who are authorized to administer oaths?
(1) Notaries public;
(2) Judges;
(3) Clerks of court;
(4) Secretary of House / Senate;
(5) Secretary of Exec. Departments;
(6) Bureau Directors;
(7) Register of Deeds;
(8) Provincial governors;
(9) City mayors;
(10) Municipal mayors;
(11) Any other officer in the service of the government
of the Philippines whose appointment is vested in the
President;
(12) Any other officer whose duties, as defined by law or
regulation, require presentation to him of any statement
under oath
Q: Who are obliged to administer oaths in all instances,
and not just in matters of official business?
(1) Notaries public;
(2) Municipal judges;
(3) Clerks of court
Time of Taking the Oath of Office
A public officer must take his oath of office before
entering upon the discharge of his duties.
Requalification
If a public officer is re-elected or re-appointed, he must
take another oath and fulfill the other condition
precedents before assuming office. The oath and other
qualifications made prior to assumption of his previous
office will not be valid for subsequent terms of office.
GIVING OF BONDS
Persons required to give bond
Q: Who are the public officers generally required to give
a bond?
(1) Accountable public officers or those to whom are
entrusted the collection and custody of public money;
(2) Public ministerial officers whose actions may affect
the rights and interests of individuals.
The bond is in the nature of an indemnity bond rather
than a penal or forfeiture bond.
The bond is also an obligation binding the sureties to
make good the officer’s default. It is required not for
the benefit of the office holder, but for the protection of
the public interest and is designed to indemnify those
suffering loss or injury by reason of misconduct or
neglect in office.
Effect of Failure to Give Bond within the
Prescribed Period
If not condition precedent: Failure to give bond
merely constitutes a ground for forfeiture of the office; it
is not forfeiture of the office ipso facto.
IF condition precedent: Failure to give bond within
the prescribed period renders the office vacant.
TERM AND TENURE OF OFFICE
Term of Office/ De jure
Fixed and definite period of time during the officer may
claim to hold the office as a right.
Tenure of Office/De facto
Period during which the incumbent actually holds the
office. It may be shorter than the term.
It is only in those cases in which the office is held at the
pleasure of the appointing power and where the power
of removal is exercisable at its mere discretion that the
officer may be removed without notice or hearing. (Alba
v. Evangelista)
Power of the Legislature to Fix and Change the
Term of Office
RULES:
Where the term is fixed by the Constitution: Congress
has no power to alter the term.
However, such term of office can be shortened or
extended by the vote of the people ratifying a
constitutional amendment.
Where the term is not fixed: Congress may fix the terms
of officers other than those provided for in the Const.
Congress has the power to change the tenure of officers
holding offices created by it. However, if the term is
lengthened and made to apply to the incumbents, this
could be tantamount to a legislative appointment which
is null and void.
When Term of Office Dependent upon "Pleasure
of the President"
Congress can legally and constitutionally make the
tenure of certain official’s dependent upon the pleasure
of the President. (Alba v. Evangelista)
Where the office is held at the pleasure of the
appointing power and such appointing power can
exercise the power of removal at his mere discretion,
the public officer may be removed without notice or
hearing. (Alba v. Evangelista)
No Vested Interest in Term of Office
Public office is a privilege revocable by the sovereignty
at will. An incumbent cannot validly object to the
alteration of his term since he has no vested right in his
office. (Greenshow v. U.S.)
Term of Office Not Extended by Reason of War
There is no principle, law or doctrine by which the term
may be extended by reason of war. (Nueno, et al. v.
Angeles)
DOCTRINE OF HOLDOVER
A public officer whose term has expired or services have
been terminated is allowed to continue holding his office
until his successor is appointed or chosen and had
qualified. (Mechem)
Purpose of the Hold-Over Rule
Public interest. It is to prevent a hiatus in the
government pending the time when a successor may be
chosen and inducted into office.
Holding-Over Rules
1. Where the law provides for it: The office does not
become
2. Vacant upon the expiration of the term if there is no
successor elected and qualified to assume it. Incumbent
will hold-over even if beyond the term fixed by law.
3. Where the law is silent: Unless hold-over is expressly
or impliedly prohibited, incumbent may hold-over.
4. Where the Constitution limits the term of a public
officer and does not provide for hold-over: Hold-over is
not permitted.
COMMENCEMENT OF TERM OF OFFICE
RULES:
(1) Where the time is fixed: The term will begin on the
specified date.
(2) Where no time is fixed: The term will generally begin
on the date of the election or the appointment.
CLASSIFICATION OF POWERS
a. Discretionary
b. Ministerial
Definition
a. Acts which require the exercise of reason in
determining when, where, and how to exercise the
power
b. Acts which are performed in a given state of facts, in
a prescribed manner, in obedience to the mandate of
legal authority, without regard to or the exercise of his
own judgment upon the propriety or impropriety of the
act done (Lamb v. Phipps)
Can be delegated?
a. Generally, NO.
Exception: When the power to substitute / delegate
has been given
b. Generally, YES.
Exception: When the law expressly requires the act to
be performed by the officer in person and / or prohibits
such delegation
When is mandamus proper?
Only if the duty to do something has been delayed for
an unreasonable period of time.
In all cases, is public officer liable?
*Generally not liable
Exceptions: If there is fraud or malice
*Liable if duty exercised contrary to the manner
prescribed by law.
POWERS AND DUTIES OF PUBLIC OFFICERS
Source of Government Authority: The people, the
sovereignty.
The duties of a public office includes all those which
truly are within its scope (Lo Cham v. Ocampo):
(1) Those which are essential to the accomplishment of
the main purpose for which the office was created; or
(2) Those which, although incidental or collateral, are
germane to and serve to promote the accomplishment
of the principal purpose.
Territorial Extent of Powers of Public Officer
GENERAL RULE: Where a public officer is authorized
by law to perform the duties of his office at a particular
place, action at a place not authorized by law is
ordinarily invalid. (Note: This rule is applicable to all
public officers whose duties are essentially local in
nature, e.g. judges.)
EXCEPTIONS:
(1) Consuls;
(2) Police officers, who may arrest persons for crimes
committed outside Philippine territory;
(3) Doctrine of hot pursuit
Duration of Authority of Public Officers
The duration of the authority of public officers is limited
to that term during which he is, by law, invested with
the rights and duties of the office.
Construction of Grant of Powers
Strict construction. Will be construed as conferring only
those powers which are expressly imposed or
necessarily implied.
Auditors and comptrollers, as accounting officers, are
generally regarded as quasi-judicial officers. They
perform mere ministerial duties only in cases where the
sum due is conclusively fixed by law or pursuant to law.
Except in such cases, the action of the accounting
officers upon claims coming before them for settlement
and certification of balances found by them to be due, is
not merely ministerial but judicial and discretionary.
Mandamus will therefore not issue. (Lamb v. Phipps)
The powers of the Board of Canvassers are quasi-judicial
and therefore discretionary. (Torres v. Ribo)
Mandamus will not issue to control or review the
exercise of discretion of a public officer where the law
imposes on him the right or duty to exercise judgment in
reference to any matter in which he is required to act.
(Aprueba v. Ganzon)
The privilege of operating a market stall under license is
not absolute but revocable under an implied lease
contract subject to the general welfare clause.
Mandamus never lies to enforce the performance of
contractual obligations.
Public officers may properly be compelled by mandamus
to remove or rectify an unlawful act if to do so is within
their official competence. (Miguel v. Zulueta)
When will the writ of mandamus issue?
To correct a gross abuse of discretion, a palpable excess
of authority resulting in manifest injustice (Gesolgon v.
Lacson);
Where the question of constitutionality is raised by the
petitioner (Cu Unjieng v. Patstone);
Q: When will the writ of mandamus never issue?
(1) To control discretion;
(2) When another adequate remedy exists;
(3) To enforce the performance of contractual
obligations, as in the issuance of a license / permit
(Aprueba v. Ganzon);
Q: In filing a mandamus suit, when does a taxpayer not A tax circular issued on a wrong construction of the law
have to show that he has any legal or special interest in cannot give rise to a vested right that can be invoked by
the results of such suit? a taxpayer. (Hilado v. Collector)

Accountability and Responsibility of Public

A: When the question is one of public right and the Officers and Employees
object of the mandamus is to procure the enforcement
of a public duty, such as the observance of the law.
(Miguel v. Zulueta) Norm of Performance of Duties

TIME OF EXECUTION OF POWERS Q: What are the standards of personal conduct

provided for in Sec. 4, RA 6713?

Where not indicated: Within a reasonable time

(1) Commitment to public interest;

Where indicated: Merely directory

(2) Professionalism;

Exceptions:
(3) Justness and sincerity;

-When there is something in the statute which shows a

different intent (Araphoe City v. Union Pac); (4) Political neutrality;

-Where a disregard of the provisions of the statute (5) Responsiveness to the public;
would injuriously affect a public interest or public right;

(6) Nationalism and patriotism;

-When the provision is accompanied by negative words
importing that the acts shall not be done in any other
manner or time than that designated. (7) Commitment to democracy;

Ratification of Unauthorized Acts (8) Simple living

If act was absolutely void at the time it was done: RIGHTS AND PRIVILEGES OF PUBLIC OFFICERS
Cannot be ratified
Right to Office
If merely voidable: Can be ratified and rendered valid
The right to office is the right to exercise the powers of
Where superior officers have authority to ratify the acts the office to the exclusion of others.
of their inferiors, they are restricted to the ratification of
acts and contracts which they themselves are
Right to Salary or Compensation
empowered to make.

It is not enough that the public officer acted beyond his
powers in order that he may be held liable for damages.
If the act committed is reasonably related to his duties
and the officer was in good faith, he will not be held
liable.
GENERAL RULES:
A public officer is not entitled to compensation for
services rendered under an unconstitutional statute or
provision thereof.

Government not estopped by the unauthorized or Illegal Exception: If some other statute provides
acts of officers otherwise.

