2016 Public Officers & Corporation 4th yr Review
July 1, 2016
Elements of a public office
1. created by law or ordinance authorized
by law.
2. invested w/some sovereign functions of
government to be exercised for public
interest.
3. functions must be defined expressly or
impliedly by law, exercised by an officer
directly under the control of the law.
4. permanency or continuity
We define public office as a right or duty created
or conferred by the law or serving at the pleasure
of the appointing authority, by which for a given
fixed period a person is vested with sovereign
powers and functions to promote public interest.
The functions and exercise must be defined by
law, expressed by the individual directly under the
rule of law. Basically of the office as these
important elements it should be created by
law/ordinances. There must be a sense of
continuity or permanency.
Delegation of sovereign functions of government
is most important characteristic to determine
whether a position is a public office or not. The
NCC, created under AO 223 to make nationwide
preparations for the celebration of Phil.
Centennial of the declaration of the Philippine
Independence, performs sovereign functions. It is
a public office and its Chair is a public officer
even if he does not receive any compensation.
Salary is mere incident and forms no part of the
office. It is an honorary office but nonetheless a
public office.(Laurel vs. Desierto, 381 SCRA 48)
[implements Sec. 15, Art. XlV]
And in the case again of Laurel vs Dierto,, this has
been ask the issue whether or not Laurel should
be considered a public officer, he was made the
chair of the National Centennial Commission
created under and administrative order. It is
charged with the responsibility of preparing for
the celebration of the Philippine Centennial
Independence and so should he be considered a
public officer in the light of the fact that he was
not receiving any salary from the government,
they argued otherwise considering part from the
fact that he was not receiving anything from the
government you know his office was merely
temporary. The main characteristic in determining
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whether a person should be considered a public
officer is if he is conferred powers of government if
his given such authority to discharged public
functions he should be considered a public officer
regardless of whether or not he or she is receiving
salary or any form of compensation from
government there is such thing as a this honorary
naked office by virtue of this the individual may
not be receiving anything from the government.
A salary is usual but not a necessary criterion for
determining the nature of the position. It is not
conclusive. Where a salary or fees is annexed, the
office provided for, it is naked or honorary office,
and is supposed to be accepted merely for the
public good.
Take note of the public function, the nature of this
office and that is really to implement a policy,
national policy embodied in the constitution
Article 14 Section 15, the need for state to
promote Arts & letters and so therefore the state
must promote the historical heritage, historical -
agricultural heritage. Thus, this is indeed a public
function and therefore Laurel should be
considered a public officer. Again that
compensation is not part of the public office it is
simply instant to the office. It is immaterial that
there is a specific compensation from the
government. The important consideration is
whether or not the basis of such grant of power,
the same is unvested with sovereign functions of
the government.
The case of Figueroa, “Membership in the market
committee did not vest on complainant any
sovereign function of government. Operation of a
market is not a governmental function but one
done by the city in its private proprietary
capacity“. Mr. Figueroa was the member of the
public market committee and so issued whether
he should be considered a public officer you
know this time require a libel suit against Article
and the question is whether or not it should be
considered as a privileged communication one,
conditions of the fact that he is a first committee
member should be considered a public officer.
Take note in your study of public corporation a
local government unit or public corporation has
two full features governmental and proprietary in
the discharge of a proprietary function. In this
case Rivera was made a member of this public
 2016 Public Officers & Corporation 4th yr Review
market committee in his capacity as the
representative of the market vendors association
and not be considered a public officer.
Private sector membership in NBDB does not take
petitioner outside the meaning of public officer as
she performs public functions in pursuance of the
objectives of RA 8047. The NBDB is created to
ensure the full development of the book
publishing industry (Javier vs. Sandiganbayan,
599 SCRA 325).
In the Carolina Javier vs SB a petitioner to be
considered upon the officer chief failed to
liquidate cash advances she incurred supposedly
for a profit growth which did not pushed through
but nonetheless she failed to liquidate the cash
advance. She was charged before
Sandiganbayan and she appealed that her
membership in the national book development
board is by virtue of her being the representative
of a private sector in this board. Again the basic
issue would be what is the nature of the powers
conferred to the national book development
board. Can the national book development
board established in order to carry out a
governmental policy that is to ensure the full
development of a book publishing in the State.
Therefore the public nature of this office and so
we that she ought to be entitled as a public
officer, private sector membership of the national
book development board does not take her out
of the meaning of this public concern because
she was performing public duties in order to carry
out the aims of RA 8870 or the Food Development
in the Philippines.
Petitioner, a government scholar-senior student of
the UP-Cebu and appointed to serve as a student
regent in the Board of Regents of UP-Diliman, can
be charged with estafa before the
Sandiganbayan for misappropriating P15M
intended for the renovation of the Vinzons Hall
Annex-Diliman. She is a public officer within the
purview of Sec. 4(A)(1) (g) of PD 1606, as
amended, vesting the Sandiganbayan with
jurisdiction over trustees xxx of GOCCs, state
universities xxx (Hannah Eunice Serana vs.
Sandiganbayan and PP, GR 162059, 22 January
2008).
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The case of Serana vs Sandiganbayan. A student
of the UP school, scholar, she got appointed as a
student regeant of the board in UP Diliman and in
such capacity she received the amount of 15
million intended for the renovation of the
Vincent’s Hall Annex Diliman. However, there was
no such and so she was made to account and
she was charged as a public officer. Now she
knew that she was merely a student, a scholar,
she was not receiving anything from the
government but nonetheless again take note she
was made appointed as a member of the board
of allegiance of the UP and therefore because of
her failure to account for the 15 million she
received, therefore she should be charged estafa
before the Sandiganbayan. 16:56 mins
Now you should be familiar with the jurisdiction of
the Sandiganbayan. Presidential Decree 1606 as
amended by PD 1861 further amended by
Republic Act 7975 then you have RA 8249 and the
latest RA 10660.
How would you determine whether the officer
falls within the jurisdiction of the Sandiganbayan?
You know Sandiganbayan is the Anti- Graft Court.
Generally the high- ranking officials and as
defined under this law high ranking generally is
Salary Grade 27 and above. But there might be
positions as enumerated under Section 4 of this
law not necessarily salary grade 27 or above. If
any of those enumerated even if falling below SG
27 for example department head of the local
government, city government, provinces he or
she should be considered as high-ranking official.
The general rule, of course high ranking,
committing an offense in relation to office.
Now here in the case Serana, the important ways
of this law applicable to her is this section 4,
paragraph g, providing that the Sandiganbayan
has authority, jurisdiction over the presidents, the
trustees, the directors, managers of government
owned and control corporations, state universities
and educational institutions. So her position,
trustee is one of those stated in Section 4 even if
she was merely a student.
Section 4, RA 10660
SEC. 4. Jurisdiction. – The Sandiganbayan shall
exercise exclusive original jurisdiction in all cases
involving:
 2016 Public Officers & Corporation 4th yr Review
“a. Violations of Republic Act No. 3019, as
amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII, Book II of the Revised
Penal Code, where one or more of the accused
are officials occupying the following positions in
the government, whether in a permanent, acting
or interim capacity, at the time of the commission
of the offense:
“(1) Officials of the executive branch occupying
the positions of regional director and higher,
otherwise classified as Grade ’27’ and higher, of
the Compensation and Position Classification Act
of 1989 (Republic Act No. 6758), specifically
including:
“(a) xxx
“(e) xxxx
“(g) Presidents, directors or trustees, or managers
of government-owned or controlled corporations,
state universities or educational institutions or
foundations.
Xxx (full list below on the discussion of SB)
The creation of the Phil. Truth Commission as an
adhoc body under EO 1 finds basis in Sec. 17, Art.
Vll (Const.) imposing on President the duty to
ensure that laws are faithfully executed. PTC is not
borne out of a restructuring of the O.P. under Sec.
31 Bk. lll EO 292. Power of control is different from
power to create a public office. The former is
inherent in the Executive, while the latter has
basis from either a valid delegation from
Congress or his inherent duty to faithfully execute
the laws. The President’s power to conduct
investigations to aid him in ensuring faithful
execution of laws is inherent in the President’s
power as Chief Executive. (Lagman vs. Ochoa &
Biraogo vs. PTC, December 7, 2010)
Of course again this been asked in the bar the
case of Lagman v. Ochoa & Biragao v. PTC, on
the creation of the Philippine Truth Commission.
They questioned what is the basis, what is the
legal authority to sustain the creation of this
commission by the president.
Generally, the power to create a public office is
legislative. The other question, related issue is,
does the president have the power to create a
public office? What therefore would be the basis
to sustain the creation by the president of the
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Philippine Truth Commission by simply assuming,
accepting executive order no. 1?
Take note an important distinction, there are 2
concepts in Section 17, Art. VII of the Constitution.
1st one the power of control the president the
power to control over all departments, bureaus
and offices. The 2nd part would be the duty on the
part of the president to ensure the faithful
observance, execution of the laws.
And so the basis for the president in creating the
commission is not its doctrine of control or its
power of control because it applies only to those
offices already existing. The basis therefore is the
other part, the obligation of the president to
ensure that laws are faithfully executed. So if there
is a breach or violation of these laws it is
incumbent upon the president to of course to
conduct investigation and in order to get out of
this he may have to create this commission for the
purpose of conducting investigation on against
violation of the laws by officials in the executive
branch. The truth commission therefore is not a
creation on basis of the authority of the president
to restructure. As I have said earlier, the power to
make a public office is legislative and so the
congress may pass a law conferring this
delegated authority to (let us say) the president
has the authority in restructuring of offices under
the Administrative Code, revised EO 292 Section
31 book 3 on the (acts of the President which
relate to particular aspects of governmental
operations in pursuance of his duties as
administrative head shall be promulgated in
administrative orders). So in the part of the
president in restructuring of offices but in this case
the basis of the creation of this commission is in
relation to the faithful execution of compliance of
laws. There is therefore this distinction between
power of control and the power to create a
public office. The power to control is executive,
immediate. no other has the power of control
under the constitution but the president. The
power to create a public office is legislative by
passage of laws by the congress conferring such
power or the other option will be the 2nd part of
Article 7 Section16 on the inherent duty of the
president to execute faithfully the laws.