As between an individual and his government, the
individual cannot plead the void act of an official to
shield him from the demand of the government that he
(the individual) fulfill an obligation which he has
contracted with the government, after the benefits
accruing to him as a result of that obligation have been
received. The government can neither be estopped nor
prejudiced by the illegal acts of its servants.
(Government v. Galarosa)
If no compensation is fixed by law, the public officer is
assumed to have accepted the office to serve
gratuitously.
After services have been rendered by a public officer,
the compensation thus earned cannot be taken away by
a subsequent law. However, he cannot recover salary
for a period during which he performed no services.
One without legal title to office either by lawful
appointment or election and qualification is not entitled
to recover salary or compensation attached to the office.
One who intrudes into or usurps a public office has no
right to the salary or emoluments attached to the office.
Compensation is not indispensable to public office. It is
not part of the office but merely incident thereto. It is
sometimes expressly provided that certain officers shall
receive no compensation, and a law creating an office
without any provision for compensation may carry with it
the implication that the services are to be rendered
gratuitously.
Compensation is not an element of public office
Salary, Wages, and Per Diems Defined and
Distinguished
Salary: Time-bound
Wages: Service-bound
Per Diem: Allowance for days actually spent for
special duties
Salary of Public Officer Not Subject to Attachment
The salary of a public officer or employee may not, by
garnishment, attachment, or order of execution, be
seized before being paid by him, and appropriated for
the payment of his debts.
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
because the sovereign State cannot be sued in its own
courts except by express authorization by statute. Until
paid over by the agent of the government to the person
entitled to receive it, public funds cannot in any legal
sense be part of his effects subject to attachment by
legal process. (Director of Commerce and Industry v.
Concepcion)
Future or Unearned Salaries Cannot be Assigned
The salary or emoluments in public office are not
considered the proper subject of barter and sale. (22
R.C.L. 541)
Agreements Affecting Compensation Held Void
An agreement by a public officer respecting his
compensation may rightfully be considered invalid as
against public policy where it tends to pervert such
compensation to a purpose other than that for which it
was intended, and to interfere with the officer's free and
unbiased judgment in relation to the duties of his office.
(This is usually with reference to unperformed services
and the salary or fees attached thereto.)
Right to Recover Salary: De Jure Officer and De
Facto Officer
Where a mayor filed a certificate of candidacy for
congressman then withdrew such certificate and
reassumed the position of mayor, thus preventing the
vice-mayor from discharging the duties of the position of
mayor, the mayor should reimburse to the vice-mayor,
as the right rightful occupant of the position of mayor,
the salaried which he had received. (Monroy v. CA and
del Rosario)
Where a duly proclaimed elective official who assumes
office is subsequently ousted in an election protest, the
prevailing party can no longer recover the salary paid to
the ousted officer. The ousted officer, who acted as de
facto officer during his incumbency, is entitled to the
compensation, emoluments and allowances which are
provided for the position. Exception: If there was fraud
on the part of the de facto officer which would vitiate his
election. (Rodriguez v. Tan)
Q: When can the de jure officer recover from:
(a) The government?
When the government continues to pay the de facto
officer even after the notice of adjudication of the
protest in favor of the de jure officer.
(b) A de facto officer?
When notice of adjudication of the title to the de jure
officer has been given, and the de facto officer still
continues to exercise duties and receive salaries and
emoluments.
(c) An intruder / usurper?
At all instances.
Additional or Double Compensation Prohibited
Differentiate additional compensation from double
compensation.
Additional
There is only 1 position, but additional compensation.
.
Double
There are 2 positions, and with additional functions and
the public officer is getting emoluments for both
positions
Differentiate the 2 kinds of allowances.
Commutable
Given by virtue of the position whether or not he
incurred expenses for which the allowance is given.
Received as matter of right
There is conclusive presumption that it was spent.
Reimbursable
The public officer must present a receipt or certification
under oath that such amount spent in order the officer
may recover the money spent.
RULES:
Pensions / gratuities are not considered as additional,
double, or indirect compensation. (Sec. 8, Art. IX-B,
1987 Constitution)
By its very nature, a bonus partakes of an additional
remuneration or compensation. (Peralta v. Auditor
General)
An allowance for expenses incident to the discharge of
the duties of office is not an increase of salary, a
perquisite, or an emolument of office. (Peralta v.
Auditor-General)
ADMINISTRATIVE DISCIPLINE
I. OVER PRESIDENTIAL APPOINTEES
Administrative charges were filed against the PUP
President and other officers for violations of RA 3019
with the CSC. There is nothing in the provisions of the
Constitution or the Administrative Code of 1987 which
gives the CSC the power to discipline presidential
appointees like petitioner herein. The disciplinary
authority over presidential appointees lies elsewhere –
the President as appointing power himself. (Olonan v.
CSC)
Power to Appoint Implies the Power to Remove;
Exceptions:
-Justices of the Supreme Court (by impeachment)
-Members of Constitutional Commissions (by
impeachment)
-Ombudsman (by impeachment)
-Judges of inferior courts (disciplinary or removal power
vested in the Supreme Court)
A judge who falsifies his Certificate of Service is
administratively liable to the SC for serious misconduct
and inefficiency. Where a criminal complaint against a
judge or other employee arises from their administrative
duties, the Ombudsman must defer action on said
complaint and refer the same to the SC for
determination whether said judge or court employee had
acted within the scope of their administrative duties.
Thus, the Ombudsman should first refer the matter to
the SC for determination of whether the certificates
reflected the true status of his pending case load, as the
SC had the necessary records to make such a
determination. Art. VIII, Sec. 6 of the Constitution
exclusively vests in the SC administrative supervision
over all courts and court personnel. (Bonifacio Sans
Maceda v. Vasquez)
Citing the Maceda case, the SC power of administrative
supervision over judges and court personnel is exclusive.
Investigation by the Ombudsman violates the specific
constitutional mandate of the SC and undermines the
independence of the judiciary. (Dolalas v. Ombudsman-
Mindanao)
II. OVER ELECTIVE OFFICIALS
Impeachment
A verified complaint may be filed by any member of the
House of Representatives or by any citizen upon a
resolution of endorsement by any member thereof.
Complaint shall be included in the Order of Business
within ten sessions days and referred to the proper
Committee within three sessions days thereafter.
The Committee, after hearing, and by a majority vote of
all its members, shall submit its report to the House
within sixty session days from such referral, together
with the corresponding resolutions. The resolution shall
be calendared for consideration of the House within ten
session days from receipt thereof.
A vote of at least one-third of all the members of the
House shall be necessary either to affirm a favorable
resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution.
In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the
members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
The Senate shall have the sole power to try and decide
all cases of impeachment. When sitting for that purpose,
the Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice
of the Supreme Court shall preside, but shall not vote.
No person shall be convicted without the concurrence of
two-thirds of all the members of the Senate.
Judgment in cases of impeachment shall not extend
further than removal from office and disqualification to
hold office under the Republic of the Philippines, but the
party convicted shall nevertheless be liable and subject
to prosecution, trial and punishment according to law.
No impeachment proceedings shall be initiated against
the same official more than once within a period of one
year.
III. OVER NON-PRESIDENTIAL APPOINTEES
Grounds
Sec. 46(a), Book V of EO 292 provides that “No officer
or employee in the Civil Service shall be suspended or
dismissed except for cause as provided by law and after
due process.” The grounds constituting just cause are
enumerated in Sec. 46(b).
1. Dishonesty
2. Oppression
3. Neglect of Duty
4. Misconduct
5. Disgraceful & Immoral Conduct
6. Notoriously Undesirable
7. Discourtesy in the course of duty
8. Inefficiency & incompetence in performance of duty
9. Receiving for personal use of a gift in course of official
duty if given in hope of receiving favor or better
treatment
10. Conviction of crime involving moral turpitude
11. Unauthorized solicitation and contribution from
subordinate employees
12. Violation of Civil Service Law
13. Falsification of official documents
14. Frequent unauthorized absences or tardiness
15. Habitual drunkenness
16. Gambling prohibited by law
17. Refusal to perform official duty/overtime service
18. Disgraceful, Immoral & Dishonest conduct before
entering the service
19. Physical or mental incapacity
20. Borrowed money by superior from subordinate
21. Lending money at usurious rate/interest
22. Willful failure to pay just debt/tax
23. Contracting loan of money/property w/ whom office
of EE has business relation.
24. Pursuit of private business/vocation or profession
w/o permission from Civil Service.
25. Insubordination
26. Engaging in Partisan Political Activity by one holding
non-political office
27. Conduct is prejudicial to service
28. Lobbying for personal interest or gain in legislative
halls w/o authority
29. Promote sale of tickets in behalf of private
entrepreneurs not intended for public purpose
30. Nepotism
Jurisdiction
Original complaints may be filed: (a) directly with the
CSC or (b) with the Secretaries and heads of agencies
and instrumentalities, provinces, cities and municipalities
for officers and employees under their jurisdiction.
Decisions of Secretaries and heads of agencies and
instrumentalities, provinces, cities and municipalities
shall be final in case the penalty imposed is suspension
for not more than thirty days or fine in an amount not
exceeding thirty days’ salary.
In case the decision rendered by a bureau or office head
is appealable to the Commission, the same may be
initially appealed to the department and finally to the
Commission and pending appeal, the same shall be
executory except when the penalty is removal, in which
case the same shall be executory only after confirmation
by the Secretary concerned.
*Decisions imposing the penalty of suspension for more
than thirty days or fine in an amount exceeding thirty
days’ salary, demotion in rank or salary or transfer,
removal or dismissal from office shall be appealable to
the CSC.
Procedure in Administrative Cases Against Non-
Presidential Appointees
Administrative proceedings may be commenced against
a subordinate officer or employee by the Secretary or
head of office of equivalent rank, or head of local
government, or chiefs of agencies, or regional directors,
or upon sworn written complaint of any other person.
For complaints filed by any other person
Complainant shall submit sworn statements covering his
testimony and those of his witnesses together with his
documentary evidence.
If based on such papers a prima facie case is found not
to exist, the disciplining authority shall dismiss the case.
Otherwise, he shall notify the respondent in writing of
the charges against the latter.
Respondent shall be allowed not less than seventy-two
hours after receipt of the complaint to answer the
charges in writing under oath, together with supporting
sworn statements and documents. He shall also indicate
whether or not he elects a formal investigation if his
answer is not considered satisfactory.
If the answer is found satisfactory, the disciplining
authority shall dismiss the case.
Although a respondent does not request a formal
investigation, one shall nevertheless be conducted when
from the allegations of the complaint and the answer of
the respondent, including the supporting documents, the
merits of the case cannot be decided judiciously without
conducting such an investigation.
The decision shall be rendered by the disciplining
authority within thirty days from the termination of the
investigation or submission of the report of the
investigator, which report shall be submitted within
fifteen days from the conclusion of the investigation.
Either party may avail himself of the services of counsel
and may require the attendance of witnesses and the
production of documentary evidence in his favor through
the compulsory process of subpoena or subpoena duces
tecum.
Appeals and Petition for Reconsideration
Appeals, where allowable, shall be made by the party
adversely affected by the decision within fifteen days
from receipt of the decision unless a petition for
reconsideration is seasonably filed, which petition shall
be decided within fifteen days.
A petition for reconsideration shall be based only on any
of the following grounds:
(a) New evidence has been discovered which materially
affects the decision rendered;
(b) The decision is not supported by the evidence on
record; or
(c) Error of law or irregularities have been committee
which are prejudicial to the interests of the respondent.
Only one petition for reconsideration shall be allowed.
The remedy of appeal in civil service cases may be
availed of only in a case where respondent is found
guilty of the charges against him. But when the
respondent is exonerated of said charges, as in this
case, there is no occasion for appeal. (Mendez v. Civil
Service Commission)
Summary Proceedings
No formal investigation is necessary and the respondent
may be immediately removed or dismissed if any of the
following circumstances is present:
(1) When the charge is serious and the evidence if guilt
is strong;
(2) When the respondent is a recidivist or has been
repeatedly charged and there is reasonable ground to
believe that he is guilty or the present charge; and
(3) When the respondent is notoriously undesirable.
Preventive Suspension
The proper disciplining authority may preventively
suspend any subordinate officer or employee under his
authority pending an investigation, if the charge against
such officer or employee involves:
(a) Dishonesty; or
(b) Oppression or grave misconduct; or
(c) Neglect in the performance of duty; or
(d) If there are reasons to believe that the
respondent is guilty of charges which would warrant his
removal from the service.
Maximum period for preventive suspension is ninety (90)
days for national officials. Under the Local Government
Code, local appointive and elective officials may be
preventively suspended for only sixty (60) days.
If the case is filed in the Ombudsman, the latter may interest of the service.
impose a preventive suspension for a period of six (6)
months.
TERMINATION OF OFFICIAL RELATIONS

When the administrative case against the officer or

employee under preventive suspension is not finally Modes of Termination
decided by the disciplining authority within the period of
ninety (90) days after the date of suspension of the
respondent who is not a presidential appointee, the 1) Expiration of Term or Tenure of Office
respondent shall be automatically reinstated in the
service.
a) End of a fixed term

Penalty
b) End of Pleasure where one holds office at pleasure of
appointing authority
In meting out punishment, the same penalties shall be
imposed for similar offenses and only one penalty shall
c) Loss of confidence in primarily confidential
be imposed in each case.
employment

The disciplining authority may impose the penalty of

2) Reaching the age limit; Retirement
removal from the service, demotion in rank, suspension
for not more than one year without pay, fine in an
amount not exceeding six months’ salary, or reprimand. 3) Bona fide abolition of office
(Sec. 46(d), Book V, EO 292)

4) Abandonment of office
If the respondent is found guilty of two or more charges
or counts, the penalty imposed should be that
corresponding to the most serious charge or count and 5) Acceptance of an incompatible office
the test may be considered as aggravating
circumstances. (Sec. 17 of the Implementing Civil
Service Rules and Regulations) 6) Resignation

A reprimand whether given by the Civil Service 7) Resignation

Commission or the head of department or agency shall
be considered a penalty. However, a warning or an
admonition shall not be considered a penalty. (Sec. 15 8) Removal for cause
of the Implementing Civil Service Rules and Regulations)
9) Temporary appointments’ termination
Reprimand is a penalty. In this case, police chief is not
entitled to back wages as Sec. 16 of the Police Act of
1966 expressly provides that a suspended member of 10) Recall
the police force shall be entitled to his salary for the
period of his suspension upon exoneration. A reprimand
11) Impeachment
is not equivalent to an exoneration. It is more severe
than an admonition, which is considered a mild rebuke.
A reprimand is administered to a person in fault by his 12) Prescription of right to office
superior officer or a body to which he belongs. It is an
administrative penalty, although it may be slight form of
punishment. (Tobias v. Veloso) 13) Death

NOTE: A warning is an act or fact of putting one on his
guard; an admonition is a gentle or friendly reproof or a
mild rebuke; while a reprimand is a formal and
public censure or a severe reproof.
14) Conviction of crime where disqualification is an
accessory penalty
15) Filing of certificate of candidacy

Removal of Administrative Penalties or

Disabilities 16) Performance of act or accomplishment of purpose
for which the office was created

In meritorious cases and upon recommendation of the

CSC, the President may commute or remove
administrative penalties or disabilities imposed upon
officers or employees in disciplinary cases, subject to
such terms and conditions as he may impose in the
 Expiration of Term or Tenure of Office
End of Fixed Term
Upon the expiration of the officer’s term, unless he is
authorized by law to hold over, his rights, duties and
authority as a public officer must be ipso facto
terminated.
End of pleasure where one holds office at the pleasure
of the appointing authority
What is involved here is not the question of removal, or
whether legal cause should precede or not that of
removal. What is involved here is the creation of an
office and the tenure of such office, which has been
made expressly dependent upon the pleasure of the
President. (Alba v. Evangelista)
The Charter of Basilan City provides that the President
shall appoint and may remove at his discretion any of
the city’s officers, including its Chief of Police, with the
exception of the municipal judge, who may be removed
only according to law. Congress has the power to vest
such power of appointment. Further, “A public office is
the right for a given period, either fixed by law or
enduring at the pleasure of the creating power.” Alba v.
Evangelista states that the replacement is not removal,
but an expiration of tenure, which is an ordinary mode
of terminating official relations. (Fernandez v Ledesma)
Loss of Confidence in Primarily Confidential
Employment
Even officers and employees of the civil service
occupying primarily confidential positions are subject to
the constitutional safeguard against removal or
suspension except for cause. (Hernandez v. Villegas)
The statement that an officer holding a position which is
primarily confidential in nature is “subject to removal at
the pleasure of the appointing power” is inaccurate.
Such statement (a mere obiter in the case of De los
Santos v. Mallare), if detached from the context of the
decision in said case, would be inconsistent with the
constitutional command to the effect that “no officer or
employee in the Civil Service shall be removed or
suspended except for cause as provided by law,” and it
is conceded that one holding in the government a
primarily confidential positions is “in the Civil Service.”
(Ingles v. Mutuc)
This should not be misunderstood as denying that the
incumbent of a primarily confidential position holds
office at the pleasure only of the appointing power. It
should be noted however, that when such pleasure turns
into displeasure, the incumbent is not “removed” or
“dismissed” from office - his “term” merely “expires” in
much the same way as an officer, whose right thereto
ceases upon expiration of the fixed term for which he
had been appointed or elected is not and cannot be
deemed “removed” or “dismissed” therefrom, upon the
expiration of said term. The main difference between
the former - the primarily confidential officer - and the
latter is that the latter’s term is fixed or definite,
whereas that of the former is not pre-fixed but
indefinite, at the time of his appointment or election,
and becomes fixed and determined when the appointing
power expresses its decision to put an end to the
services of the incumbent. When this event takes place,
the latter is not “removed” or “dismissed” from officer -
his term has merely expired.
President appointed Gray as Board secretary of the
People’s Homesite and Housing Corporation but was
later terminated through a board resolution due to loss
of confidence. SC reversed ruling that Gray’s
appointment was a permanent one. Although the
President, EO 99, declared the position of secretary to
the board of a government corporation “primarily
confidential in nature,” it does not follow that a board
secretary whose appointment was permanent may be
removed from office without a formal charge specifying
the ground for removal and without giving him an
opportunity to be head. Such removal was illegal since
there was no lawful cause for removal. (Gray v. De
Vera)
By declaring that the position is primarily confidential in
nature, the President intended that the position be filled
by an appointee of unquestioned honesty and integrity.
The act of Gray in reporting the board’s act of
mismanagement and misconduct was in consonance
with the honesty and integrity required for the position.
The Constitution merely excepts primarily confidential
positions from the coverage of “the rule requiring
appointments in the civil service to be made on the basis
of merit and fitness as determined from the competitive
exams,” but does not exempt such positions from the
operation of the principle that no officer or employee in
the civil service shall be removed or suspended except
for cause as provided by law, which recognizes no
exception. (Cariño v. ACCFA)
Reaching the Age Limit; Retirement
Conditions for entitlement to retirement benefits (R.A.
No. 8291)
a) He has rendered at least fifteen (15) years of service;
b) He is at least sixty (60) years of age at the time of
retirement; and
c) He is not receiving a monthly pension benefit from
permanent total disability.
Compulsory Retirement
Unless the service is extended by appropriate
authorities, retirement shall be compulsory for an
employee at least sixty-five (65) years of age with at
least fifteen (15) years of service; Provided that if he has
less than fifteen (15) years of service, he may be
allowed to continue in the service in accordance with
existing civil service rules and regulations.
Retirement benefits
(1) The lump sum payment defined in RA No. 8291
payable at the time of retirement plus an old-age
pension benefit equal to the basis monthly pension
payable monthly for life, starting upon expiration of the
give-year (5) guaranteed period covered by the lump
sum; or
(2) Cash payment equivalent to eighteen (18) months of
his basic monthly pension plus monthly pension for life
payable immediately with no five-year (5) guarantee.
The compulsory retirement of government officials and
employees upon reaching the age of 65 years is founded
on public policy which aims by it to maintain efficiency in
the government service and, at the same time, give to
the retiring public servants the opportunity to enjoy
during the remainder of their lives the recompenses for
their long service and devotion to the government, in
the form of a comparatively easier life, freed from the
rigors, discipline and the exacting demands that the
nature of their work and their relations with their
superiors as well as the public would impose on them.
(Beronilla v GSIS)
A BOR resolution extended the services of a UP
professor for another year. In the same year, he
reached the age of 65. The Auditor General questioned
the legality of the resolution arguing that the services
rendered after the compulsory retirement age were
illegal and that he was not entitled to compensation.
SC upheld Auditor General ruling that as government
employees, UP professors are compulsorily covered by
the Retirement Law which creates a uniform retirement
system for all members of the GSIS. (UP Board of
Regents v. Auditor General)
In 1991, he was advised to apply for retirement. He was
already 68 years old with 13 years of service. He
requested that his services be extended in order that he
may complete the 15-year service requirement. This was
denied and Rabor claimed that the doctrine nunciated in
Cena v. CSC should be applied in his case. (Rabor v.
CSC)
SC ruled that the Cena doctrine is not applicable. To
reiterate, the head of the government agency concerned
is vested with discretionary authority to allow or disallow
extension of service of an employee who has reached 65
years old without completing 15 years of government
service; this discretion to be exercised conformably with
CSC Memo Circular No. 27, s. of 1990.
Bona Fide Abolition of Office
As a general rule, absent some Constitutional
prohibition, Congress may abolish any office it creates
without infringing upon the rights of the officer or
employee affected.
To consider an office abolished, there must have been
an intention to do away with it wholly and permanently.
Termination by virtue of the abolition of the office is to
be distinguished from removal. There can be no tenure
to a non-existent office. After the abolition, there is in
law no occupant. In case of removal, there is an office
with an occupant who would thereby lose his position. It
is in that sense that from the standpoint of strict law,
the question of any impairment of security of tenure
when there is an abolition of office does not arise. The
right itself disappeared with the abolished office as an
accessory following the principal.
Busacay was laid off as toll collector when the bridge
was destroyed. However, the bridge was later
reconstructed and opened to the public with a new
collector being appointed. Busacay was ordered
reinstated by the SC. To consider an office abolished,
there must have been an intention to do away with it
wholly and permanently. In the case at bar, there was
never any thought of not rebuilding the bridge. The
collapse of the bridge did not work to destroy but only
to suspend the position of toll collector thereon, and
upon its reconstruction and re-opening, the collector’s
right to the position was similarly and automatically
restored. (Busacay v. Buenaventura)
Quitoriano was appointed as NES Commissioner in spite
of the recommendation of the Labor secretary to appoint
Manalang who was the incumbent Director of the
Placement Bureau. SC held that appoint of Quitoriano
was valid. Had Congress intended the NES to be a mere
enlargement of the Placement Bureau, it would have
directed the retention, not the transfer, of qualified
personnel to the NES. Manalang has never been NES
Commissioner and thus could not have been removed
therefrom. (Manalang v. Quitoriano)
Abolition Must Be in Good Faith
In order to be valid, the abolition must be made in good
faith, not for personal or political reasons, and not
implemented in violation of law.
The City created 35 new positions and abolished 32, of
which the positions of Briones and Rosagaran were
included. Consequently, the two were terminated. SC
held that the termination was not valid. While abolition
does not imply removal of the incumbent, this rule is
true only where the abolition is made in good faith. In
other words, the right to abolish cannot be used to
discharge employees in violation of the Civil Service law
nor can it be exercised for personal or political reasons.
(Briones v. Osmeña)
There is no law which expressly authorizes a municipal
council to abolish the positions it has created. However,
the rule is well-settled that the power to create an office
includes the power to abolish it, unless there are
constitutional or statutory rules providing otherwise. But
the office must be abolished in good faith. (Facundo v.
Pabalan)
Where the abolition is made in bad faith, for political or
personal reasons, or in order to circumvent the
constitutional security of tenure of civil service
employees, it is null and void. In the case at bar, while
22 positions were abolished, 28 new positions with
higher salaries were simultaneously created. No charge
of inefficiency is lodged against petitioners. In truth and
in fact, what respondents sought to achieve was to
supplant civil service eligible with men of their choice,
whose tenure would be totally dependent upon their
pleasure and discretion. (Cruz v. Primicias)
Reorganization
Occurs where there is an alteration of the existing
structure of government offices or units therein,
including the lines of control, authority and responsibility
between them to promote greater efficiency, to remove
redundancy of functions, or to effect economy and make
it more responsive to the needs of their public clientele.
It may result in the loss of one’s position through
removal or abolition of office. Reorganization of the
government may be required by law independently of
specific constitutional authorization. But in order to be
valid, it must also be done in good faith.
Alandy was the incumbent Assistant General Manager of
the PCSO. In 1954, Resolution No. 314 was passed to
reorganize the PCSO. The position of Assistant General
Manager was converted to General Field Supervisor to
which Alandy was appointed. However, in 1955, the
position of Assistant General Manager was again created
through Resolution No. 422 and a different person was
appointed to the position. SC invalidated the new
appointment and reinstated Alandy to his position as
PCSO Assistant General Manager. What occurred here is
that the position of Assistant General Manager was not
abolished but was merely converted to another position.
(Board of Directors of PCSO v. Alandy)
A reorganization is carried out in good faith if it is for the
purpose of economy or to make the bureaucracy more
efficient. Good faith, as a component of reorganization
under a constitutional regime, is judged from the facts
of each case. In the case at bar, there was lack of good
faith. Mison’s argument that the reorganization is
progressive would be valid only if it was pursuant to
Proclamation 3. However, in spite of her immense
revolutionary power, Pres. Aquino still promulgated EO
17 which established safeguards against the propensity
that accompany reorganizations and established the rule
that dismissals should be based on findings of
inefficiency, graft and unfitness to render public service.
Assuming then that the reorganization in the first stage
was progressive and still valid, such dismissals as
ordered by Mison would still have to comply with the
terms set down in EO 17. (Dario v. Mison)
Abandonment of Office
A public office may become vacant ipso facto by
abandonment and non-user. When an office is once
abandoned, the former incumbent cannot legally
repossess it even by forcible re-occupancy.
Abandonment must be total and absolute, and must be
under such circumstances as clearly to indicate an
absolute relinquishment thereof. Moreover, the officer
should manifest a clear intention to abandon the office
and its duties. Abandonment by reason of acceptance of
another office, in order to be effective and binding, must
spring from and be accompanied by deliberation and
freedom of choice, either to keep the old office or
renounce it for another. Temporary absence is not
sufficient.
Summers, a cadastral judge, assumed office as CFI
judge due to an ad interim appointment. However, the
ad interim appointment was disapproved and Summers
now seeks to be reappointed as cadastral judge. SC held
that Summers’ voluntary acceptance of the position of
CFI judge amounted to a waiver of his right to hold the
position of cadastral judge during the term fixed and
guaranteed by the Constitution. He accepted and
qualified for the position of judge-at-large by taking the
oath of office of judge-at-large, and not merely of an
“acting” judge-at-large. The situation is one wherein he
cannot legally hold two offices of similar category at the
same time. (Summers v. Ozaeta)
Floresca’s refusal to assume his pre-war post as Justice
of the Peace and his subsequent acceptance of other
employments without any pretense on his part that he
simultaneously continued to perform the functions of the
Justice of the Peace, clearly show deliberate
abandonment of the latter office. (Floresca v. Quetulio)
Ortiz allowed three years to elapse since he was ousted
from office without having taken any steps to reclaim his
former office. SC held that he cannot ask for
reinstatement. A public employee who voluntarily
abandons his office for a long time is estopped from
asking for reinstatement. In order to constitute an
abandonment of office, it must be total, and under such
circumstances as to clearly indicate an absolute
relinquishment. Temporary absence is not sufficient
where no statute fixes the period beyond which the
absence must continue. In all cases, the officer should
manifest a clear intention to abandon the office and its
duties. Yet, this intention may be inferred from his
conduct. If his acts and statements are such as to
clearly indicate absolute relinquishment, a vacancy will
be thereby created and no judicial determination is
necessary. When once abandoned, the former
incumbent cannot legally repossess the office. (Ortiz v.
De Guzman)
One claiming the right to a position in the civil service
must institute the proper proceeding within one year
from the date of separation, otherwise he is deemed to
have abandoned his office or even acquiesced or
consented to his removal, and thus is not entitled to
seek reinstatement. The rationale is to inform the
Government of the rightful holder of the office and to
prevent payment of salary to both claimants. (Madrid v.
Auditor General)
Having accepted the benefits accruing from the abolition
of his office, he is estopped from questioning its validity
or deemed to have waived the right to contest the
same. (Magana v. Auditor General)
Villegas did not abandon his office as mayor of the City
of Manila when he assumed the position of Director of
NAWASA because he had been merely designated in an
acting capacity and was not appointed to the said
position. (Villegas v. Subido)
The fact that, during the time his appeal was pending
and was thus deprived of his office and salary, an
employee sought employment in another branch of the
government does not constitute abandonment of his
former position. (Tan v. Gimenez)
Acceptance of an Incompatible Office
He who, while occupying one office, accepts another
office incompatible with the first, ipso facto absolutely
vacates the first office. That the second office is inferior
to the first does not affect the rule. And even though the
title to the second office fails as where election is void,
the rule is still the same, nor can the officer then regain
the possession of his former office to which another has
been appointed or elected.
If the law or Constitution as an expression of public
policy forbids the acceptance by a public officer of any
other office other than that which he holds, it is not a
case of incompatibility but of legal prohibition.
Incompatibility of offices exists where:
(a) There is conflict in such duties and functions so
that the performance of the duties of one interferes with
the performance of the duties of another, as to render it
improper for considerations of public policy for one
person to retain both.
(b) One is subordinate to the other and is subject in
some degree to its supervisory powers for in such
situation where both are held by the same person, the
design that one acts as a check on the other would be
frustrated.
(c) The Constitution or the law itself, for reasons of
public policy, declares the incompatibility even though
there is no inconsistency in the nature and functions of
the offices.
Exceptions to the Rule on Holding of
Incompatible Offices
(a) Where the officer cannot vacate the first office by his
own act, upon the principle that he will not be permitted
to thus do indirectly what he could not do directly, as
where the law requires the approval of the provincial
board before a municipal official can resign.
(b) First office is held under a different government from
that which conferred the second.
(c) Officer is expressly authorized by law to accept
another office.
(d) Second office is temporary.
Resignation
A resignation of a public officer need not be in any
particular form, unless some form is prescribed by
statute. Ordinarily, it may either be in writing or by
parol. The conduct of an employee may properly be
regarded as constituting a resignation from the position
held by him. However, to constitute a complete and
operative resignation of public office, there must be an
intention to relinquish a part of the term, accompanied
by the act of relinquishment.
The right of a public officer to resign is well recognized,
even where it is provided than an officer may hold over
until election and qualification of a successor. The right
is sometimes recognized or secured by constitution or
statute.
The views in the various jurisdictions are conflicting in
regard to what constitutes acceptance of a resignation
and whether an acceptance is required. According to
some authorities, no acceptance is necessary to render a
resignation effective, especially when the resignation is
unconditional and purports to take effect immediately.
Indeed, it may be provided by statute that the
resignation of a public officer is to take effect at the time
of filing it.
However, many other cases take the view that to be
effective, the resignation must be accepted by
competent authority. Without acceptance, the
resignation is nothing and the officer remains in office.
(63 Am Jur 2d., sec. 163)
Two (2) elements are necessary to constitute an
effective acceptance:
(1) Intention to relinquish office coupled with
actual relinquishment; and
(2) Acceptance of resignation.
Gonzales filed a letter of resignation the pertinent
portion of which reads: “ x x x subject to the result of
my appeal with the Civil Service Board of Appeals, and
to the provisions of the Resolution of the Cabinet on July
17, 1939.” SC held that Gonzales, although his
conditional resignation was unconditionally accepted,
cannot be considered as having resigned from office.
There was no resignation to speak of. To constitute a
complete and operative act of resignation, the officer or
employee must show a clear intention to relinquish or
surrender his position. In the case at bar, there was no
such intention as Gonzales’ resignation was subject to
the result of his appeal. (Gonzales v. Hernandez)
Petitioner’s separation from the government as a result
of the reorganization ordained by former Pres. Aquino
may not be considered a resignation within the law’s
contemplation. Resignation is defined as 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 his position accompanied by the act of
relinquishment and its acceptance by competent and
lawful authority. Based on the facts, petitioner’s
resignation lacks the element of clear intention to
surrender his position. We cannot presume such
intention from the letter he sent placing himself at the
disposal of the President. He did not categorically state
that he was unconditionally giving up his position. It
should be good to note that said letter was actually a
response to Proclamation No. 1 of Pres. Aquino calling
all appointive public officials to offer their “courtesy
resignation.” (Ortiz v. COMELEC)
A “courtesy resignation” cannot properly be
interpreted as resignation in a legal sense. It just
manifests the submission of a person to the will of the
political authority.
Courtesy resignation is not allowed in (1) career
positions and (2) non-career positions with security of
tenure (i.e. local elective officials).
Removal for Cause
No officer or employee of the civil service shall be
removed or suspended except for cause provided by law
(Sec. 2(3), Art. IX, 1987 Constitution).
Grounds for Removal from Office
For Presidential appointees, there is no specific law
providing for the grounds for their removal.
Determination of grounds is just a matter of practice and
by analogy, the grounds used for non-presidential
appointees are made applicable.
For civil service officials and employees, see Sec. 46,
Book V, E.O. No. 292 which provides for at least 30
grounds for disciplinary action.
For local elective officials, Sec. 60 of the Local
Government Code provides for the grounds where an
elective local official may be disciplined, suspended or
removed from office.
Misconduct need not be “in office” in case of
appointive officers.
Misconduct must be “in office” in case of elective
officers.
Under the Revised Administrative Code, the rule in
preventive suspension provides that a Bureau Chief may
suspend, with the approval of the head of the
department, any subordinate officer or employee if he is
charged with dishonesty, oppression or grave
misconduct or neglect in the performance of duty. The
same words are expressed in the civil service law. From
these provisions, suspension was proper even if the
dishonest act was not in the performance of his duty
since under the Revised Administrative Code and the
Civil Service Law, dishonesty was not qualified by the
phrase “in the performance of duty.” (Nera v. Garcia)
The SC held that the facts alleged in the administrative
charge, as substantiated by the affidavits of the
complainants, do not justify the administrative
proceedings instituted against the petitioner and his
suspension by the governor. The alleged libel imputed to
the mayor was not such misconduct even if the term
“misconduct in office” be taken in its broadest sense.
The radio broadcast in which the objectionable
utterances were made had nothing to do with his official
functions and duties as a mayor. (Ochate v. Ty Deling)
Misconduct committed during a prior term, not a
ground for dismissal
The SC held that the weight of authority follows the rule
which denies the right to remove one from office
because of misconduct during a prior term. Offenses
committed or acts done during a 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 and disqualification from
holding office for the term for which the officer was
elected and appointed. The underlying theory is that
each term is separate from other terms and that re-
election to office operates as a condonation of the
officer’s previous misconduct to the extent of cutting off
the right to remove him therefore. (Pascual v. Provincial
Board)
SC held that Aquinaldo should not be removed from
office. His re-election to the position of Governor of
Cagayan has rendered the administrative case pending
before it moot and academic. (Aguinaldo v. Santos)
Offenses committed or acts done, during a previous
term are generally not held to furnish cause for removal.
The Court should never remove a public officer for acts
done prior to his present term of office. To do otherwise
would be to deprive the people of their right to elect
their officers. When the people have elected a man to
office, it must be assumed that they did this with
knowledge of his life and character, and that they
disregarded or forgave his fault or misconduct, if guilty
of any. It is not for the court, by reason of such fault or
misconduct, to practically overruled the will of the
people.
The rule then is that a public officer cannot be removed
for administrative misconduct committed during a prior
term, since his reelection to office operates as a
condonation of the officer’s previous misconduct to the
extent of cutting off the right to remove him therefore.
This rule, however, is not applicable to criminal cases
pending against the petitioner for acts he may have
committed during the failed coup.
Transfer from One Position to Another May or
May Not Constitute Violation of Security of
Tenure
A transfer is a movement from one position to another
which is of equivalent rank, level, or salary without
break in service involving the issuance of an
appointment.
It shall not be considered disciplinary when made in the
interest of public service, in which case, the employee
concerned shall be informed of the reasons therefore. If
the employee believes that there is no justification for
the transfer, he may appeal to the SC.
The transfer may be from one department or agency to
another or from one organizational unit to another in the
same department or agency; provided, however that
any movement from the non-career service to the career
service shall not be considered a transfer.
Lacson was appointed provincial fiscal of Negros Oriental
by the President. However, three years after, another
person was appointed to the same position while Lacson
was nominated to the position of provincial fiscal of
Tarlac. Lacson never accepted the appointment and did
not assume the duties of said office. The SC held that
Lacson has the right to occupy the office of provincial
fiscal of Negros Oriental as he neither accepted nor
assumed the office of provincial fiscal of Tarlac and no
one can compel his to do so. (Lacson v. Romero)
The intended transfer of Lacson to Tarlac, if carried out
without the approval of Lacson, would be equivalent to a
removal from his office in Negros Oriental. The reason is
that a fiscal is appointed for each province and Lacson
could not legally hold and occupy the two posts of fiscal
of Tarlac and Negros Oriental simultaneously. Therefore,
to be a fiscal of Tarlac must mean his removal from
office in Negros.
Since the transfer in the case at bar is considered a
removal, such should be for cause in order for the other
person to legally occupy the office in Negros. There was
no cause for Lacson’s removal. He therefore remains as
fiscal of Negro.
Termination of Temporary Appointment
The appointment being temporary in character, the
same can be terminated at pleasure by the appointing
power. (Quitiquit v. Villacorta)
One holding an office in a temporary capacity may be
ousted at anytime with or without cause. (Ferrer v. de
Leon)
What determines character of appointment
The controlling factor in determining the character of the
appointment is the appointment itself. Even if a position
is permanent, if the appointment is made temporary, the
appointment is determinative. What is determinative is
not the nature of the office (permanent or temporary),
but the nature of the appointment. (Hojilla v. Marino)
One appointed to a position of another who was illegally
suspended or dismissed, holds it in temporary capacity
and must yield to the latter. The reason for this is that
there was no valid termination.
Recall
The Congress shall enact a local government code which
shall provide for a more responsive and accountable
local government structure instituted through a system
of decentralization with effective mechanisms of recall,
initiative and referendum …(Sec. 3, Art. X, 1987
Constitution)
Procedure for recall is provided in Sections 69-75 of the
Local Government Code.
SC upheld initiation of recall through the Preparatory
Recall Assembly. Recall is a mode of removal of a public
officer by the people before the end of his term of office.
The people’s prerogative to remove a public officer is an
incident to their sovereign power, and in the absence of
constitutional restraint, the power is implied in all
government operations. There are two reasons why a
Preparatory Recall Assembly is allowed: (1) to diminish
the difficulty of initiating recall through direct action of
the people; (2) to cut down on expenses. Moreover, the
Constitution does not provide for any particularly mode
of initiating recall elections. Initiation by the Preparatory
Recall Assembly may be considered as initiation of recall
by the people, although done indirectly through
representatives. In any event, the composition of the
Preparatory Recall Assembly is politically neutral, so loss
of confidence cannot be said to be inspired by difference
in political party affiliation. (Garcia v. COMELEC)
Prescription of Right to Office
No reinstatement is possible in the case at bar. Even if
the removal was void for lack of cause, Unabia filed his
petition for reinstatement with the CFI after a delay of
one year and fifteen days. Any person claiming a right to
a position in the civil service is required to file his
petition for reinstatement within one year, otherwise he
is deemed to have abandoned his office. Reason is
public policy and convenience, stability in the public
service. (Unabia v. City Mayor)
The one-year period is the prescriptive period to claim
public office (whether through quo warranto or
otherwise). The one-year period presupposes judicial
action, not administrative action.
Filing of Certificate of Candidacy
Sec. 66 of the Omnibus Election Code states that any
person holding appointive public offices or positions,
including active AFP members, is considered ipso facto
resigned from office by the mere filing of certificate of
candidacy.
Candidates holding elective office (NOT DEEMED IPSO
FACTO RESIGNED) only on last day of filing of certificate
of candidacy (except if he is running for President or
Vice President, then he did not forfeit his office).