To say that the PTC is borne out of a
restructuring of the Office of the President under
 2016 Public Officers & Corporation 4th yr Review
Section 31 is a misplaced supposition, even in the
plainest meaning attributable to the term
restructure an alteration of an existing
structure. Evidently, the PTC was not part of the
structure of the Office of the President prior to the
enactment of Executive Order No. 1. As held
in Buklod ng Kawaning EIIB v. Hon. Executive
Secretary,[46]
But of course, the list of
legal basis authorizing the
President to reorganize any
department or agency in the
executive branch does not have
to end here. We must not lose sight
of the very source of the power
that which constitutes an express
grant of power. Under Section 31,
Book III of Executive Order No. 292
(otherwise known as the
Administrative Code of 1987), "the
President, subject to the policy in
the Executive Office and in order
to achieve simplicity, economy
and efficiency, shall have the
continuing authority to reorganize
the administrative structure of the
Office of the President." For this
purpose, he may transfer the
functions of other Departments or
Agencies to the Office of the
President. In Canonizado v.
Aguirre [323 SCRA 312 (2000)], we
ruled that reorganization "involves
the reduction of personnel,
consolidation of offices, or
abolition thereof by reason of
economy or redundancy of
functions." It takes place when
there is an alteration of the existing
structure of government offices or
units therein, including the lines of
control, authority and responsibility
between them. The EIIB is a bureau
attached to the Department of
Finance. It falls under the Office of
the President. Hence, it is subject
to the Presidents continuing
authority to reorganize. [Emphasis
Supplied]
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In the same vein, the creation of the PTC is not
justified by the Presidents power of control.
Control is essentially the power to alter or modify
or nullify or set aside what a subordinate officer
had done in the performance of his duties and to
substitute the judgment of the former with that of
the latter. Clearly, the power of control is entirely
different from the power to create public offices.
The former is inherent in the Executive, while the
latter finds basis from either a valid delegation
from Congress, or his inherent duty to faithfully
execute the laws. While the power to create a
truth commission cannot pass muster on the basis
of P.D. No. 1416 as amended by P.D. No. 1772, the
creation of the PTC finds justification under
Section 17, Article VII of the Constitution, imposing
upon the President the duty to ensure that the
laws are faithfully executed. Section 17 reads:
Section 17. The President
shall have control of all the
executive departments, bureaus,
and offices. He shall ensure that
the laws be faithfully
executed. (Emphasis supplied).
Still on PTC
• PTC will not supplant OMB or DOJ.
• Pres. has power to create PTC as an
ad-hoc body to investigate reports
of graft
• Also, there is no usurpation by
Executive of Congress’ power to
appropriate funds for operation of a
public office. There is no
appropriation but only an allotment
or allocation of existing funds
already appropriated. But EO 1 is
unconstitutional as it violates the
equal protection clause as it singles
out reports of graft & corruption in
previous administration of GMA.
Another issue raised the Dept. of Justice
supplanted by in a way temporary part of
planning, regulatory nature, we avoid to conduct
investigation to the president unlike the
ombudsman, the dept. of justice the president
therefore has the authority in order to escape any
forms of graft & corruption. The president has the
authority to create the truth commission. It should
be stressed that the purpose of allowing ad
 2016 Public Officers & Corporation 4th yr Review
hoc investigating bodies to exist is to allow an
inquiry into matters which the President is entitled
to know so that he can be properly advised and
guided in the performance of his duties relative to
the execution and enforcement of the laws of the
land. What make it unconstitutional is because of
the violation of the another important concept of
our constitution that is the equal protection
because the focus is limited to those officials
under the Arroyo administration.
Now another was still a violation by the president
of the authority of congress to allocate funds in
order to sustain the operations of this public
office. The supreme court rule there was no such
violation because maybe there’s no
appropriation of funds for to sustain this office.
What happened is simply the allotment of
allocation of a fund already appropriated to the
office of the president simply transferred within
the office. There is no need for the congress to
further allocate funds for the PTC.
Abolition of PAGC & transfer of its functions to a
division specially created w/in ODESLA
(IAD-ODESLA) under EO 13 is within prerogative of
Pres. under continuing “delegated legislative
authority to reorganize” his office pursuant to EO
292. There was no creation of a new, separate &
distinct office as PAGC functions were simply
transferred to ODESLA w/c is an existing office
w/in the Office of the President Proper. It is mere
alteration of admin structure of ODESLA thru
establishment of IAD. Thus, there is no usurpation
of legislative power to create a public office
(Pichay vs. Ochoa, 7/24/12).
An important case Pichay vs. Ochoa. He the chair
of a division under the office of the president. That
time, there was the Presidential Anti- Graft and
Corrupt Commission. By the basis of EO 13, there
was “Abolition of PAGC & transfer of its functions
and powers to a division specially created w/in
Office of the Deputy Executive Secretary for Legal
Affairs (IAD-ODESLA). Issue is if the president can
abolish PAGC? The Abolition under EO 13 is within
prerogative of Pres. under continuing “delegated
legislative authority to reorganize” his office
pursuant to EO 292(Admin Law). PAGC was under
it. There was no creation of a new, separate &
distinct office as PAGC functions were simply
transferred to ODESLA w/c is an existing office
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w/in the Office of the President. It is mere
alteration of admin structure of ODESLA thru
establishment of IAD. Thus, there is no usurpation
of legislative power to create a public office
“Pichay that time was an investigator under the
office of the president but on the basis of
executive order 13 was abolished by the
president and its powers, functions were
transferred to admission created within the office
of the deputy executive secretary so question
now is whether have the president is competent
to abolish the what happened here is already
given to the president as mentioned a while ago
he has the authority under the revised 292
elevated continuing the related legislative power
of authority to reorganize the office of the
president and is part of the office of the
president there was no new office created but
simply the functions of the abolished office which
is really were transferred to existing offices of the a
division, instantly done, the internal affairs of the
division discharging those functions there was a
simply the alteration of the structure by
establishing the internal affairs division, there was
dissertation of an power on the part of the
president.
Take note of the authority of the President under
EO 292 Book III
Section 31. Continuing Authority of the President
to Reorganize his Office. - The President, subject
to the policy in the Executive Office and in order
to achieve simplicity, economy and efficiency,
shall have continuing authority to reorganize the
administrative structure of the Office of the
President. For this purpose, he may take any of
the following actions:
(1) Restructure the internal organization of
the Office of the President Proper,
including the immediate Offices, the
Presidential Special Assistants/Advisers
System and the Common staff Support
System, by abolishing, consolidating or
merging units thereof or transferring
functions from one unit to another;
(2) Transfer any function under the Office
of the President to any other Department
or Agency as well as transfer functions to
the Office of the President from other
Departments and Agencies; and
(3) Transfer any agency under the Office
 2016 Public Officers & Corporation 4th yr Review
of the President to any other department
or agency as well as transfer agencies to
the Office of the President from other
departments or agencies.
Characteristics:
1.public office is a public trust
2.no one has vested right to a public
office
3.not a property
4.cannot be inherited
Constitutional tenet underlying public office:
Art. Xl, Sec. 1, 1987 Constitution (concept of
public accountability)
Characteristics if public office
Article 11 Section 1 that is the basic of this simply
means that public office is a in order to benefit
the people therefore public officer appointed to
this office to discharge public officer has no
vested right to the public office.
The general rule is that there is no vested right in
an office which may not be disturbed by
legislation. However, where the issue relates to
who is rightly entitled to the office, then it comes
within concept of property where due process
has to apply. If that right of the incumbent to
office has to be taken away by statute, the terms
should be clear. He cannot be deprived of the
same without an express provision of law
depriving him of his office (Segovia vs. Noel).
The old case of Segovia vs Noel. The general rule
is that public officer has no vested right in an
office which may not be disturbed by legislation.
In other words, no person can claim that he has
absolute right in that public office unless removed
from that public office under the basis of the clear
provision of the law, Exception is, where the issue
relates to who is rightly entitled to the office, then
it comes within the ambit or concept of property
where due process has to apply, if that right of the
incumbent to office has to be taken away by
statute, the terms should be clear. He cannot be
deprived of the same without an express provision
of law depriving him of his office. Because we
mentioned that there can be no vested right to
public office in other words no person can claim
to be removed separated from public office. It
must be on the basis of clear provision of law. So
exception to this rule that there can be no vested
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right in the office is where the issue who among
the claimants who is rightly entitled in the public
office of this property concept, the requirement
of due process must be observed in the case of
Segovia Public office is purely personal to the
incumbent this can’t be pass on to the heirs in
case of the death of the public officer. The right of
office was extinguished upon the death of the
officer.
Public office is personal to the incumbent & not a
property which passes to heirs. The heirs may no
longer prosecute the protestee’s counterclaim for
damages vs. the protestant for that was
extinguished when death terminated his right to
occupy the contested office (Abeja vs. Tanada &
Mayor Radovan, 236 SCRA 62).
The Attrition Act (RA 9335), providing for a system
of rewards and incentives for BIR & BOC officials
and employees who exceed their collection
targets and penalizing those who fail to meet their
quota for a given year, is constitutional. It is not in
contrast to concept of public accountability;
rather it recognizes dedication to duty, industry
and loyalty (Abakada Party List vs. Purisima, 562
SCRA 251). Sec. 12 of RA 9335 allowing the
creation of congressional oversight body to
approve IRR is void. It violates principle of
separation of powers. Congress arrogated
judicial power by exercising discretion to
determine whether the IRR conforms to provisions
of law.