BAR MATTER

IPSO FACTO RESIGNED:

a. Candidates holding appointive office or positions.

Any person holding a public appointive office or position,

including active members of the Armed Forces of the
Philippines, and officers and employees in government-
owned or controlled corporations, shall be considered
ipso facto resigned from his office upon the filing of his
certificate of candidacy.

b. Candidates holding elective office DEEMED RESIGNED

only on last day of their term.

Illustration: X is a councilor of Davao City who runs for

Congressman last May 2007 election of which X lose.
Does X loses his position as councilor of Davao on May
2007? If not, then when?

HELD: X does not ipso facto loses his post as councilor

upon his filing of candidacy nor upon his defeat as
congressman, he loses his seat upon June 30,2007 –the
day of assumption into office of the new set of
councilors (after the election).

Bar Matter: Now with regard senators whose term of

office hasn’t expired yet and during their term they run
for another office, here is an illustration, If you could
remember the case of Lacson on the last 2004
Presidential election where he run as President, and he
lose on that election….however, such defeat does not
operate as the renunciation of his post as senator (SUCH
is also applicable to the case of Lapid, that’s why even if
he lose in the mayoralty bid of makati, he still sit as
senator ).

Note: Performance of Act or Accomplishment of

Purpose for which the Office was created

Note: Performance of act or accomplishment of purpose

renders office functus officio.
Notes from PowerPoint (Public Office) may be true that Laurel received no
compensation, salary is a mere incident and
General Principles forms no part of the office. The position of an NCC
chair may be characterized as an honorary, as opposed
a. Public Office – the right, authority and duty (it to a lucrative office.
has no physical existence), created and conferred by
law, by which for a given period, either fixed by law or SO SALARY IS NOT AN ELEMENT OF PUBLIC
enduring at the pleasure of the creating power, an OFFICE!!
individual is invested with some portions of the
sovereign functions of the government, to be exercised Is continuity a requirement?
by that individual for the benefit of the public. [Sto.
Tomas case] Art. VI. Section 13. No Senator or Member of the
House of Representatives may hold any other office or
• Public office is a public trust employment in the Government, or any subdivision,
agency, or instrumentality thereof, including
ART. XI-ACCOUNTABILITY OF PUBLIC OFFICERS government-owned or controlled corporations or their
subsidiaries, during his term without forfeiting his seat.
Section 1. Public office is a public trust. Public officers
and employees must, at all times, be accountable to the • NOTE THAT WHEN WE SPEAK OF PUBLIC
people, serve them with utmost responsibility, integrity, OFFICE, CONTINUITY IS A
loyalty, and efficiency; act with patriotism and justice, REQUIREMENT!!! THERE WAS THIS
and lead modest lives. CONGRESSMAN WHO USED TO MAKE
LECTURES TO PHILJA.. DOJ MADE AN
Used in 2 Senses: OPINION STATING THAT WHILE
TEACHING IN PHILJA IS NOT AN OFFICE,
1. To any major fundamental unit of a department
IT IS AN EMPLOYMENT.. YOU VIOLATED
(OFFICE OF THE OMBUDSMAN, OFFICE OF THE
THE CONSTITUTION..
COURT ADMINSTRATOR)
• THE POINT SIMPLY IS THAT WHILE
2. To a position held or occupied by an individual
EMPLOYMENT NEED NOT REQUIRE
(OFFICE OF THE MAYOR)
CONTINUIITY, OFFICE REQUIRES
b. Public Officer – one who holds a public office CONTINUITY AS ITS ELEMENT..!!