In the case of Abakada Party List vs Purisima
Republic Act 9335 which provides for incentives,
system of rewards and incentives for these
officials the offices (identified by President Duterte
as most corrupt), the BIR and Bureau of Customs
employees and officials who are able to meet
their collection targets as well as penalizing them.
Is this constitutional? A system of incentives and
rewards will make them like mercenaries. The SC
held:
Public office is a public trust. It must be
discharged by its holder not for his own personal
gain but for the benefit of the public for whom he
holds it in trust. By demanding accountability and
service with responsibility, integrity, loyalty,
efficiency, patriotism and justice, all government
officials and employees have the duty to be
 2016 Public Officers & Corporation 4th yr Review
responsive to the needs of the people they are
called upon to serve.
Public officers enjoy the presumption of regularity
in the performance of their duties. This
presumption necessarily obtains in favor of BIR
and BOC officials and employees. RA 9335
operates on the basis thereof and reinforces it by
providing a system of rewards and sanctions for
the purpose of encouraging the officials and
employees of the BIR and the BOC to exceed
their revenue targets and optimize their
revenue-generation capability and collection.
The presumption is disputable but proof to the
contrary is required to rebut it. It cannot be
overturned by mere conjecture or denied in
advance (as petitioners would have the Court
do) specially in this case where it is an underlying
principle to advance a declared public policy.
Petitioners’ claim that the implementation of RA
9335 will turn BIR and BOC officials and employees
into "bounty hunters and mercenaries" is not only
without any factual and legal basis; it is also
purely speculative.
A law enacted by Congress enjoys the strong
presumption of constitutionality. To justify its
nullification, there must be a clear and
unequivocal breach of the Constitution, not a
doubtful and equivocal one. To invalidate RA
9335 based on petitioners’ baseless supposition is
an affront to the wisdom not only of the legislature
that passed it but also of the executive, which
approved it.
Public service is its own reward. Nevertheless,
public officers may, by law, be rewarded for
exemplary and exceptional performance. A
system of incentives for exceeding the set
expectations of a public office is not anathema
to the concept of public accountability. In fact, it
recognizes and reinforces dedication to duty,
industry, efficiency and loyalty to public service of
deserving government personnel.
In United States v. Matthews, the U.S. Supreme
Court validated a law which awards to officers of
the customs as well as other parties an amount
not exceeding one-half of the net proceeds of
forfeitures in violation of the laws against
smuggling. Citing Dorsheimer v. United States, the
U.S. Supreme Court said:
The offer of a portion of such penalties to
the collectors is to stimulate and reward
their zeal and industry in detecting
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fraudulent attempts to evade payment of
duties and taxes.
In the same vein, employees of the BIR and the
BOC may by law be entitled to a reward when, as
a consequence of their zeal in the enforcement
of tax and customs laws, they exceed their
revenue targets. In addition, RA 9335 establishes
safeguards to ensure that the reward will not be
claimed if it will be either the fruit of "bounty
hunting or mercenary activity" or the product of
the irregular performance of official duties. One of
these precautionary measures is embodied in
Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and
Employees of the BIR and the BOC. – The
officials, examiners, and employees of the
[BIR] and the [BOC] who violate this Act or
who are guilty of negligence, abuses or
acts of malfeasance or misfeasance or fail
to exercise extraordinary diligence in the
performance of their duties shall be held
liable for any loss or injury suffered by any
business establishment or taxpayer as a
result of such violation, negligence, abuse,
malfeasance, misfeasance or failure to
exercise extraordinary diligence.
Another equally important issue in this case is the
constitutionality of sec.12. Section 12 provides for
the creation of the congressional oversight
committee task to review and improve the
implemented rules and regulations that being
promulgated. Now is there a violation of an
important principle of the constitution? Yes the
principle of separation of congress, why?
Because you are abating to congress a power
belonging to the court this shall the power of the
court (judicial review) to declare whether (the
implementing rules that will be promulgated are
in conformity with the law itself that is a power
solely belonging to the court not to this
congressional body. Thus, violating the principle
of separation of powers.
General rule: Individual cannot be forced to
accept public office
Exceptions:
1. Sec. 4, Art. ll, 1987 Constitution:
Government may call on people to
defend the state and … render
personal military or civil service in
defense of State.
2. Art. 234, RPC: One elected by
 2016 Public Officers & Corporation 4th yr Review
popular election cannot refuse …
the office w/o legal motive.
3. Posse comitatus: citizens to help
community in maintenance &
preservation of peace.
The general rule is the individual; a person cannot
be forced to accept public office. What are the
exceptions to this rule?
First, Article 2 Section 4, the duty of the state to
protect and serve the people and to defend the
state and the fulfillment thereof. State requires
personal dignitary.
Second exception under Article 234 revised Penal
Code Book 1 whose elected by popular election
cannot refuse to discharge the duties of clause
without legal motive otherwise he shall be liable
punsishable by arresto mayor or fine not
exceeding 1000 pesos.
The third exception Posse comitatus: citizens to
help community in maintenance & preservation.
Classifying Public Officers of GOCCs under RA
3019 (RA 7579, RA 6249 & RA 10660)
• Assistant Manager of PNCC, a
GOCC w/o original charter, who is
charged with estafa is not a public
officer w/in the coverage of RA 3019
& under jurisdiction of
Sandiganbayan (Macalino vs.
Sandiganbayan, 376 SCRA 452).
• For purposes of RA 3019, the
Sandiganbayan has jurisdiction over
the President & COO of Phil. Postal
Savings Bank, a GOCC w/o original
charter (People vs. Sandiganbayan,
02/16/05).
• Jurisdiction over Presidents,
directors, trustees or managers of
GOCCs w/o original charter.
Take note under the Civil Service rule public
officers are those covered under civil service.
There may be officers who are not for purposes of
applying the civil service law considered public
officers, but for purposes of applying provisions of
SB law in relation to RA 3019 you may still be
considered a public officer. Example, an
8 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
executive of a GOCCS without original charter
because under the civil service law he is not a
public officer. What is provided under the
constitution, the definition of public officer those
covered under Civil Service system only GOCCS
with original charter. But for purposes of RA 3019
for cases filed before Sandiganbayan even an
executive of GOCC without original charter may
be charged as a public officer. For example,
PNCC a GOCC without original charter. In case of
Macalino vs Sandiganbayan Assistant Manager
of PNCC, a GOCC w/o original charter, who is
charged with estafa is not a public officer w/in
the coverage of RA 3019 & under jurisdiction of
Sandiganbayan. In the case of People vs.
Sandiganbayan where SC ruled that for purposes
of RA 3019, the Sandiganbayan has jurisdiction
over the President & COO of Phil. Postal Savings
Bank, a GOCC w/o original charter. How do we
know w/o original charter. It is incorporated under
the general corporation law.
*Though the Manager of Philhealth, a GOCC w/
original charter, is merely classified as SG 26, said
position is mentioned in Sec. 4(A)(1g) of RA 8249,
thus under Sandiganbayan’s jurisdiction
(Geduspan vs. Pp, 451 SCRA 187).
*Presidents, directors, trustees or managers of
GOCCs are under Sandiganbayan’s authority.
Although VP and AVP (of AFP RSBS) are not
specifically enumerated in RA 8249, said ranks
are even higher than that of managers (Alzaga
vs. Sandiganbayan, 505 SCRA 849)
In Geduspan vs. Pp, though the Manager of
Philhealth, a GOCC w/ original charter, is merely
classified as SG 26, said position is mentioned in
Sec. 4(A)(1g) of RA 8249, thus under
Sandiganbayan’s jurisdiction
July 8 2016
Classifying Public Officers of GOCCs under RA
3019 (RA 7579, RA 6249 & RA 10660)
• Assistant Manager of PNCC, a GOCC w/o
original charter, who is charged with
estafa is not a public officer w/in the
coverage of RA 3019 & under jurisdiction
of Sandiganbayan (Macalino vs.
Sandiganbayan, 376 SCRA 452).
• For purposes of RA 3019, the
Sandiganbayan has jurisdiction over the
 2016 Public Officers & Corporation 4th yr Review
President & COO of Phil. Postal Savings
Bank, a GOCC w/o original charter
(People vs. Sandiganbayan, 02/16/05).
• Jurisdiction over Presidents, directors,
trustees or managers of GOCCs w/o
original charter.
Recall our last discussion. We mentioned the
authority of the Sandiganbayan in PD 1861 as
amended by RA 7579, RA 6249 and more recently
by RA 10660. Based on Macalino vs.
Sandiganbayan where the accused holds the
position of assistant manager. Take note that this
position is not among those expressly enumerated
under the law. Therefore the SB does not have
authority over his person. Take note we make the
important distinction here between those officers
of GOCCs under the Civil Service Law and those
officers under the provisions of the
Sandiganbayan Act in relation to laws violated by
public officers, in relation to offices such as RA
3019.
So the distinction here is that those officers and
employees of GOCCs without original charter are
not covered by the Civil Service system but they
are considered as public officers for purposes of
prosecution under the provisions of the
Sandiganbayan Act.
Take note again that even officers of GOCCs
without original charter may be prosecuted
before the SB but only those as provided
thereunder to positions mentioned therein. The
position of assistant manager is not among those
enumerated.
So in People vs. Sandiganbayan, the court ruled
that the SB has the authority to try offenses
committed by the officers such as the President
and Chief Operating Officer of the Philippine
Postal Savings Bank which is a GOCC without
original charter. Take not it is a subsidiary of a
GOCC with original charter, that is, the Philippine
Postal Corporation which under its law has the
authority to create subsidiaries such as the
Philippine Postal Savings Bank. Again by express
provision of law, the SB has authority over
Presidents, directors, trustees or managers of
GOCCs whether with or without original charter.
• Though the Manager of Philhealth, a
9 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
GOCC w/ original charter, is merely
classified as SG 26, said position is
mentioned in Sec. 4(A)(1g) of RA 8249,
thus under Sandiganbayan’s jurisdiction
(Geduspan vs. Pp, 451 SCRA 187).