A public officer is a person whose duties involve • Other Characteristics:

the exercise of discretion in the performance of the
functions of government.
Employees – (ARE THOSE WHO ONLY PERFORM
MINISTERIAL DUTIES)
RPC, Art. 203 – Crimes Committed by Public
Officers [IT INCLUDES OR COVERS employees]
RA No. 3019 [also includes employees, including
government owned or controlled corporations with
original charters as well as subsidiaries
Is salary an element of public office? NO!! IT IS
NOT AN ELEMENT OF PUBLIC OFFICE … AS
LAWYERS AND NOTARIES ARE PUBLIC OFFICERS
AND YET THEY DO NOT RECEIVE SALARY FROM
THE GOVERNMENT!!
-lawyers
Bar Question, 2011
-notaries
Laurel v. Desierto, April 12, 2002
President Aquino issued AO No. 233 constituting a
committee for the National Centennial
Celebration of 1998. Subsequently, President Ramos
named Salvador Laurel as chair. Later he was charged
with violating rules on public bidding in the
award of centennial contracts. Laurel claims that he
is not a public officer and the NCC was not a public
office. Does the OMB have jurisdiction over him?
Held: Yes. As Chair of the NCC, Laurel is a public
officer. The characteristics of a public office
include delegation of sovereign functions, its
creation by law and not by contract, an oath
salary and continuance of the position. While it
• 1. Not a property right protected by the Bill
of Rights, but protected by due process [Bince
case](EMPHASIS IS THAT IT IS NOT
PROTECTED BY THE BILL OF RIGHTS IN
THAT IT CAN BE ABOLISHED WHERE YOU
CANNOT CLAIM THAT YOU WERE NOT
GIVEN PRIOR NOTICE.. HOWEVER, ONCE
THERE IS A DISPUTE BETWEEN TWO
PERSONS CLAIMING AN OFFICE, EACH
PARTY IS ENTITILED WITH DUE PROCESS
BEFORE COMELEC IN THE CASE OF A
LOCAL ELECTIVE OFFICIAL..
• 2. Not transmissible upon death [De Castro
case] FPJ CASE WHERE SUSAN ROCES WAS
MADE A SUBSTITUTE TO REPLACE FPJ IN
AN ELECTION PROTEST.. IT CANNOT BE
DONE AS IT IS NOT TRANSMISSIBLE!!
• 59. A private person constituted by the court as
custodian of property attached to secure a debt
sought to be recovered in a civil proceeding is
• A. a private sheriff.
• B. a public officer.(MAY BE HIS A PUBLIC
OFFICER FOR THAT PURPOSE ONLY)
• C. a private warehouseman.
• D. an agent of the party to whom the property
will ultimately be awarded.
• 2. Modes of Acquiring Pubic Office
• a. appointment
 • b. election
• c. succession [limited] [only when
specifically allowed by law and only in
elective positions]
• -SUCCESSION APPLIES ONLY TO SOMEONE
WHO IS ALREADY IN PUBLIC OFFICE (LGU)
• 3. Modes and Kinds of Appointment
• A. Appointment – the designation of a person
by the person or persons having authority
therefor to discharge the duties of some office
or trust.
• Can the law itself appoint? The law creates the
office and provides for the qualifications but it
cannot designate the person who is to
occupy it.
• CONSIDER APPOINTMENT AS EXECUTIVE
IN NATURE.. IT CANNOT BE EXERCISED
BY THE CONGRESS!!
Can one be appointed to a non-vacant position?
[Filling of a position where the previous occupant has
been illegally dismissed. (General Manager v.
Monserate, Apr. 17, 2002] (YOU ARE NOT ALLOWED
TO APPOINT ONE TO A NON VACANT POSITION
AS WHEN YOU FILL A POSITION WHERE THE
PREVIOUS OCCUPANT HAS BEEN ILLEGALLY
DISMISSED…. IN THE EVENT THE LATTER IS
RESTORED TO THE POSITION, THE
APPOINTMENT MADE TO THAT NEW ONE WILL BE
VOIDED!!! RESTORED EMPLOYEE IS CONSIDERED
AS NOT TO HAVE LEFT THE OFFICE FOR ANY
MOMENT!!
Exception: Anticipated vacancy, where no law
prohibits the appointment. [resignation to take
effect in the future]
• THIS HAPPENS USUALLY WHEN A REQUIRES THE
PERSON TENDERS RESIGNATION
EFFECTIVE ON SOME DATE.. PRIOR TO
THE EFFECTIVITY THEREOF, THE
APPOINTING AUTHORITY MAY APPOINT
SOMEONE TO THAT ANTICIPATED
VACANCY PROVIDED THAT NO LAW
PROHIBITS SUCH APPOINTMENT
De Rama v. CA, 353 SCRA 94 (2001)-
Can local executives appoint during the “midnight”
period provided in the Constitution?
IF WE TAKE A LOOK AT THE LGC, THERE IS NO
PROHIBITION ON MIDNIGHT APPOINTMENT..
SUCH PROHIBITION IS APPLIED ONLY TO THE
PRESIDENT!!
Appointments during election ban-
OEC, Sec. 261 (g): 45 days before a regular election and
30 days before a special election.
NOTE THE DISTINCTION OF PROHIBITION ON
MIDNIGHT APPOINTMENT AND ELECTION BAN..
• FIRST, THE NUMBER OF DAYS
• SECOND, IN CASE OF LOCAL OFFICIALS,
THE PROHIBITION OF APPOINTMENT IS
NOT ABSOLUTE AS HE CAN STILL APPOINT
DURING SUCH ELECTION BAN PROVIDED
HE IS ABLE TO PROCURE AUTHORITY
FROM THE COMELEC
Who can appoint?
The power to appoint is executive in nature.
i. President
a. by himself alone (PLENARY)
b. with the consent of the COA
c. with the recommendation of the JBC
ii. Supreme Court/Congress/Commissions/OMB
(THEY ARE AUTHORIZED TO MAKE
APPOINTMENTS)
iii. Heads of Departments/Offices/RD’s (FOR
INSTANCE THE APPOINTMENT OF
ASSISTANT PROSECUTION ATTORNEY
(APA) IS APPIOINTED BY THE SECRETARY
OF JUSTICE.. ALSO PAO LAWYERS ARE
APPOINTED BY HEAD OF PAO ATTY
ACOSTA.. RDS ARE ALLOWED TO APPOINT
FIRST LEVEL EMPLOYEES
iv. Local Executives
- locally paid employees
Barangay Chairmen:
-barangay secretary
-treasurer – not subject to CSC attestation
See Alquizola v. Ocol, 313 SCRA 273 (1999)
APPOINTMENT MADE BY PUNONG BARANGAY
CONCURRENCE OF THE
BARANGAY COUNCIL… OTHERWISE IT IS NULL
AND VOID
Some Modifications:
1. City, municipal and provincial Treasurer and
their Assistants, Local Executive nominates 3 and the
Secretary of Finance appoints from the list
2. Provincial, City or Municipal Budget Officer.
[Local Chief Executive nominates 3, and the DBM
Secretary appoints from the list---E.O. No. 112] Bar
Question 1999, No. 5]
2. Chief of Police [Chosen by the Mayor from a list
of 5 recommended by the Regional Police Director. The
Regional Director then appoints]
Andaya v. RTC, 319 SCRA 696 (1999)
The Regional Director, Police Command No. 7,
submitted a list of 5 for the Mayor to choose from. The
Mayor did not choose because he wanted someone not
in the list. The RTC ordered the Regional Director to
include the name in the list.
Held: Under Sec. 51 of RA 6975, the Mayor must
choose from the list of 5 given to him, then the
Regional Police Director appoints that person.
Mayor has no power to appoint, much less can he
require the Regional Police Director to include the
name of any officer.
c. Prohibitions on appointments [Constitution]
1. Art. IX – no designation in a temporary or
acting capacity to the 3 Commissions
2. Art. VIII – no designation of justices of the
Supreme Court and judges of lower courts to an
agency performing judicial and quasi-judicial
function
3. Art. XV – no member of the AFP in active
service shall be appointed or designated to a
civilian position
B. Designation [Acting]- (SIMPLY MEANS A
PERSON IS HOLDING A POSITION IN ACTING
CAPACITY)
Dimaandal v. COA, 291 SCRA 324 (1998)
Dimaandal, then Supply Officer III, was designated as
Acting Assistant Provincial Treasurer by the Governor.
Is he entitled to the difference in salary and allowances?
Held: The designation by the Governor is void.
Under Sec. 471 of the LGC, an Assistant Treasurer
can only be appointed by the Secretary of
Finance. Under Art. 2077 of the Administrative
Code, the appointing authority can order payment
to the employee designated or temporarily
appointed.
NOTE THAT DESIGNATION CONNOTES
ADDITIONAL DUTIES
Moreover, designation only connotes additional
duties to a person already in public service. It
does not entail the right to receive the salary for the
position.
Lessons: 1. Only the appointing authority can
designate [except if QPA applies] AS WHEN A
CITY PROSECUTOR MAY BE APPOINTED BY THE
SECRETARY OF JUSTICE IN VIEW OF THE
DOCTRINE OF QUALIFIED AGENCY!!! THE ACTS
OF THE SECRETARY ARE DEEMED TO THE ACTS
OF THE PRESIDENT!
2. One can only be entitled to the salary
If the appointing authority ALLOWS IT IN the
designation.
[3. It is temporary and one does not
enjoy security of tenure.]
President’s Power to Designate-
Administrative Code 0f 1987:
• Section 17. Power to Issue Temporary
Designation. -
• (1) The President may temporarily
designate an officer already in the
government service or any other
competent person to perform the
functions of an office in the executive
branch, appointment to which is vested in
him by law, when: (a) the officer regularly
appointed to the office is unable to
perform his duties by reason of illness,
absence or any other cause; or (b) there
exists a vacancy;
• ONLY THE PRESIDENT CAN DESIGNATE
SOMEBODY WHO IS NOT IN GOVERNMENT
SERVICE!!”ANY OTHER COMPETENT
PERSON!!”
• FOR OFFICIALS LOWER THAN THE
PRESIDENT, THEY CANNOT DESIGNATE
AN OUTSIDER..
• THE PRESIDENT CAN MAKE DESIGNATION
WHETHER OR NOT THE CONGRESS IS IN
SESSION!! DESIGNATION REQUIRES NO
CONFIRMATION!!
• (2) The person designated shall receive
the compensation attached to the
position, unless he is already in the
government service in which case he shall
receive only such additional compensation
as, with his existing salary, shall not
exceed the salary authorized by law for
the position filled. The compensation
hereby authorized shall be paid out of the
funds appropriated for the office or agency
concerned.
• (3) In no case shall a temporary
designation exceed one (1) year.
• 4. Eligibility and Qualification
Requirements
• The Constitution or the Congress, by
law, can provide for qualifications and
disqualifications.
• CONGRESS IS ALLOWED TO PROVIDE FOR
QUALIFICATIONS AS IT IS THE ONE WHO
CREATES OFFICE!!
• NOTE ALSO THE PROVISIONS IN THE
CONSTITUTION WHERE IT PROVIDES THE
QUALIFICATIONS BUT AUTHORIZES
CONGRESS TO ADD SOME MORE AS IN
THE CASE OF THE COMMISSION OF
HUMAN RIGHTS AND JUDGES IN LOWER
COURTS!!
• Juliano v. Subdio, 62 SCA 481
• Alino was appointed by the Mayor as
City Legal Officer. The CSC, however,
disapproved it on the ground that he lacked 4
years of trial work. This qualification, however,
is not found in any statute.
• Held: The CSC has no authority, not even
in the exercise of its constitutional power
“to adopt measures to promote efficiency
in government service” to add
qualifications to an office.
• Only the Constitution or the Congress, by
law, can provide for qualifications and
disqualifications.
• Limits on Congress:
• 1. The Congress cannot also provide for
narrow qualifications in such a way that
 the appointing authority is forced to • (g) all candidates for national or local
appoint one person. [Flores v. Drilon: government shall undergo a mandatory
Qualifications of the Chairman of the SBMA – He drug test. ILLEGAL!
must be the Mayor of Olongapo City.
• OBSERVATION: CRITICSM
• The principle here is that THE POWER TO
APPOINT IS DISCRETIONARY… AND IT 1. IT SEEMS LIKE IT IS NOT A
CEASES TO BE DISCRETIONARY IF THE QUALIFICATION OR DISQUALIFICATION
APPOINTING AUTHORITY IS LEFT WITH BECAUSE IT IS ONLY SAYS THAT YOU
NO CHOICE BUT TO APPOINT THE MUST UNDERGOE DRUG TESTING!! IT
RECOMENDEE! DOES NOT SAY WHAT WILL HAPPEN IF
YOU TURNED OUT TO BE POSITIVE, HOW
• 2. Unless clearly provided otherwise, the CAN YOU DECLARE IT CONSITITUTIONAL?
Congress cannot add to the qualifications insofar
as constitutional positions (FOR THE PURPOSE 2. ASSUMING THAT IT IS A
OF PRESERVING AND MAINTAINING DISQUALIFIATION AS IT SEEMS TO SAY
INDEPENDENCE OF SUCH BODIES). THAT IF YOU TURNED OUT TO BE
Pimentel v. COMELEC POSITIVE, YOU CANNOT RUN FOR ANY
POSITION, CONGRESS IS NOT
• IN THIS CASE, THE LAW PASSED BY PROHIBITED FROM ADDING
CONGRESS PROVIDED FOR THE DISQUALIFICATIONS EVEN TO
MANDATORY DRUG TESTING ON ALL CONSITITUTIONAL POSITIONS~
CANDIDATES!! HELD:
UNCONSTITUTIONAL!! YOU CANNOT ADD • IT SHOULD HAVE BEEN DECLARED ONLY
QUALIFICATION SET FORTH IN THE UNCONSTITUTIONAL IN SO FAR AS IT
CONSTITUTION!! ADDS TO THE QUALIFICATION FOR
SENATOR PROVIDED BY THE
• What about disqualifications(NEGATIVE CONSTITUTION.. HOWEVER, EMPHASIS
TRAITS THAT RENDERS YOU UNFIT TO SHOULD BE PLACED THAT IT COULD NOT
HOLD AN OFFICE)? Examples: BE ILLEGAL AS TO CANDIDATES FOR
LOCAL GOVERNMENT SINCE CONGRESS
• 1. Sec. 66 of the LGC: “The penalty of CAN ADD QUALIFICATIONS TO
removal from office as a result of an POSITIONS FOR LOCAL ELECTIVE
investigation shall be considered a bar to OFFICIALS IN LGC
the candidacy of respondent for any
elective position.” HENCE, WE ARE CRITITZCIZING WHY THE
WHOLE PROVISIONS DECLARED TO BE
• NOTE THAT CONGRESS CAN ADD UNCONSTITUTIONAL!
DISQUALIFICATIONS even to positions OF
SENATOR, PRESIDENT ETC as manifested BUT THE PRINCIPLE IS THAT CONGRESS
in the above provisions!! CANNOT ADD QUALIFICATIONS TO A
CONSTITUTIONAL POSITION!!!!! THE
• 2. BP Blg. 881:Section 12 AUTHORITY HAS ALREADY SETTLED THAT!!
Disqualifications. - Any person who has
been declared by competent authority IN PUBLIC OFFICERS THE WORD
insane or incompetent, or has been Qualifications: Used in two senses-
sentenced by final judgment for
subversion, insurrection, rebellion or for 1. as attributes or qualities of the
any offense for which he has been individual(NATURAL BORN, AT LEAST 25 YRS
sentenced to a penalty of more than OLD…)
eighteen months or for a crime involving
moral turpitude, shall be disqualified to be 2. “fails to qualify” – (FAILURE)
a candidate and to hold any office, unless
a. taking of oath [Mandiza v. Laxina,
he has been given plenary pardon or
406 SCRA 156]
granted amnesty.
b. posting of bond
• SO YOU CANNOT RUN FOR PRESIDENT IF
FALL UNDER THIS CATEGORY.. NOTE THE Art. 236 of the RPC: Anticipation of Duties
WORD DISQUALIFIED TO BE A (PUNISHABLE UNDER THIS PROVISIONS IF
CANDIDATE AND TO HOLD ANY OFFICE!! YOU ASSUME OFFICE WITHOUT TAKING AN
OATH!!
3. Revised Penal Code penalties providing
for disqualification from office in case of Usual Qualifications:
conviction.
1. citizenship, whether natural-born or naturalized,
Pimentel v. COMELEC – RA No. 9165 or dual
• Section 36. Authorized Drug Testing. –….. 2. Age
The following shall be subjected to
undergo drug testing: xxx 3. Residency (LOCAL ELECTIVE OFFICIALS)

4. Register voter
 5. Literacy ABLE TO READ AND RIGHT
6. Profession
7. Civil Service Eligibility
Disqualifications: Negative Attributes – USUALLY FOUND
IN THE CONSTITUIONS OR LAW (Constitutional or
Statutory)
1. Candidate in the immediately preceding election
[Commissions]
2. Loser in a previous election within one year [Art.
IX-B] LAME DUCK PROVISION WHERE YOU
ARE BARRD FROM BEING APPOINTED
WITHIN ONE YEAR FROM THE DATE OF
PREVIOUS ELECTION WHERE YOU LOSE!!
3. Office or emolument created/increased during
your term APPLIES TO SENATORS AND
CONGRESSMEN
4. Arising from relationship –Presidential relatives
within 4th civil degree
5. Military personnel in active service to civilian
positions [Art. XVI]
6. 2010 Bar Exam, No. XVII
7. During his campaign sortie in Barangay
Salamanca, Mayor Galicia was arrested at a PNP
checkpoint for carrying highpowered firearms in
his car. He was charged and convicted for
violation of the COMELEC gun ban. He did not
appeal his conviction and instead applied for
executive clemency. Acting on the favorable
recommendation of the Board of Pardons and
Parole, the President granted him pardon. Is he
eligible to run again for an elective position?
Explain briefly. (5%)
8. NO! HE INELIGIBLE BECAUSE THERE WAS
NO RECOMMENDATION FROM THE
COMELEC!!!! NOTE THE OFFENSE UNDER
WHICH HE WAS CONVICTED IS AN
ELECTION OFFENSE… AND THE
PRESIDENT CANNOT GRANT PARDON
WITHOUT COMELEC RECOMMENDATION..
WE ARE SETTLED WITH THIS ALREADY!!!
9. 5. Disabilities and Inhibitions of Public Officers
a. Prohibition on Conflict of Interest
10. b. Prohibition on Nepotism
11. c. Prohibition on Partisan Political Activity
12. d. Prohibition on Additional Position
13. e. Prohibition on Double Compensation
14. f. Prohibition on Practice of Profession
15. g. Prohibition on Purchase of Property
a. Prohibition on Conflict of Interest
• RA No. 6713 - SEC. 9. Divestment.-A public
official or employee shall avoid conflicts of
interest it all times. When a conflict of
interest arises, he shall resign from his
position, in any private business
enterprise within thirty (30) days from his
assumption of office and/or divest himself
of his shareholdings or interest within
sixty (60) days from such assumption.
• The same rule shall apply where the public
official or employee is a partner in a
partnership.
• Republic Act No. 6713
• (i) “Conflict of interest” arises when a
public official or employee is a member of
a board, an officer, or a substantial
stockholder of a private corporation or
owner or has a substantial interest in a
business, and the interest of such
corporation or business, or his rights or
duties therein, may be opposed to or
affected by the faithful performance of
official duty.
• Dean shared about his client, a DECS
official, who used to borrow loan from a
rural bank pursuant to an agreement for
automatic deduction of amortization in her
salary…. NO CONFLICT INTEREST THERE…
the client has no substantial interest in
such bank nor he has a share there!!!
• Another clear case of a CONFLICT OF
INTEREST is when a Mayor is the owner
of the gasoline station with which the LGU
he is administering is procuring
gasoline…. HERE CONFLICT OF INTEREST
IS VERY CLEAR!!!
• Rabe v. Flores, 272 SCRA 419:
• Court Interpreter who owned stalls in the
Panabo Public Market which she rented out.
• She is not required to divest, but she must
divulged.
• NO CONFLICT OF INTEREST THERE!!!
OWNING MARKET STALL HAS NO
RELATION WITH HER BEING A COURT
INTERPRETER, NOR CONFLICT WILL
ARISE IN THE PERFORMANCE OF HIS
DUTIES BUT SHE WAS CONVICTED FOR
FAILURE TO DIVULGE THE SAME IN THE
SALN!!!
• IN THAT INSTANCE, SHE IS NOT
REQUIRED TO DIVEST, BUT SHE MUST
DIVULGE!! OTHERWISE SALN LAW WILL
BE VIOLATED!!
2. Prohibition on Nepotism VIP
• PD 807, Section 49. Nepotism. (a) All
appointments in the national, provincial, city and
municipal governments or in any branch or
instrumentality thereof, including government-
owned or controlled corporations, made in
favor of a relative of the appointing or
recommending authority, or of the chief of
the bureau or office, or of the persons
exercising immediate supervision over
him, are hereby prohibited.
• As used in this Section, the word "relative" and
members of the family referred to are those
 related within the third degree either of
consanguinity or of affinity.
• TAKE NOTE THAT THIS INCLUDE GOCC
WITHOUT ANY DISTINCTION AS TO W/N
IT IS WITH ORIGINAL CHARTER OR NOT
IT APPLIES TO SUBSIDIARIES!!!!
Elements:
1. In favor of a relative of:
a) the appointing authority
b) the recommending authority
c) the chief of the bureau or office
d) persons exercising supervision over him
2. the appointee is a relative within the 3 rd
civil
degree
note: that the degree of relation in Nepotism is
very loose as it only covers relatives within 3rd
civil degree as distinguished to that prohibitition
on the appointment of Presidents relatives under
the constitution and that of the LCE under LGC
which are limited up to 4th civil degree which is
MORE RESTRICTIVE!!! Take note!!!
WHEN THE MAYOR APPOINTS, THE PROVISIONS
OF THE LOCAL GOVERNMENT CODE SHALL
APPLY!! IF THE PRESIDENT APPOINTS, THE
PROVISION OF THE CONSTITUTION SHALL
APPLY!
Exceptions:
(1) persons employed in a confidential capacity,
BROTHER OF THE MAYOR MAY BE APPOINTED AS
HIS ADMINSTRATOR!
(2) teachers,
(3) physicians, and
(4) members of the Armed Forces of the
Philippines
TAKE NOTE PNP IS NOT INCLUDED!!!
Debulgado v. CSC, 237 SCRA 187
Petitioner, a Mayor, appointed his wife as General
Services Officer of the City of San Carlos. It was more
of a promotional appointment as she had been in the
service for 32 years.
Held: IT IS COVERED BY THE PROHIBITION!! It
applies to all appointments, without any
distinction.
Applies
1. to original appointments and designations
and all subsequent personnel actions such as
promotion, transfer and reinstatement
(INCLUDES ACTING CAPACITY)!
2. even if marriage occurred long after one was
already in government SERVICE..
(NOTE THE PREVIOUS SLIDE, THE WIFE WAS
ALREADY IN THE GOVERNMENT SERVICE BEFORE
HE MARRIED HER)
3. without regard to actual merits of the appointee
(MEANS THAT EVEN IF YOUR WIFE IS THE MOST
QUALIFIED FOR THE POSITION OR PROMOTION,
IT IS STILL COVERED BY THE PROHIBITION!!)
CSC v. Dacoycoy, 306 SCRA 425 (1999)
Respondent was the Vocational School Administrator
of Balicuatro College of Arts and Trade. The appointing
authority, who is under respondent, appointed his 2
sons as driver and utility worker assigned with
respondent. Considering that respondent himself did
not appoint or recommend his sons, is he liable for
nepotism?
YES! AS HE FALLS UNDER THE CATEGORY d) persons
exercising supervision over him.. NOTE THAT
THOUGH THE RESPONDENT IS NOT THE
APPOINTING AUTHORITY, THE PERSONS TO BE
APPOINTED OR HIS 2 SONS WILL BE UNDER THE
RESPONDENTS SUPERVISION!!!
PRESIDENTIAL DECREE No. 198 May 25, 1973
[Water Districts]
Section 9. Appointment. - Board members shall be
appointed by the appointing authority. Said
appointments shall be made from a list of nominees, if
any, submitted pursuant to Section 10. If no
nominations are submitted, the appointing authority
shall appoint any qualified person of the category to the
vacant position.
Sec. 3 (b) Appointing authority. The person empowered
to appoint (INCLUDING THE CHAIRMAN OF THE
BOARD) the members of the board of Directors of a local
water district, depending upon the geographic coverage
and population make-up of the particular district. In the
event that more than seventy-five percent of the
total active water service connections of a local
water district are within the boundary of any city
or municipality, the appointing authority shall be
the mayor of that city or municipality, as the case
may be;
TAKE NOTE THAT THE PRESENT CHAIRMAN OF
THE BOARD OF A CITY WATER DISTRICT IS THE
WIFE OF THE LCE… APPLYING THE ABOVE
PROVISION, IT IS THE CITY MAYOR WHO IS THE
APPOINTING AUTHORITY… HENCE, THERE IS
REALLY VIOLATION OF NEPOTISM THERE!!!
Bar Question, 2011:
• 44. The School Principal of Ramon
Magsaysay High School designated Maria,
her daughter, as public school teacher in
her school. The designation was assailed on
ground of nepotism. Is such designation valid?
• A. No, because the law prohibits relatives from
working within the same government unit.
• B. Yes, because Maria’s position does not
fall within the prohibition. TEACHERS ARE
ONE OF THE EXCEPTIONS… THIS MUST BE
DISTINGUISHED IN DACOYCOY CASE AS
THE PERSONS APPOINTED THERE ARE
NOT FOR TEACHER POSITION BUT THAT
 OF A UTILITY AND DRIVER…
HAHAHAHAHA
• C. No, because her mother is not the
designating authority.
• D. No, because Maria is related to the
supervising authority within the prohibited
degree of consanguinity.
• Bar Question, 2010, XV - True or False.
• c. The rule on nepotism does not apply to
designations made in favor of a relative of the
authority making a designation. FALSE IT
APPLIES TO DESIGNATIONS!!!! TAKE
NOTE!!! IT APPLIES EVEN TO
APPOINTMENTS IN TEMPORARY
CAPACITY!!
Bar Question, 2008, XII -
• The Mayor of San Jose City appointed his
wife, Amelia, as City Treasurer from
among tree (3) employees of the city
considered for the said position. Prior to
said promotion, Amelia had been an
Assistant City Treasurer for ten (10) years,
that is, even before she married the City
Mayor. Should the Civil Service
Commission approve the promotional
appointment of Amelia? Why or why not?
• IT SHOULD BE DENIED.. IT SHOULD BE
NOTED THAT THE APPOINTING
AUTHORITY FOR THE POSITION OF CITY
TREASURER BELONGS TO THE SECRETARY
OF FINANCE… THE MAYOR OR THE LCE IS
ONLY A RECOMENDATORY OFFICER (THE
ONE WHO NOMINATES) TO SUCH
APPOINTMENT..
• GRANTING ARGUENDO THAT THE MAYOR
IS AUTHORIZED TO APPOINT FOR SUCH
POSITION, IT IS PROHIBITED BY LAW
UNDER THE DOCTRINE OF NEPOTISM!!
• c. Prohibition on Partisan Political Activity
• PD 807:
• Section 45. Political Activity. No officer or
employee in the Civil Service including
members of the Armed Forces, shall engage
directly or indirectly in any partisan political
activity or take part in any election except
to vote nor shall he use his official
authority or influence to coerce the
political activity of any other person or
body.
• Partisan Political Activities include
those intended:
• 1. To obtain support for a candidate
• 2. To undermine support for
candidate
• (IT IS REALLY CAMPAIGNING POSITIVELY
OR NEGATIVELY LIKE, TELLING PEOPLE
TO VOTE THIS GUY FOR HIS HONESTY OR
DO NOT VOTE FOR THAT GUY BECAUSE HE
IS IDIOT!! )
• It does not include:
• 1. Voting for a particular candidate
• 2. Expressing his views on current
political problems or issues,
• 3. Mentioning the names of candidates
for public office whom he supports (NO
PROBLEM WHEN WHEN WE SAY THAT WE WILL
VOTE ERAP THIS COMING ELECTION!!)
• Exempted from the Prohibition:
• 1. All elective officials [Sec. 92, LGC]
BECAUSE THEY ARE REALLY PARTISAN
POLITICAL ANIMALS!
• 2. Public officers and employees holding
political offices may take part in political
and electoral activities [holding non-career
positions: Cabinet members, co-terminus
positions] THESE CABINET MEMBERS ARE
EXPECTED TO PARTICIPATE IN POLITICAL
AND ELECTORAL ACTIVITIES TO HELP THE
APPOINTING AUTHORITY WIN THE
ELECTIONS!!!
d. Prohibition on Additional Position
Art. IX, B- 1987 Constitution:
• Section 7. No elective official shall be
eligible for appointment or designation in
any capacity to any public office or
position during his tenure.
Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall
hold any other office or employment in the
Government or any subdivision, agency or
instrumentality thereof, including Government-
owned or controlled corporations or their
subsidiaries.
FOR ELECTIVE OFFICIAL, THEY ARE ABSOLUTELY
PROHIBITED FROM HOLDING ADDITIONAL
POSITION IN THE GOVERNMENT!!!
Summary:
1. Elective official – absolutely prohibited TO HOLD
OTHER POSITIONS!!
2. Appointive –only if allowed by law and the primary
functions of his office.
Bar Question, 1995
No. 10. A City Mayor in Metro Manila was designated
as Member of the Local Amnesty Board as allowed under