• Presidents, directors, trustees or managers
of GOCCs are under Sandiganbayan’s
authority. Although VP and AVP (of AFP
RSBS) are not specifically enumerated in
RA 8249, said ranks are even higher than
that of managers (Alzaga vs.
Sandiganbayan, 505 SCRA 849)
In Geduspan vs. Pp, the court ruled that petitioner
Geduspan, the manager of Philhealth (even if
classified as salary grade 26) is covered by this
law because such position is among those so
expressly mentioned.
In Alzaga vs. Sandiganbayan, even if the positions
for Vice President and Assistant Vice President are
not mentioned, take note they are higher
positions than the position of manager which is
expressly mentioned. Clearly they are also
covered. The directors, president or vice president
or assistant vice president in this case of the AFP
Retirement and Separation Benefit System which
is really akin to the GSIS/SSS are covered. So they
ought to be within the ambit of the SB Law even if
said ranks are not mentioned but of course they
are higher than the position of a manager.
Original Jurisdiction of Sandiganbayan
• 1) (Among others), officials of the
executive branch w SG 27 or higher, and
2) officials specifically enumerated in Sec.
4(A)(1)(a) to (g), regardless of their SG.
• While the 1st part of Sec. 4(A) above
covers only executive officials w SG 27 &
higher, its 2nd part specifically includes
executive officials whose positions may
not be of SG 27 & above but who are by
express provision of law placed under the
jurisdiction of the Sandiganbayan.
There are some rules here. The officials of the
executive branch of government with salary
grade 27 or higher Thats the first part. They are
covered under the original jurisdiction of the SB.
The second part of Sec. 4 refers to officials
expressly enumerated in such provision.
 2016 Public Officers & Corporation 4th yr Review
So the rule here is the first part covers executive
officials with salary grade 27 and higher.
There is a situation that even a position with salary
grade lower than 27 may still be within the
authority of SB if it is one of those mentioned in the
second part. So the second part specifically
includes those officials whose positions may not
be of salary grade of 27 and above but by
express provision of law are under the authority of
the SB. If you recall, a good example of this would
be the Department Head of the City or a
Province. These positions generally have a salary
grade of 26 and below but it is one of the
positions mentioned in the second phrase of
positions within the ambit of the Sandiganbayan’s
jurisdiction.
• Accused was Regional Dir. of the LTO Reg.
IX, Zamboanga City, but at time of
commission of the crime, his position was
classified as Director II w SG 26. Hence,
jurisdiction over his case falls with RTC
(Ramon Cuyco vs. Sandiganbayan, 381
Phil 906).
• Petitioner is, at the time material to the
case (for failure to disclose business
interests in SALN), the BIR Regional Dir. w
SG 26. As he is not an executive official w
SG 27 or higher, nor holds any position
enumerated in Sec. 4 (A), the
Sandiganbayan has no jurisdiction over
him (Duncano vs Sandiganbayan,
07/15/2015)
Section 4. Section 4 of the same decree is hereby
further amended to read as follows:
"a. Violations of Republic Act No. 3019, as
amended, otherwise known as the Anti-graft and
Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code, where one or more of the
accused are officials occupying the following
positions in the government whether in a
permanent, acting or interim capacity, at the
time of the commission of the offense:
"(1) Officials of the executive branch occupying
the positions of regional director and higher,
otherwise classified as Grade '27' and higher, of
the Compensation and Position Classification Act
of 1989 (Republic Act No. 6758), specifically
10 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
including:
"(a) Provincial governors, vice-governors,
members of the sangguniang panlalawigan and
provincial treasurers, assessors, engineers and
other provincial department heads;
"(b) City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurers,
assessors engineers and other city department
heads;
"(c) Officials of the diplomatic service occupying
the position of consul and higher;
"(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank;
"(e) Officers of the Philippine National Police while
occupying the position of provincial director and
those holding the rank of senior superintendent or
higher;
"(f) City and provincial prosecutors and their
assistants, and officials and prosecutors in the
Office of the Ombudsman and special
prosecutor;
"(g) Presidents, directors or trustees, or managers
of government-owned or -controlled
corporations, state universities or educational
institutions or foundations;
"(2) Members of Congress and officials thereof
classified as Grade'27'and up under the
Compensation and Position Classification Act of
1989;
"(3) Members of the judiciary without prejudice to
the provisions of the Constitution;
"(4) Chairmen and members of Constitutional
Commissions, without prejudice to the provisions
of the Constitution; and
"(5) All other national and local officials classified
as Grade'27'and higher under the Compensation
and Position Classification Act of 1989.
"b. Other offenses orfelonies whether simple or
complexed with other crimes committed by the
public officials and employees mentioned in
subsection a of this section in relation to their
office.
"c. Civil and criminal cases filed pursuant to and
in connection with Executive Order Nos. 1, 2, 14
and 14-A, issued in 1986.
"In cases where none of the accused are
occupying positions corresponding to salary
grade '27' or higher, as prescribed in the said
Republic Act No. 6758, or military or PNP officers
mentioned above, exclusive original jurisdiction
thereof shall be vested in the proper regional trial
court, metropolitan trial court, municipal trial
 2016 Public Officers & Corporation 4th yr Review
court and municipal circuit trial court ' as the
case may be, pursuant to their respective
jurisdiction as provided in Batas Pambansa Blg.
129, as amended.
Xxx (full list below)
In the case of Ramon Cuyco vs. Sandiganbayan,
take note again before we discuss this case that
under Section 4 of the SBs jurisdiction (RA 8249), it
states that executive officials with salary grade 27
and higher in the Compensation and Position
Classification Act of 1989 RA 6758.
Take note a Regional Director with salary grade
27 and higher. In this case, petitioner who holds
the position of Regional Director of LTO with salary
grade 26 therefore is not covered under the
jurisdiction of Sandiganbayan because what is so
mentioned in the law is Regional Director with
salary grade 27 and higher.
In Duncano vs Sandiganbayan, the Regional
Director of the BIR was charged before SB. He
claimed that he is not under the jurisdiction of SB
and the SC sustained his position because his
position has salary grade 26. So at the time of the
commission of the offense he was charged in
relation to his failure to disclose his business
interest in his Statement of Assets, Liabilities and
Net Worth (SALN). There is such requirement under
RA 6713. Therefore since he is only receiving salary
grade 26, he is not under the jurisdiction of
Sandiganbayan.
DANILO A. DUNCANO, Petitioner, v. HON.
SANDIGANBAYAN (2ND DIVISION), AND
HON. OFFICE OF THE SPECIAL
PROSECUTOR, Respondents.
FACTS: Danilo was a Regional Director of the
Bureau of Internal Revenue with Salary Grade 26
when he was charged with violation of Section 8
in relation to Section 11 of Republic Act 6713. An
Information was thus filed against him before the
Sandiganbayan. Prior to his arraignment, he filed
a Motion to Dismiss With Prayer to Defer the
Issuance of Warrant of Arrest, asserting that under
Presidential Decree 1606 as amend by Section 4
(A) (1) of RA 8249, the Sandiganbayan has no
jurisdiction to try and hear a case because he is
an official of the executive branch occupying the
position of a Regional Director but with a
compensation that is classified as below Salary
11 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
Grade 27. The Office of the Special Prosecutor
opposed, arguing that he qualification as to
Salary Grade 27 and higher applies only to
officials of the executive branch other than the
Regional Director and those specifically
enumerated. This is so since the term “Regional
Director” and “higher” are separated by the
conjunction “and,” which signifies that these two
positions are different, apart and distinct, words
but are conjoined together “relating one to the
other” to give effect to the purpose of the law.
The fact that the position of Regional Director was
specifically mentioned without indication as to its
salary grade signifies the lawmakers’ intention
that officials occupying such position, regardless
of salary grade, fall within the original and
exclusive jurisdiction of the Sandiganbayan.
The Sandiganbayan Second Division denied the
motion, holding that the position of Regional
Director is one of those exceptions where the
Sandiganbayan has jurisdiction even if such
position is not Salary Grade 27. It was opined that
Section 4 (A) (1) of R.A No. 8249 unequivocally
provides that respondent court has jurisdiction
over officials of the executive branch of the
government occupying the position of regional
director and higher, otherwise classified as Salary
Grade 27 and higher, of R.A. No. 6758, including
those officials who are expressly enumerated in
subparagraphs (a) to (g). In support of the ruling,
this Court’s pronouncements in Inding and Binay
v. Sandiganbayan were cited.
The petitioner elevated the issue to the Supreme
Court.
Issue:Whether or not the Sandiganbayan has
jurisdiction over the case.
Ruling: We find merit in the petition.
The creation of the Sandiganbayan was
mandated by Section 5, Article XIII of the 1973
Constitution.⁠1 By virtue of the powers vested in
him by the Constitution and pursuant to
Proclamation No. 1081, dated September 21,
1972, former President Ferdinand E. Marcos issued
P.D. No. 1486.⁠2 The decree was later amended by
P.D. No. 1606,⁠3 Section 20 of Batas Pambansa Blg.
129⁠4 P.D. No. 1860,⁠5 and P.D. No. 1861⁠6.
With the advent of the 1987 Constitution, the
special court was retained as provided for in
Section 4, Article XI thereof.⁠7 Aside from
Executive Order Nos. 14⁠8 and 14-a,⁠9 and R.A.
7080,⁠10 which expanded the jurisdiction of the
Sandiganbayan, P.D. No. 1606 was further
 2016 Public Officers & Corporation 4th yr Review
modified by R.A. No. 7975⁠11, R.A. No. 8249,⁠12 and
just this year, R.A. No. 10660.⁠13
For the purpose of this case, the relevant provision
is Section 4 of R.A. No. 8249.