the Implementing Rules of Amnesty Proclamation
34. The LAB is entrusted with the function of receiving
and processing applications for amnesty and
recommending to the National Amnesty Commission
approval or denial of the applications. The term of the
a Commission and the Local Amnesty Boards under it
expires upon the completion of its assigned tasks as may
be determined by the President.
May the City Mayor accept his designation without
forfeiting his elective position in the light of the provision
of Sec. 7, Art. IX-B of the 1987 Constitution?
THE CITY MAYOR IS ABSOLUTELY PROHIBITED
FROM HOLDING SUCH ADDITIONAL FUNCTIONS..
IN FACT, IT IS ONLY AN IRR THAT AUTHORIZES
THE DESIGNATION OF THE CITY MAYOR TO THE
LAB!! IT IS NOT EVEN ALLOWED BY THE LAW
ITSELF!! EVEN GRANTING ARGUENDO THAT ITS
IS ALLOWED BY LAW, IT DOES NOT APPLY
ELECTIVE OFFICIAL!!! IT APPLIES ONLY TO
APPOINTIVE OFFICIALS!!
e. Prohibition on Double Compensation
Art. IX, B
• Section 8. 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.]
• Pensions or gratuities shall not be considered as
additional, double, or indirect compensation.
“unless specifically authorized by law,”- IS
OBSERVED TO BE CONFUSING IN SO FAR AS
ELECTIVE PUBLIC OFFICER IS CONCERNED
BECAUSE IN THE FIRST PLACE, THEY ARE
TOTALLY PROHIBITED FROM HOLDING ANY
OTHER OFFICE!!! NOTE THAT DOUBLE
COMPENSATION CAN BE HAD ONLY IF YOU ARE
HOLDING TWO DIFFERENT POSITION ALLOWED
BY LAW!!!!!
The prohibition on double compensation
applies to public office, not private.
What about compensation from private sources?
• RA No. 6713- Section 7. Prohibited Acts
and Transactions. - In addition to acts and
omissions of public officials and employees now
prescribed in the Constitution and existing laws,
the following shall constitute prohibited acts and
transactions of any public official and employee
and are hereby declared to be unlawful:
• ( (b) Outside employment and other
activities related thereto. - Public officials
and employees during their incumbency shall
not:
• (1) Own, control, manage or accept
employment as officer, employee,
consultant, counsel, broker, agent, trustee
or nominee in any private enterprise
regulated, supervised or licensed by their
office unless expressly allowed by law;
• OTHERWISE STATED, THERE IS NO
PROHIBITION FROM GETTING
COMPENSATION FROM PRIVATE SOURCES
OR EMPLOYMENT UNLESS THE SUCH
OFFICE OR PRIVATE ENTERPRISE IS
REGULATED OR SUPERVISED OR
LICENSED BY YOUR OFFICE!!!
• FOR EXAMPLE, I CANNOT HAVE AN
INTEREST IN A COCKPIT ISSUED WITH
LICENSE BY LGU CARMEN…!!!
•
• Some considerations:
• 1. Teaching- you just secure the consent
of the head of office.. There is no problem
in private employment!
• 2. Notarization- omb prosecutors, clerk of
court are not allowed… but there are some
lawyers working in the government are
authorized to notarize like lawyers of
Philhealth and Comelec by securing permit
from appropriate agency!!
•
f. Prohibition on Practice of Profession (with
respect to double compensation in reference to
private employment): [RA No. 6713]
• Section 7. Prohibited Acts and Transactions. -
In addition to acts and omissions of public
officials and employees now prescribed in the
Constitution and existing laws, the following
shall constitute prohibited acts and transactions
of any public official and employee and are
hereby declared to be unlawful:
• ( (b) Outside employment and other
activities related thereto. - Public officials
and employees during their incumbency shall
not:
• (2) Engage in the private practice of their
profession unless authorized by the
Constitution or law, provided, that such
practice will not conflict or tend to conflict
with their official functions;
• Congressmen and Senators are authorized
by the constitution to practice law
provided they do not appear before a court
• “provided, that such practice will not
conflict or tend to conflict with their
official functions”– does not refer to
conflict of interest… it is more broader..
For instance, you practice law at day
time!! It will conflict you time which
should have been devoted to public office..
• A clerk of court cannot make pleadings or
legal advises without without a law
authorizing the same.. Best way to
practice law for a COC is to seek
permission from COURT ADMINSTRATOR
• LGC, Section 90. Practice of Profession (IN
THE LOCAL GOVERNMENT UNIT). -
• (a) 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.
• (b) Sanggunian members (including Vice
Mayor since he is a member of the SB SP)
may practice their professions, engage in
any occupation, or teach in schools except
during session hours: Provided, That
sanggunian members who are also
members of the Bar shall not:
 • (1) Appear as counsel 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;
• (2) 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.
• (3) Collect any fee for their appearance in
administrative proceedings involving the
local government unit of which he is an official;
and xxx
• (c) Doctors of medicine may practice their
profession even during official hours of
work only on occasions of emergency:
Provided, That the officials concerned do not
derive monetary compensation therefrom.
g. Prohibition on Purchase of Property
• 1. Art. 1492, Civil Code - Art. 1491. The
following persons cannot acquire by purchase,
even at a public or judicial auction, either in
person or through the mediation of another:
(4) Public officers and employees, the property of the
State or of any subdivision thereof, or of any
government-owned or controlled corporation, or
institution, the administration of which has been
intrusted to them; this provision shall apply to judges
and government experts who, in any manner
whatsoever, take part in the sale;
• (5) Justices, judges, prosecuting
attorneys, clerks of superior and inferior
courts,and other officers and employees
connected with the administration of
justice, the property and rights in litigation or
levied upon an execution before the court within
whose jurisdiction or territory they exercise their
respective functions; this prohibition includes
the act of acquiring by assignment and shall
apply to lawyers, with respect to the property
and rights which may be the object of any
litigation in which they may take part by virtue
of their profession.
• 6. Powers and Duties of Public Officers
• In a democratic and republican
government, soverignty or power resides in the
people. But we delegated its exercise to our
elected representatives and some appointed
officials.
• Sources of power:
• 1. Constitution
• 2. Statutes
• Classification of Power:
• 1. Ministerial –.
• One which a person performs on a
given statement of facts, and in a
prescribed manner, in obedience to the
mandate of law, without regard to, or the
exercise of, his own judgment, upon the
propriety or impropriety of the act done.
• 2. Discretionary –
• One that requires the exercise of
reason in the adoption of the means to an
end, and discretion in determining how
and when the act may be done or the
course pursued. Discretion in the manner
of the performance of an act arises when
the act may be performed in one or two or
more ways, either of which would be
lawful, and where it is left to the will or
judgment of the performer to determine in
which way it will be performed. [policy
making or judgment]
• Important in:
• 1. distinction between officer and an
employee ::: OFFICER exercises discretion
while EMPLOYEE only exercises ministerial
duties
• 2. applying presumption of regularity in
the performance of official functions::: the
PRESUMPTION OF REGULARITY IN THE
PERFORMANCE OF OFFICAL FUNCTIONS
APPLIES ONLY TO MINISTERIAL DUTIES
AND NOT TO DISCRETIONARY ONE
• 3. susceptibility to delegation-
MINISTERIAL DUTIES CAN BE DELEGATED
BUT NOT DISCRETIONARY DUTIES!!
Examples:
1. Clerk of Court/Judge (CLERK OF COURT HAS NO
DISCRETION W/N TO ACCEPT PLEADINGS!!! HIS
POWER IS ONLY MINISTERIAL!! IF THERE IS
DEFECT TO THE PLEADINGS, IT IS ADDRESSED
TO THE SOUND DISCRETION OF THE JUDGE!!..
COC CANNOT REFUSE TO RECEIVE PLEADING ON
THE GROUND OF DEFECT)
2. Power of the President to appoint a Chief Justice..
IT MUST BE DISTINGUISHED .. IT IS
MINISTERIAL IN THE SENSE THAT HE HAS TO
APPOINT UPON SUBMISSION OF THE JBC
RECOMMENDATION.. IT IS DISCRETIONARY IN
THE SENSE THAT HE EXERCISE DISCRETION AS
TO WHO SHOULD BE APPOINTED!!
3. 1989 Bar Question, [summarized] No. 17. Can the
City Mayor of Manila delegate his power to issue
subpoena (HERE THE CITY OF MANILA IS
AUTHORIZED BY ITS CHARTER TO ISSUE
SUBPEONA!!)in the course of investigation to a
Committee? See Carmelo v. Ramos, 6 SCRA 836- THE
SAME CANNOT BE DELEGATED AS SUCH POWER
IS DISCRETIONARY IN NATURE!! HOWEVER IN
COURT, THE POWER TO ISSUE SUBPEONA BY THE
CLERK OF COURT IS MINISTERIAL… ONCE IT IS
ASKED, HE MUST ISSUE THE SAME!!!
Bar Question, 2011
54. When the Civil Service Commission (CSC)
approves the appointment of the Executive
Director of the Land Transportation Franchising
and Regulatory Board who possesses all the
prescribed qualifications, the CSC performs
• A. a discretionary duty.
 • B. a mix discretionary and ministerial duty.
• C. a ministerial duty. NOTE THAT ONCE AN
APPOINTED EMPLOYEE MEETS THE
MINIMUM QUALIFICATION FOR THE
POSITION APPLIED , THE CSC HAS TO
APPROVE THE SAME. IT IS MINISTERIAL
AS WE WILL LEARN LATER ON CSC
PROVISIONS
• D. a rule-making duty.
• Bar Question, 2010, No. 15
• True or False.
• C. A discretionary duty of a public officer is
never delegable. (0.5%) TRUE! FOR
INSTANCE THE JUDGE CANNOT DELEGATE
HIS POWER TO ISSUE WARRANTS OR TO
RENDER DECISIONS
• Duties of Public Officers: RA No. 6713
• 1. Disclosure of assets/liabilities and net
worth
• 2. Act promptly on letters and requests [15
days] OTHERWISE HE WILL BE LIABLE
ADMINISTRATIVELY AND CRIMINALLY!!
• 3. Make documents accessible to the public
THIS HAS REFERENCE TO THE RIGHT TO
INFORMATION ON MATTERS OF PUBLIC
CONCERN
• 7. Rights of Public Officers
a. To form organization
• b. To compensation
• c. To vacation, sick and maternity leave
• d. To retirement benefits
• Right to organize
-guaranteed by Sec. 8 of the Bill of Rights, “including
those in the public and private sectors.
-but no labor-management committees for AFP, PNP,
Jail Guards and Firemen-
Bar Question, 2000
No. 12: Are employees in the public sector allowed to
form unions? To strike? Why? THE RIGHT TO FORM
UNION IS GUARANTEED BY THE
CONSTITIUTION!!! BUT NOT YET TO STRIKE AS
PROVIDED FOR BY LAW
b. To compensation
-the right to compensation springs from law,
not from contract, unlike in private employment.
[no strike to improve terms and conditions of
employment] THERE IS NO RIGHT TO STRIKE
BECAUSE THE TERMS AND CONDTIONS OF
EMPLOYMENT OF PUBLIC OFFICERS ARE FIXED
BY LAW!!!
-Requisites for right:
1. legal title
2. law fixing compensation
Protections ON SALARY!!:
1. cannot be garnished or attached or executed
to satisfy a judgment BECAUSE
- in the hands of the disbursing officer, it is still
government funds
-forbidden by public policy because it is fatal to
public service.. OFFICIALS AND EMPLOYEES MAY
NO LONGER BE WILLING TO WORK!!
-garnishment or attachment is tantamount to a suit
against the state
2. Assignment of anticipatory salary is void.
c. To vacation, sick and maternity
leave,disability and funeral benefits
1. LGC, Sec. 81- Elective officials are entitled to the
same leave privileges as appointive local officials
2. Administrative Code, Bk. IV, Ch. 5, Sec. 27- leave
without pay not beyond one year
LEAVE WITH OR WITHOUT PAY CANNOT GO
BEYOND 1 YEAR.. OTHERWISE, YOU CAN BE
DROPPED WITHOUT NOTICE AND HEARING!!!
THAT IS CONSIDERED ABANDONMENT!!
d. To retirement benefits
To be entitled to pension:
1. at least 60 years, and
2. at least 15 years in government service
Rabor v. CSC, 244 SCRA 625 (1995)
-Rabor was a utility worker in the Office of the City
Mayor of Davao. He entered government service when
he was 55 years old. Upon reaching 68 years old and 7
months, he was advised to retire. He showed a GSIS
Certificate of Membership with a notation “service
extended to comply with 15 years service
requirements.” After reaching 65, how long can one
extend?
CSC-MC- No. 27, Series of 1990 /MC No. 37, S, 1992]
See also Toledo v. COMELEC, 319 SCRA 100 (1999) –
[Cena Docrtine]
CSC CIRCULAR PROVIDES THAT IN NO CASE
SERVICE EXTENSION EXTEND IN ONE YEAR!!!
HENCE, ONLY 1 YEAR IS ALLOWED TO BE
EXTENDED TO COMPLETE 15 YEAR SERVICE
8. Liabilities of Public Officers
a. Preventive Suspension and Back Salaries
b. Illegal Dismissal, Reinstatement and Back
Salaries
Liabilities:
3-Fold Liability Rule – It is possible for a public
official to be liable criminally, civilly and administratively
for his acts or inaction. DOUBLE JEOPARDY DOES
NOT APPLY HENCE, IN A SINGLE ACT, YOU CAN
BE HELD LIABLE FOR THE ANTI GRAFT LAW,
CIVIL SERVICE LAW AND CIVIL DAMAGES
General principle : Public Officials are not liable for
official acts done in good faith. [Ynot v. IAC –
enforcement of an unconstitutional law]]
YNOT- A DECREE OF MARCOS PROHIBITING THE
TRANSFER OF CARABAOS WHICH WAS LATER
DECLARED UNCONSTITUTIONAL!!.. YNOT WAS
ENFORCING THE LAW CONFISCATING MEATS..
CAN HE BE HELD LIABLE FOR ENFORCING A LAW
DECLARED UNCONSTITUTIONAL? NO!! BECAUSE
PRIOR TO ITS DECLARATION OF
UNCONSTITUTIONALITY, THE PRESUMPTION IS
THAT IT IS VALID!! HENCE, HE CANNOT BE HELD
LIABLE!!
Conversely, they are liable for acts done in bad
faith, or in excess of their function, if it results to
injury to third persons
a. Preventive Suspension and Back Salaries
Who can impose?
1. Civil Service Commission 90 DAYS
2. Ombudsman NOT EXCEEDING 6 MONTHS
3. Any Disciplining Authority 90 DAYS!!
NOTE THAT THE DISCIPLINING AUTHORITY
WITH RESPECT TO ERRING LOCAL ELECTIVE
OFFICIALS IS ONLY 60 DAYS!!
1. Civil Service Law [PD NO. 807]
• Section 41. Preventive Suspension. The proper
disciplining authority may preventively suspend
any subordinate officer or employee under his
authority pending an investigation, in 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 the service.
• EVEN BEFORE FILING OF ANSER
• NOTE THAT THERE IS NO REQUIREMENT
THAT THE ISSUES BE JOINED BEFORE THE
LOCAL APPOINTIVE OFFICIAL CAN BE
PREVENTIVELY SUSPENDED AS
DISTINGUISHED FROM LOCAL ELECTIVE
OFFICIAL!!
• PREVENTIVE SUSPENSION MAY BE
IMPOSED EVEN BEFORE THE FILING OF
THE ANSWER BY THE RESPONDENT!!
• Section 42. Lifting of Preventive Suspension
Pending Administrative Investigation. When the
administrative case against the officer of
employee under preventive suspension is
not finally decided by the disciplining
authority within the period of ninety (90)
days after the date of suspension of the
respondent who is not a presidential
appointee, the respondent shall be
automatically reinstated in the service:
Provided, That when the delay in the
disposition of the 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.
• 90 DAYS UNLESS DELAY IS DUE TO FAULT
OF RESPONDENT
2. Ombudsman Act [RA No. 6770]
• Section 24. Preventives Suspension. — The
Ombudsman or his Deputy may preventively
suspend any officer or employee under his
authority pending an investigation, if in his
judgment the evidence of guilt is strong, and (a)
the charge against such officer or employee
involves dishonesty, oppression or grave
misconduct or neglect in the performance of
duty; (b) the charges would warrant removal
from the service; or (c) the respondent's
continued stay in office may prejudice the case
filed against him.
• The preventive suspension shall continue
until the case is terminated by the Office
of the Ombudsman but not more than six
(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
herein provided.
• [MAXUMUM OF 6 MONTHS]
• TAKE NOTE THAT EVEN LOCAL ELECTIVE
OFFICIALS CAN BE PREVENTIVELY
SUPENDED BY THE OMB FOR A PERIOD
NOT EXCEEDING 6 MONTHS
• NOTE ALSO HERE THAT THE OMB CAN
IMPOSE PREVENTIVE SUSPENSION
WITHOUT HAVING THE ISSUES JOINED..
OTHERWISE STATED, IT CAN BE IMPOSED
WITHOUT WAITING THE ANSWER OF THE
RESPONDENT!!
• NOTE THAT THE REQUIREMENT THAT THE
ISSUES MUST BE JOINED BEFORE
PREVENTIVE SUSPENSION MAY BE
IMPOSED APPLIES ONLY TO LOCAL
ELECTIVE OFFICIALS WHICH MUST NOT
BE MORE THAN 60 DAYS WHERE THE
DISCIPLINING AUTORITY IS THE
SANGGUNIAN OR THE LCE
• Garcia v. Mojica, 314 SCRA 207 (1999)- OMB
can preventively suspend even before the
filing of an answer. It is merely a
preliminary step in an administrative
investigation and not the final
determination of the guilt of the official
• Note: The requirement that respondent
has filed his answer seems to apply only to
elective officials, where the disciplining
authority is either the Sanggunian or the
Office of the President.
• As to them, preventive suspension is
only 60 days
• Back Salaries: Entitled
 • 1. RA No. 3019 [which applies to
preventive suspension in criminal cases] has a
provision that the employees or officer is
entitled to his salaries in the event of
acquittal.
• REMEMBER THAT COURT IS ARE
MANDATED TO IMPOSE PREVENTIVE
SUSPENSION FOR OFFICIALS FACING
CRIMINAL CASES FOR VIOLATION OF
ANTI-GRAFT LAW….
2. Local Government Code (PREVENTIVE
SUSPENSION UNDER LGC)-
Section 64. Salary of Respondent Pending
Suspension. - The respondent official preventively
suspended from office shall receive no salary or
compensation during such suspension; but upon
subsequent exoneration and reinstatement, he
shall be paid full salary or compensation including
such emoluments accruing during such
suspension.
• HENCE, ENTITLED TO BACK WAGES UNDER
LGC!!
Not Entitled: OMB PREVENTIVE SUSPENSION
1. For preventive suspension by OMB [6
months], the law is clear that it is “without pay”.
Obiter: Gloria v. CA, 306 SCRA 287 (1999)
• NO BACKWAGES EVEN IF YOU ARE
ACQUITTED!! PLEASE TAKE NOTE OF
THIS!!!
• THE PRINCIPLE SEEMS TO BE “NO WORK
NO PAY!!!”
2. For preventive suspension under the Civil
Service Law, the rule is that a public officer or
employee is not entitled to compensation,
regardless of the outcome of the case. This is
based on the principle that one is entitled to
compensation only for services actually rendered.
[Civil Service Law is silent]
• AS A SUMMARY.. YOU ARE NOT ENTITLED
TO BACKWAGES DURING PREVENTIVE
SUSPENSION IN THE FOLLOWING:
1. OMB
2. CSC
• THIS IS BECAUSE THE CSC LAW IS SILENT
AS TO W/N YOU ARE ENTITLED TO BACK
WAGES IN THE EVENT OF ACQUITTAL!!!
• Exception TO CSC RULE ON BACKWAGES:
• Bangalisan v. CA, 276 SCRA 631-
• “if he is found innocent of the charges
which caused his suspension and if his
suspension is unjustified.”
• EXAMPLE FOR THIS SITUATION IS WHEN
YOU ARE PREVENTIVELY SUSPENDED FOR
A MINOR OFFENSE OR FOR A GROUND
NOT AMONG THOSE STATED BY CSC LAW!!
• TAKE NOTE OF THIS!!!
• IN SUMMARY WITH RESPECT TO
PREVENTIVE SUSPENSION UNDER CSC..,
YOU ARE NOT GENERALLY NOT ENTITLED
TO BACKWAGES.. EXCEPTION!! WHEN YOU
ARE ACQUITTED AND THERE IS A
PRONOUNCEMENT THAT YOUR
SUSPENSION IS UNJUSTIFIED OR THE
SAME WAS WITHOUT BASIS!!
b. Illegal Dismissal, Reinstatement and Back
Salaries
What happens if you were found guilty, the
decision is executory, but you appealed and the decision
was reversed?
SUSPENSION PENDING APPEAL
NOTE THAT THERE ARE TWO KINDS OF
PREVENTIVE SUSPENSION…
1. ONE BEFORE CONVICTION OR PENDING
INVESTIGATION! 90 DAYS OR 6 MONTHS
2. ONE THAT WHICH IS AFTER THE
CONVICTION OR SUSPENSION PENDING
APPEAL (THIS CAN LAST FOR YEARS)
THIS HAS NOT RELATION TO PREVENTIVE
SUSPENSION.. THIS IS MORE ON THE SITUATION
WHERE I AM FOUND GUILTY AND NECESSARILY
SUCH DECISION IS IMMEDIATELY EXECUTORY..
PENDING OF MY APPEAL TO SUCH DECISION
AND AFTER SO MANY YEARS LATTER IS
REVERSED.. AM I ENTITLED BACKWAGES
DURING THE SUSPENSION PENDING APPEAL?
Gloria v. CA, 306 SCRA 287 (1999)
There are two kinds of preventive suspension of civil
service employees:
1. Preventive suspension pending investigation
(Sec. 51)
2. Preventive suspension pending appeal
An employee is entitled to payment of salaries for the
period of suspension pending appeal if he is found
innocent. The reason for the difference is that
preventive suspension (pending INVESTIGATION)
is not a penalty but only a means to enable the
disciplining authority to conduct an investigation.
However, preventive suspension pending appeal is
actually punitive although it is in effect considered illegal
if respondent is exonerated and the decision finding him
guilty is reversed. On the other hand, of his conviction
is affirmed, the period of his suspension becomes part of
the penalty.
• OTHERWISE STATED, IF YOU ARE
SUSPENDED PENDING APPEAL AND IN
THE END YOU ARE ACQUITTED , YOU ARE
ENTITLED TO SALARIES DURING SUCH
SUSPENSION PENDING APPEAL BECAUSE
YOU ARE REALLY INNOCENT!!
• Marombhombsar v. CA, 326 SCRA 62 (2000)
• “Such back wages, however, had been
limited by earlier decisions to a maximum
 period of five (5) years.”- REFERS TO
SUSPENSION PENDING APPEAL!!
• Bar Question, 2011
• 5. Mario, a Bureau of Customs’ examiner, was
administratively charged with grave misconduct
and preventively suspended pending
investigation (FIRST TYPE OF PREVENTIVE
SUSPENSION!!). The head
• of office found him guilty as charged and
ordered his dismissal. The decision against
him was executed pending appeal. The
Civil Service Commission (CSC)
• subsequently found him guilty and after
considering a number of mitigating
circumstances, reduced his penalty to only
one month suspension. Is Mario entitled to
back salaries?
• A. Yes, the reduction of the penalty means
restoration of his right to back salaries.
• B. No, the penalty of one month suspension
carries with it the forfeiture of back salaries.
• C. No, he is still guilty of grave
misconduct, only the penalty was reduced.
NOTE THAT HE WAS NOT ACQUITTED.. HE
WAS STILL FOUND GUILTY ONLY THAT
THE PENALTY WAS REDUCED.. SAME
PRINCIPLE ALSO APPLIES WHEN
CONVICTED BUT UPON APPEAL, HE IS
ONLY REPRIMANDED…..
• D. Yes, corresponding to the period of his
suspension pending appeal less one month.
Bar Question, 2011/Also asked in 2001, No. 15
Bar Question, 2009
• X. Maximino, an employee of the Department of
Education, is administratively charged with
dishonesty and gross misconduct. During the
formal investigation of the charges, the
Secretary of Education preventively suspended
him for a period of sixty (60) days. On the 60th
day of the preventive suspension, the Secretary
rendered a verdict, finding Maximino guilty, and
ordered his immediate dismissal from the
service.
• Maximino appealed to the Civil Service
Commission (CSC), which affirmed the
Secretary's decision. Maximino then elevated the
matter to the Court of Appeals (CA). The CA
reversed the CSC decision, exonerating
Maximino. The Secretary of Education then
petitions the Supreme Court (SC) for the review
of the CA decision.
• [a] Is the Secretary of Education a proper party
to seek the review of the CA decision
exonerating Maximino? Reasons. (2%)
PREVAILING JURISPRUDENCE HAS IT
THAT ANY PARTY TO THE PROCEEDINGS
CAN APPEAL INCLUDING THE
GOVERNMENT!! HENCE SECRETARY OF
EDUCATION IS A PROPER PARTY!!
• [b] If the SC affirms the CA decision, is
Maximino entitled to recover back salaries
corresponding to the entire period he was out of
the service? Explain your answer. (3%)
HE IS ENTITLED ONLY THAT PORTION
CORRESPONDING THE DURATION OF THE
SUSPENSION PENDING APPEAL BUT IT MUST
NOT EXCEED TO THE PERIOD OF 5 YEARS!!

• 33. X, an administrative officer in the

Department of Justice, was charged with grave
misconduct and preventively suspended for 90
days pending investigation. Based on the
evidence, the Secretary of Justice found X
guilty as charged and dismissed him from
the service. Pending appeal, X's dismissal was
executed. Subsequently, the Civil Service
Commission (CSC) reversed the
Secretary’s decision and the reversal
became final and executory. What is the
effect of X's exoneration?

• A. X is entitled to reinstatement and back

salaries both during his 90 day preventive
suspension and his suspension pending appeal.

• B. X is entitled to reinstatement and back

salaries corresponding only to the period of
delay caused by those prosecuting the case
against him.

• C. X is entitled to reinstatement but not to back

salaries on ground of “damnum absque injuria.”

• D. X is entitled to reinstatement and back

salaries during his suspension pending
appeal.