Based on the afore-quoted, those that fall within
the original jurisdiction of the Sandiganbayan are:
(1) officials of the executive branch with Salary
Grade 27 or higher, and (2) officials specifically
enumerated in Section 4 (A) (1) (a) to (g),
regardless of their salary grades.⁠ While the first
part of Section 4 (A) covers only officials of the
executive branch with Salary Grade 27 and
higher, its second part specifically includes other
executive officials whose positions may not be of
Salary Grade 27 and higher but who are by
express provision of law placed under the
jurisdiction of the Sandiganbayan.⁠
That the phrase “otherwise classified as Grade
‘27’ and higher” qualifies “regional director and
higher” is apparent from the Sponsorship Speech
of Senator Raul S. Roco on Senate Bill Nos. 1353
and 844, which eventually became R.A. Nos. 7975
and 8249, respectively:
As proposed by the Committee, the
Sandiganbayan shall exercise original jurisdiction
over the cases assigned to it only in instances
where one or more of the principal accused are
officials occupying the positions of regional
director and higher or are otherwise classified as
Grade 27 and higher by the Compensation and
Position Classification Act of 1989, whether in a
permanent, acting or interim capacity at the time
of the commission of the offense. The jurisdiction,
therefore, refers to a certain grade upwards,
which shall remain with the Sandiganbayan.⁠
(Emphasis supplied)
To speed up trial in the Sandiganbayan, Republic
Act No. 7975 was enacted for that Court to
concentrate on the “larger fish” and leave the
“small fry” to the lower courts. This law became
effective on May 6, 1995 and it provided a
two-pronged solution to the clogging of the
dockets of that court, to wit:
It divested the Sandiganbayan of jurisdiction over
public officials whose salary grades were at
Grade “26” or lower, devolving thereby these
cases to the lower courts, and retaining the
jurisdiction of the Sandiganbayan only over
public officials whose salary grades were at
Grade “27” or higher and over other specific
public officials holding important positions in
government regardless of salary grade; x x x⁠
12 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
(Emphasis supplied)
The legislative intent is to allow the
Sandiganbayan to devote its time and expertise
to big-time cases involving the so-called “big
fishes” in the government rather than those
accused who are of limited means who stand trial
for “petty crimes,” the so-called “small fry,” which,
in turn, helps the court decongest its dockets.⁠
Yet, those that are classified as Salary Grade 26
and below may still fall within the jurisdiction of the
Sandiganbayan, provided that they hold the
positions enumerated by the law.⁠ In this category,
it is the position held, not the salary grade, which
determines the jurisdiction of the
Sandiganbayan.⁠ The specific inclusion
constitutes an exception to the general
qualification relating to “officials of the executive
branch occupying the positions of regional
director and higher, otherwise classified as Grade
‘27’ and higher, of the Compensation and
Position Classification Act of 1989.”⁠ As ruled in
Inding:
Following this disquisition, the paragraph of
Section 4 which provides that if the accused is
occupying a position lower than SG 27, the proper
trial court has jurisdiction, can only be properly
interpreted as applying to those cases where the
principal accused is occupying a position lower
than SG 27 and not among those specifically
included in the enumeration in Section 4 a. (1) (a)
to (g). Stated otherwise, except for those officials
specifically included in Section 4 a. (1) (a) to (g),
regardless of their salary grades, over whom the
Sandiganbayan has jurisdiction, all other public
officials below SG 27 shall be under the jurisdiction
of the proper trial courts “where none of the
principal accused are occupying positions
corresponding to SG 27 or higher.” By this
construction, the entire Section 4 is given effect.
The cardinal rule, after all, in statutory construction
is that the particular words, clauses and phrases
should not be studied as detached and isolated
expressions, but the whole and every part of the
statute must be considered in fixing the meaning
of any of its parts and in order to produce a
harmonious whole. And courts should adopt a
construction that will give effect to every part of a
statute, if at all possible. Ut magis valeat quam
pereat or that construction is to be sought which
gives effect to the whole of the statute – its every
word. ⁠
Thus, to cite a few, We have held that a member
 2016 Public Officers & Corporation 4th yr Review
of the Sangguniang Panlungsod,⁠ a department
manager of the Philippine Health Insurance
Corporation (Philhealth),⁠ a student regent of the
University of the Philippines,⁠ and a Head of the
Legal Department and Chief of the
Documentation with corresponding ranks of
Vice-Presidents and Assistant Vice-President of the
Armed Forces of the Philippines Retirement and
Separation Benefits System (AFP-RSBS)⁠ fall within
the jurisdiction of the Sandiganbayan.
Petitioner is not an executive official with Salary
Grade 27 or higher. Neither does he hold any
position particularly enumerated in Section 4 (A)
(1) (a) to (g). As he correctly argues, his case is, in
fact, on all fours with Cuyco. Therein, the accused
was the Regional Director of the Land
Transportation Office, Region IX, Zamboanga City,
but at the time of the commission of the crime in
1992, his position was classified as Director II with
Salary Grade 26.⁠ It was opined:
Petitioner contends that at the time of the
commission of the offense in 1992, he was
occupying the position of Director II, Salary Grade
26, hence, jurisdiction over the cases falls with the
Regional Trial Court.
We sustain petitioner’s contention.
The Sandiganbayan has no jurisdiction over
violations of Section 3(a) and (e), Republic Act
No. 3019, as amended, unless committed by
public officials and employees occupying
positions of regional director and higher with
Salary Grade “27” or higher, under the
Compensation and Position Classification Act of
1989 (Republic Act No. 6758) in relation to their
office.
In ruling in favor of its jurisdiction, even though
petitioner admittedly occupied the position of
Director II with Salary Grade “26” under the
Compensation and Position Classification Act of
1989 (Republic Act No. 6758), the Sandiganbayan
incurred in serious error of jurisdiction, and acted
with grave abuse of discretion amounting to lack
of jurisdiction in suspending petitioner from office,
entitling petitioner to the reliefs prayed for.⁠
In the same way, a certification issued by the OIC
– Assistant Chief, Personnel Division of the BIR
shows that, although petitioner is a Regional
Director of the BIR, his position is classified as
Director II with Salary Grade 26.⁠
There is no merit in the OSP’s allegation that the
petition was prematurely filed on the ground that
respondent court has not yet acquired jurisdiction
13 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
over the person of petitioner. Records disclose
that when a warrant of arrest was issued by
respondent court, petitioner voluntarily
surrendered and posted a cash bond on
September 17, 2009. Also, he was arraigned on
April 14, 2010, prior to the filing of the petition on
April 30, 2010.
WHEREFORE, the foregoing considered, the instant
petition for certiorari is GRANTED. The August 18,
2009 Resolution and February 8, 2010 Order of
the Sandiganbayan Second Division, which
denied petitioner’s Motion to Dismiss on the
ground of lack of jurisdiction, are REVERSED AND
SET ASIDE.
RA 10660 (approved 04/16/2015)
•The Regional Trial Court shall have
exclusive original jurisdiction where the
information:
(a) does not allege any damage to the
gov’t or bribery; or
(b) alleges damage to the gov’t or bribery
arising from the same or closely related
transactions or acts in an amount not
exceeding P1 Million.
What is the important provision under the
amendatory law RA 10660?
There is a need to declog the dockets of SB,
therefore under this amendatory law the Regional
Trial Court already has the exclusive original
authority where the information does not allege
any damage to the government or bribery or
even if the Information so alleges damage to the
government or bribery but the damage does not
exceed 1 million. In these instances the SB no
longer has competence to take cognizance of
such case against the official.
[REPUBLIC ACT NO. 10660]
AN ACT STRENGTHENING FURTHER THE
FUNCTIONAL AND STRUCTURAL ORGANIZATION OF
THE SANDIGANBAYAN, FURTHER AMENDING
PRESIDENTIAL DECREE NO. 1606, AS AMENDED,
AND APPROPRIATING FUNDS THEREFOR
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled:
SECTION 1. Section 3 of Presidential Decree No.
1606, as amended, is hereby further amended to
read as follows:
“SEC. 3. Constitution of the Divisions; Quorum.
 2016 Public Officers & Corporation 4th yr Review
– The Sandiganbayan shall sit in seven (7) divisions
of three (3) members each.
“Two (2) members shall constitute a quorum for
sessions in divisions: Provided, That when the
required quorum for the particular division cannot
be had due to the legal disqualification or
temporary incapacity of a member or a vacancy
therein, the Presiding Justice may designate a
member of another division to be determined by
strict rotation on the basis of the reverse order of
precedence, to sit as a special member of said
division with all the rights and prerogatives of a
regular member of said division in the trial and
determination of a case or cases assigned
thereto.”
SEC. 2. Section 4 of the same decree, as
amended, is hereby further amended to read as
follows:
“SEC. 4. Jurisdiction. – The Sandiganbayan shall
exercise exclusive original jurisdiction in all cases
involving:
“a. Violations of Republic Act No. 3019, as
amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII, Book II of the Revised
Penal Code, where one or more of the accused
are officials occupying the following positions in
the government, whether in a permanent, acting
or interim capacity, at the time of the commission
of the offense:
“(1) Officials of the executive branch occupying
the positions of regional director and higher,
otherwise classified as Grade ’27’ and higher, of
the Compensation and Position Classification Act
of 1989 (Republic Act No. 6758), specifically
including:
“(a) Provincial governors, vice-governors,
members of the sangguniang panlalawigan, and
provincial treasurers, assessors, engineers, and
other provincial department heads:
“(b) City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurers,
assessors, engineers, and other city department
heads;
“(c) Officials of the diplomatic service occupying
the position of consul and higher;
“(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank;
“(e) Officers of the Philippine National Police while
occupying the position of provincial director and
those holding the rank of senior superintendent
and higher;
14 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
“(f) City and provincial prosecutors and their
assistants, and officials and prosecutors in the
Office of the Ombudsman and special
prosecutor;
“(g) Presidents, directors or trustees, or managers
of government-owned or controlled corporations,
state universities or educational institutions or
foundations.
“(2) Members of Congress and officials thereof
classified as Grade ’27’ and higher under the
Compensation and Position Classification Act of
1989;
“(3) Members of the judiciary without prejudice to
the provisions of the Constitution;
“(4) Chairmen and members of the Constitutional
Commissions, without prejudice to the provisions
of the Constitution; and
“(5) All other national and local officials classified
as Grade ’27’ and higher under the
Compensation and Position Classification Act of
1989.
“b. Other offenses or felonies whether simple or
complexed with other crimes committed by the
public officials and employees mentioned in
subsection a. of this section in relation to their
office.
“c. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and
14-A, issued in 1986.
“Provided, That the Regional Trial Court shall have
exclusive original jurisdiction where the
information: (a) does not allege any damage to
the government or any bribery; or (b) alleges
damage to the government or bribery arising
from the same or closely related transactions or
acts in an amount not exceeding One million
pesos (P1,000,000.00).
“Subject to the rules promulgated by the Supreme
Court, the cases falling under the jurisdiction of
the Regional Trial Court under this section shall be
tried in a judicial region other than where the
official holds office.
“In cases where none of the accused are
occupying positions corresponding to Salary
Grade ’27’ or higher, as prescribed in the said
Republic Act No. 6758, or military and PNP officers
mentioned above, exclusive original jurisdiction
thereof shall be vested in the proper regional trial
court, metropolitan trial court, municipal trial
court, and municipal circuit trial court, as the case
may be, pursuant to their respective jurisdictions
as provided in Batas Pambansa Blg. 129, as
 2016 Public Officers & Corporation 4th yr Review
amended.
“The Sandiganbayan shall exercise exclusive
appellate jurisdiction over final judgments,
resolutions or orders of regional trial courts
whether in the exercise of their own original
jurisdiction or of their appellate jurisdiction as
herein provided.
“The Sandiganbayan shall have exclusive original
jurisdiction over petitions for the issuance of
the writs of mandamus, prohibition, certiorari,
habeas corpus, injunctions, and other ancillary
writs and processes in aid of its appellate
jurisdiction and over petitions of similar nature,
including quo warranto, arising or that may arise
in cases filed or which may be filed under
Executive Order Nos. 1, 2, 14 and 14-A, issued in
1986: Provided, That the jurisdiction over these
petitions shall not be exclusive of the Supreme
Court.
“The procedure prescribed in Batas Pambansa
Blg. 129, as well as the implementing rules that the
Supreme Court has promulgated and may
hereafter promulgate, relative to
appeals/petitions for review to the Court of
Appeals, shall apply to appeals and petitions for
review filed with the Sandiganbayan. In all cases
elevated to the Sandiganbayan and from the
Sandiganbayan to the Supreme Court, the Office
of the Ombudsman, through its special
prosecutor, shall represent the People of the
Philippines, except in cases filed pursuant to
Executive Order Nos. 1, 2, 14 and 14-A, issued in
1986.
“In case private individuals are charged as
co-principals, accomplices or accessories with
the public officers or employees, including those
employed in government-owned or controlled
corporations, they shall be tried jointly with said
public officers and employees in the proper courts
which shall exercise exclusive jurisdiction over
them.
“Any provisions of law or Rules of Court to the
contrary notwithstanding, the criminal action and
the corresponding civil action for the recovery of
civil liability shall at all times be simultaneously
instituted with, and jointly determined in, the same
proceeding by the Sandiganbayan or the
appropriate courts, the filing of the criminal action
being deemed to necessarily carry with it the filing
of the civil action, and no right to reserve the filing
of such civil action separately from the criminal
action shall be recognized: Provided,
15 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
however, That where the civil action had
heretofore been filed separately but judgment
therein has not yet been rendered, and the
criminal case is hereafter filed with the
Sandiganbayan or the appropriate court, said
civil action shall be transferred to the
Sandiganbayan or the appropriate court, as the
case may be, for consolidation and joint
determination with the criminal action, otherwise
the separate civil action shall be deemed
abandoned.”
SEC. 3. Section 5 of the same decree is hereby
amended to read as follows:
“SEC. 5. Proceedings, How Conducted; Decision
by Majority Vote. – All three (3) members of a
division shall deliberate on all matters submitted
for judgment, decision, final order, or resolution.
“The concurrence of a majority of the members of
a division shall be necessary to render a
judgment, decision, or final order, or to resolve
interlocutory or incidental motions.”
SEC. 4. Funding and Appropriations. – The amount
necessary to carry out the implementation of this
Act shall be charged against the current
appropriations of the Sandiganbayan. Thereafter,
such sums as may be needed for its full
implementation shall be included in the annual
General Appropriations Act.
SEC. 5. Transitory Provision. – This Act shall apply to
all cases pending in the Sandiganbayan over
which trial has not begun: Provided, That: (a)
Section 2, amending Section 4 of Presidential
Decree No. 1606, as amended, on “Jurisdiction”;
and (b) Section 3, amending Section 5 of
Presidential Decree No. 1606, as amended, on
“Proceedings, How Conducted; Decision by
Majority Vote” shall apply to cases arising from
offenses committed after the effectivity of this
Act.
SEC. 6. Separability Clause. – Should any provision
of this Act or part hereof be declared
unconstitutional, the other provisions or parts not
affected thereby shall remain valid and effective.
SEC. 7. Repealing Clause. – All laws, decrees,
orders, and issuances, or portions thereof, which
are inconsistent with the provisions of this Act, are
hereby repealed, amended or modified
accordingly.
SEC. 8. Effectivity. – This Act shall take effect
fifteen (15) days after its publication in the Official
Gazette or in two (2) newspapers of general
circulation.
 2016 Public Officers & Corporation 4th yr Review
De Facto Officer
• One who in good faith has possession of
the office & has discharged the duties
under color of authority, either derived
from an election or appointment, however
irregular.
• One whose acts, though not those of
lawful officer, law will hold valid upon
principles of pub. policy & justice as they
involve interestxx
• Requisites: regularly created office; color
of title or general reputation; physical
possession
• Distinguish from a de jure officer and a
usurper
Who is a de facto officer?
A de facto officer is a person whose acts though
not of a lawful officer but the law will consider or
uphold because of principles of justice and public
policy. The reason is that his acts involve public
interest and so the need for the law under this
principle of justice to consider as valid his act. The
person presupposes himself as the officer under a
color of title or right. So it may be by election or
appointment but there is such color or title. He is
also one who is in possession of the office in good
faith and discharging the functions of such office
in the basis of either appointment or election.
What are the requirements of a de facto officer?
1. There must be a regulated office
2. Color of title
3. General reputation
4. The person must be in physical possession
of the office
Who is a usurper?
In the case of a usurper, he does not have any
legal authority or right to the office. He is simply
one who intrudes into public office without any
right whatsoever.
Who is a de jure officer?
A de jure officer has the lawful right to the office
but is not in possession thereof.
Cases
• Even though the DILG Secretary has no
power to appoint petitioner as Acting Vice
Governor, at the least petitioner is a de
16 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
facto officer entitled to compensation as
he assumed office under color of
appointment (Menzon vs. Petilla, 197
SCRA 251)
• Where there is no de jure officer, a de
facto officer who in good faith had
possession & discharged the duties of the
office is legally entitled to the emoluments
of the office (Civil Liberties vs. Exec.
Secretary, 194 SCRA 317)
So the case of Menzon vs. Petilla, you have here
the petitioner appointed as acting vice-governor
and so on that basis he discharged the functions
of such office.
Take note the appointing power does not in
reality have the right to do so but there is such
color of title. So he should be considered still as a
de facto officer. Even though the Secretary of
DILG who appointed him did not have the
competence to appoint Menzon, nonetheless he
must still be considered a de facto officer on the
basis of such color of title.
In Civil Liberties vs. Exec. Secretary, (asked in the
Bar at least twice), a de facto officer who is in
possession of an office in good faith and there is
no de jure office therefore he is entitled to the
salaries and other benefits pertaining to the office
in the absence of course of a de jure officer.
• During respondent’s occupancy as
Education Supervisor w/c ended when
petitioner was reverted to the same
position after her promotional
appointment to Director was disapproved,
respondent should be deemed a de facto
officer (Arimao vs.Taher, 498 SCRA 76).
• An official who exercises the duties of an
elective officer under a color of election is
not a usurper. It matters not it was the trial
court & not the Comelec that declared
him as winner. Both, at different stages of
electoral process, have the power to
proclaim winners (Malaluan vs. Comelec,
254 SCRA 400 (2000 BQ).
In Arimao vs.Taher, the matter of the promotional
appointment of Arimao from Education
Supervisor to Director II. Her appointment was
issued by then ARMM Governor Misuari but such
 2016 Public Officers & Corporation 4th yr Review
appointment was disapproved by the CSC. When
she got promoted to the higher position her
position was thereafter occupied by Taher.
So here the question now is whether or not Taher
should be considered as a de facto officer. Yes,
she should be considered a de facto officer
because she occupied office in good faith. So
when her appointment was disapproved by the
CSC she was still entitled to the salaries within the
period of discharge of public functions as de
facto officer as education supervisor.
In Malaluan vs. COMELEC (asked also in the Bar),
the matter of declaration of Malaluan not by the
COMELEC but rather the trial court of Malaluan as
the Municipal Mayor. Subsequently he was
ousted so the issue is whether or not he should be
entitled to the salaries. The court ruled that the
officer exercising the functions of an elective
position under a color of election on the basis of a
proclamation made cannot be considered a
usurper. Rather he is a de facto officer even if it
was not the COMELEC but rather the trial court
that declared him as a winner. These bodies have
such power to proclaim the winner at various
stages of the election process.
Quo warranto as a special civil action can only
be commenced by the Solicitor General or any
person claiming to be entitled to public office
unlawfully held or exercised by another. Any
question of title to an office may not be
determined in a suit to restrain the payment of
salary to the person holding the office, brought by
one not claiming to be entitled to said office
(Tarrosa vs. Singson, 232 SCRA 553). Sec. 6 of RA
7653 requiring concurrence of Commission on
Appointments for appointment to post of Bangko
Sentral Governor is unconstitutional. [Sec.16
Art.Vll]
The case of Tarrosa vs. Singson, you have a
taxpayer, Tarrosa, filing a Petition for Prohibition
not even a quo warranto case. A petition that is
ought to be filed to oust a person from public
office should be under Rule 66 Petition for Quo
Warranto, a special action. It cannot be petition
for prohibition. Tarrosa claimed that Sec 66 of RA
7653 requires the concurrence of the Commission
on Appointments for the appointments to the
position of Governor of Central Bank.
17 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
Of course, the court ruled in this case that this
provision is purely unconstitutional because it is
not even one of those positions mentioned under
Article VII Section 16 of the Constitution as to
needing the concurrence of the Commission on
Appointments. These positions require the
concurrence of the Commission on
Appointments. The position of governor is not one
of those positions mentioned in Section 6 of RA
7166.
Section 16. The President shall nominate and, with
the consent of the Commission on Appointments,
appoint the heads of the executive departments,
ambassadors, other public ministers and consuls,
or officers of the armed forces from the rank of
colonel or naval captain, and other officers
whose appointments are vested in him in this
Constitution. He shall also appoint all other officers
of the Government whose appointments are not
otherwise provided for by law, and those whom
he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of
other officers lower in rank in the President alone,
in the courts, or in the heads of departments,
agencies, commissions, or boards.cralaw
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until
disapproved by the Commission on Appointments
or until the next adjournment of the Congress.
The court also ruled that the petition for quo
warranto can only be initiated either by the Solitor
General or by the person who claims to be
entitled to the office. It cannot be commenced
by a person who has no vested right to the office
such as Tarrosa who is merely a taxpayer. The
question of title to the office may not be
determined in an action to stay the payment of
emoluments to Mr. ___ for alleged non-
compliance of Section 6 of this law. Meaning, he
must show that he himself is entitled.
Since they do not claim to be entitled to the
Senate office of Gordon, petitioners have no
legal standing to file quo warranto to declare him
as having forfeited his seat in the Senate (Liban
vs. Gordon, 593 SCRA 68). PNRC is not a GOCC &
the prohibition under Sec. 13, Art. Vl Const. does
not apply. PNRC is a non-profit, donor-funded,
 2016 Public Officers & Corporation 4th yr Review
voluntary, humanitarian organization performing
public functions. But, since its Charter (RA 95) is
void insofar as it creates PNRC as a private corp.,
PNRC should incorporate under Corp. Code &
register w/ SEC. [n.b. sets aside Camporedondo
vs. NLRC]
In the case of Liban vs. Gordon, the issue here is
about the legality of the position of Gordon as the
chair of Philippine National Red Cross (PNRC) in
the light of what is provided under Article VI
Section 13.
Section 13. No Senator or Member of the House of
Representatives may 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, during his term
without forfeiting his seat. Neither shall he be
appointed to any office which may have been
created or the emoluments thereof increased
during the term for which he was elected.
No senator of member of the HR may hold any
other office in government. Take note what is now
of issue here is the classification of PNRC. How do
you categorize PNRC? Is it a government office
such that it falls within the ambit of the prohibition
under Article VI Section 13?
The SC ruled that Sec 13 Art 6 does not apply
simply because the PNRC is not a GOCC. This sets
aside the earlier SC decision in Camporedondo
vs. NLRC where SC said that PNRC is a
government entity. That is no more. The
petitioners, since they do not claim to be entitled
to the position of Senator, do not have the legal
standing to file this case. One of the issues raised
here is the legal personality of the petitioners to
file or seek the ouster of Gordon as senator. So the
court ruled that since they do not claim the title as
senator, they do not have the legal standing to
file a case for quo warranto. As earlier said, the
PNRC is not a GOCC therefore within the ambit of
Section 13 Article VI.
On Gordon’s MR of its decision declaring void the
PNRC Charter (RA 95) “insofar as it creates PNRC
as a private corp. & it should incorporate under
Corp. Code”, SC modified its decision. The
constitutionality of RA 95 was not raised as an
18 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
issue by the parties & should not have been
passed upon by the SC. The PNRC is sui generis in
nature; it is neither strictly a GOCC nor a private
corporation. RA 95 remains valid and
constitutional (Liban vs. Gordon, 18 January
2011).
What therefore is the nature of PNRC? It is
non-profit, humanitarian organization although
performing public functions. In fact, it has its own
charter. The ruling of the court in this case is that
since the PNRC although organized under the
provisions of the General Corporation Law, upon
filing of a Motion for Reconsideration by Gordon,
this issue is never ruled. (Dili gyud siya complete
sentence pagkaingon ni Sir.)
So it is SUI GENERIS. (Just like President Digong.
SUI GENERIS). It is neither a GOCC or a private
corporation. So RA 95 continues to be valid and
constitutional.
The writ of quo warranto is never directed to an
officer as such, but always vs. the person -- to
determine whether he is constitutionally & legally
authorized. Hence, a judgment in quo warranto
does not bind the public officer’s successor in
office. Here, what was threshed out in court was
the qualification & right of Mendoza to the
contested position xxx as vs. Allas solely and not
vs. Allas’ successor Olores. Neither Allas or the
Customs Bureau is personally liable for petitioner’s
back salaries. (Mendoza vs. Allas, 302 SCRA 623)
In the case of Mendoza vs. Allas, Mendoza did
not occupy the position of Director of Bureau of
Customs Investigation Service.. It was occupied
by Allas and so Mendoza filed this petition for quo
warranto petition. This petition must be filed within
1 year from time of ouster of the public officer.
Another important concept is the writ of quo
warranto is always against a person NOT directed
to such officer as a being. When the writ of quo
warranto was issued by the court, the defendant
no longer occupied the position because he got
promoted. At the time of the issuance of the
writ, somebody else occupied the position. The
writ of quo warranto is always directed against
the person. This writ cannot be enforced against
the successor because he was not made a party
to the case.
 2016 Public Officers & Corporation 4th yr Review
Another issue is can the BOC be made liable
personally for the back salaries of petitioner? No.
Allas here is considered a de facto public officer.
So prior to the declaration, Allas occupied the
position in good faith so BOC cannot be held
liable for back salaries. Neither should the BOC be
held liable beacasue he was not a party to the
case. A judgment is quo warranto is not binding
upon the successor in office of the defendant
public officer.
• Petitioner, albeit lacking in qualifications,
was appointed by the President as BJMP
Director and served for 6 days before
the appointing authority recalled his
appointment. BJMP cannot be liable for
his salary claim as it was not a party in the
quo warranto petition (Engano vs. CA, 493
SCRA 324).
• Though her term as CSC Commissioner –
on an appointment issued to her on
6/11/93 – had expired on2/2/99, Gaminde
served as de facto officer in good faith
until 2/2/00 (Gaminde vs. COA, 13
December 2000).
The case of Engano vs. CA, in here Engano was
appointed as the Director of Bureau of Jail
Management and Penology but he served the
position for only 6 days because he was
disqualified by reason for lack of qualifications. He
should be considered as a de facto officer for the
period of 6 days as he occupied the position. But
the BJMP cannot be held liable for the salary
because it was not a party of the petition for quo
warranto.
In Gaminde vs. COA, under the Constitution the
term of a commissioner is 7 years. In this case she
assumed office more than a year after the
commencement of her term.
What do you mean by “commencement of the
term” ? It should start on February 2 even if the
public official assumed office by valid
appointments. The 7 year termed should be
counted not from the time of her assumption to
office but rather from the time of expiration of the
term of her predecessor.
Now in this case, she was able to get an opinion
from the legal counsel of the Office of the
19 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
President to the effect that her term would end on
Feb 2, 2000 and so she served office way beyond
the end of her term which should have been Feb
2, 1999. Nonetheless, the court ruled that since
she occupied the office in good faith after the
expiration of her term she should be considered a
de facto officer entitled to the salaries and other
benefits. This should also apply to her staff.
Representatives of ex-officio members of the NAC
are not de facto officers because they were not
appointed but merely designated to act as such.
They are not entitled to something their own
principals are prohibited from receiving. Nor can
they claim good faith given the express
Constitutional prohibition (National Amnesty
Commission vs. COA, 437 SCRA 670).
In the case of National Amnesty Commission vs.
COA, the concept of a de facto officer has no
application to representatives of ex officio officers
in governing boards of GOCCs.
Designation is different from appointment. When
a person, an agent, is designated to represent an
ex officio member (Meaning, by reason of office
he should be made a member. For example the
Finance Secretary should be ex officio member of
the Monetary Board. Now if an agent represents
him in the Monetary Board, that representative, a
designate, cannot claim any emolument if the
principal himself is not so allowed under the
Constitution. This concept of a de facto officer
has no application to a mere designate or
representative of an ex officio member. These
people were not appointed but designated to
such office. They are not entitled to receive
anything, any compensation just like their
principal even if they are in good faith. This is
under the constitutional prohibition on indirect
compensation and Article VII Section 13 as
applied to the Heads of the Departments to the
Executive Branch.
Section 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in
this Constitution, hold any other office or
employment during their tenure. They shall not,
during said tenure, directly or indirectly, practice
any other profession, participate in any business,
or be financially interested in any contract with, or
 2016 Public Officers & Corporation 4th yr Review
in any franchise, or special privilege granted by
the Government or any subdivision, agency, or
instrumentality thereof, including
government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.cralaw
The spouse and relatives by consanguinity
or affinity within the fourth civil degree of
the President shall not, during his tenure,
be appointed as Members of the
Constitutional Commissions, or the Office
of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of
bureaus or offices, including
government-owned or controlled
corporations and their subsidiaries.
Civil Service
• No public officer shall be removed or
suspended except for cause as provided
by law [Art. lX-B, Sec. 2(3) Const.; Sec. 36,
PD807; Sec. 46, EO 292]
• Purpose of the civil service system:
application of merit system instead of
spoils system
(Example: Meram vs. Edralin, 154
SCRA 238)
• Scope: Art. lX-B, Sec. 2(1) Const.
• Civil Service Commission is the sole arbiter
of controversies relating to the civil
service; exercises exclusive jurisdiction
over all cases involving personnel actions
xxx
Example: NIA RM Corsiga vs.
Defensor & Ortizo, 391 SCRA 267
Let’s go to the concept of Civil Service. One
important tenet in the Civil Service System is the so
called security of tenure guarantee.
What is this “Security of tenure guaranty”? This has
been asked in the Bar.
Simply put under Article IX Section 2, no public
officer shall be removed or suspended except by
cause as provided by law in relation to the
Revised Administrative Code, Section 46 and Civil
Service Law Section 36.
The objective of the Civil Service system is to
apply merit system instead of spoils system.
In the case of Darang vs. Edralin, there is this
vacant position of Administrative Officer V in the
Bureau of Forest Development. There were two
20 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
contenders- Darang and Edralin. Darang is the
next-in-rank, Administrative Officer III filed a
general application for the vacant position.
Edralin wrote a letter to the President Marcos
introducing himself and saying that he is from
Ilocos and so he was appointed. The SC said that
the appointment should not be on the basis of
relation but rather on merit and fitness tests. So the
court nullified the appointment of Edralin.
The CSC administers the civil service system. It is
the sole judge of any question pertaining to the
civil service. Any controversy involving the civil
service. Under the Constitution, the CSC has the
exclusive power to decide cases involving
personnel action including appointment,
promotion, reassignment, demotion, etc.
In the case of Corsiga vs. Defensor & Ortizo, this
case arose because Corsiga issued an order
reassigning Ortizo to some workplace. So Ortizo
filed this case the court presided by Judge
Defensor and Corsiga filed a motion to dismiss.
The question now is WON the court has
competence to take cognizance of the case?
The court ruled it should be the CSC because
under the Constitution it the sole arbiter of all
issues in the civil service system after exhausting all
administrative remedies.
The case involves personnel action, i.e., petitioner
questions the summary reallocation & demotion
directed by the DBM w/c resulted in the
diminution of his benefits (summary demotion by
DBM from his post as LTFRB Atty. Vl, SG 26 to SG
25). Proper remedy is not before the OP but to
question the DBM denial of his protest before the
CSC w/c has exclusive jurisdiction over cases
involving personnel action. In turn, the CSC
resolution may be elevated to the CA under Rule
43 and finally, before the Supreme Court (Go vs.
CA, 626 SCRA 180). Here, SC applied substantial
justice, reversing the CA dismissal. The SC voided
the reallocation & ordered Go’s reinstatement to
SG 26.
In the case of Go vs. CA, here Go occupied the
petition of Attorney 6 in LTFRB. The DBM made this
questionable rule. They reallocated the salary in
the position occupied by Go from salary grade 26
to 25. There was this salary reallocation and
demotion ordered by the DBM of the position
 2016 Public Officers & Corporation 4th yr Review
occupied by petitioner Go plus the diminution of
his benefits.
What is therefore the proper remedy of the
aggrieved party here? It should not be before the
Office of the President. So if the DBM issued this
summary reallocation, next step would be to file a
motion for reconsideration. It should not be
before the Office of the President but rather to
question the denial of the DBM of his protest
before the CSC. Because the CSC under the
Constitution has the exclusive competence over
cases pertaining to personnel action and from the
CSC what is the next remedy? An appeal to be
taken from the decision or resolution of the CSC to
the CA under Rule 49 and then after before the
SC. The SC here voided the directive of the
DBM.
Law on Administrative Jurisdiction vs. public
school teachers
• CSC does not have original jurisdiction
over admin case vs. public school
teacher
• Sec. 9 of the Magna Carta for Public
School Teachers (RA 4670)
• Coverage of term “teacher”: all persons
engaged in classroom teaching on full
time basis including guidance counselors,
school librarians, industrial arts or
vocational instructors and all other
persons performing supervisory or
administrative functions
RA 4676 or the law on administrative proceedings
and jurisdiction in the administrative cases filed
against public school teachers will be on the basis
of Magna Carta Law. Section 9 provides for the
creation of an Investigating Committee of the
DepED composed of District Superintendent as
Chairman and district supervisor and a member
of PTA as members. There must be a
representative of the Teachers’ Association made
a member of the committee.
The CSC has concurrent authority over cases of
public school teachers. It is not even a case of
exclusive authority on the part of DepEd. The
CSC does not have original jurisdiction over
administrative cases againt the public school
teacher.
21 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
Exclusions to the term “teacher”
• Public school teacher in the professional
staff of state colleges or universities
• School nurses, physicians, dentists and
other school employees in the category
of medical and dental personnel.
The term teacher refers to a person engaged in
classroom teaching including guidance
counselors, school librarian, instructor and other
persons performing administrative or supervisory
functions. But the term teacher does not include
a member of the medical staff. For example,
physician, dentist, nurse, any employee under the
category of medical and dental personnel. A
teacher here, for purposes of applying RA 4670,
also does not include professors of state colleges
and universities.
Cases
• CSC does not have original administrative
jurisdiction vs. a public school teacher
(Emin vs. De Leon, 378 SCRA 143)
• Admin supervision over court employee
belongs to S.C. under Sec. 6, Art. Vlll
(Const) whether offense was committed
before or after employment in judiciary,
but estoppel applies (Ampong vs. CSC,
563 SCRA 293)
• Jurisdiction is not lost upon instance of
parties. It cannot be transferred to OMB,
even w/DECS agreement (Ombudsman
vs. Estandarte, 13 April 2007)
Emin vs. De Leon. Emin occupied the position of
non-formal education supervisor. He was charged
with dishonesty and misconduct,etc. in
connection with his issuance of fake certificate of
teachers eligibility. He was charged before the
CSC. Later on, he questioned the eligibility of the
CSC contending that it is the DepEd that has
jurisdiction over the case under the Magna Carta.
The SC applied the doctrine of estoppel because
he actively participated in the proceedings
before the CSC. As I mentioned before, the
jurisdiction is concurrent.
Ampong vs. CSC, Sarah Ampong took a teachers
examination on behalf of her friend. At the time
she committed the offense she was a public
school teacher but at the time the administrative
case against her before the CSC, she was already
a clerk to the RTC. The Constitution (Section 6
Article VIII) states that it is the SC which has
 2016 Public Officers & Corporation 4th yr Review
supervision over court personnel. SC has
jurisdiction to take cognizance of the
administrative case even if the offense was
committed prior to her joining the judiciary or
after such year when a case was filed before the
CSC. However, Ampong actively participated in
the CSC proceedings. Again the SC said that
although it has the authority under the
Constitution to hear and decide the case,
nonetheless because of estoppel, the CSC had
already acquired jurisdiction.
In Ombudsman vs. Estandarte, jurisdiction is
conferred by law. It cannot be lost simply at the
instance of one of the parties. So one of the
parties filed the case before the DepEd but later
on they changed their mind and wanted it to be
transferred to the Office of the Ombudsman. The
DepEd already acquired jurisdiction upon the
filing of the administrative case. It cannot be
transferred even if there is agreement between
the parties.
The DepEd does not have exclusive disciplinary
authority over public school teachers. RA 4670
does not confer exclusive jurisdiction to DepEd
nor prescribe exclusive procedure in
administrative investigation vs. them. The
Constitution cannot be restricted in meaning by
RA 4670 w/c is of earlier enactment. Sec. 9 of said
law refers only to specific procedure to be
followed by DedEd in administrative investigation
(Ombudsman vs. Masing, 542 SCRA 253).
What is the nature of the DepEd jurisdiction over
administrative cases filed against public school
teachers?
The authority of DepEd is not EXCLUSIVE judiciary
authority. In fact, the provisions of this law (RA
4670) do not pertain to exclusive authority nor
confer or prescribe exclusive procedure in the
conduct of administrative investigation over the
cases of public school teachers. Rather, this law
simply refers to a specific procedure to be
followed by the investigating committee of the
DepEd under Section 9 of RA 4670.
• Special laws, such as RA 4670, do not
divest CSC of its inherent power to
supervise and discipline all members of
CS, including public school teachers (CSC
vs. Alonso, 589 SCRA 88).
• CSC, DepEd and the Board of Professional
22 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
Teachers-PRC have concurrent jurisdiction
over admin cases vs. public school
teachers (Puse vs. Santos-Puse, 615 SCRA
500).
• Under Sec. 23 of RA 7836 (Phil. Teachers
Professionalization Act of 1994), the Board
of Professional Teachers has power, after
due notice & hearing, to suspend or
revoke cert. of registration of professional
teacher for cause.
In CSC v Alonzo, the Magna Carta, a special law,
does not divest the CSC of it inherent power to
supervise and discipline all members of the Civil
Service. It can never be excluded because he
has a constitutional power to supervise all
members of the Civil Service including public
school teachers inspite the enactment of RA
4670.
In the case of Puse vs. Santos-Puse, the court rules
that the CSC, DepEd and the court have
concurrent authority over administrative cases
filed against public school teachers. To the
exclusion of other equally, competent authorities,
as what I have mentioned earlier.
Under Sec. 23 of RA 7836 (Phil. Teachers
Professionalization Act of 1994), the Board of
Professional Teachers has competence, after
observing the requitements of procedural dure
process, notice and hearing, to suspend or revoke
cert. of registration of professional teacher for
cause. So pati substantive due process.
• Since CSC first acquired jurisdiction
because the complaint was filed before it,
it had the authority to proceed & decide
the case to the exclusion of DepEd &
Board of Professional Teachers (Pat-og Sr.
vs. CSC, 06/05/13).
• While the Ombudsman has concurrent
admin disciplinary authority with DECS
over public school teachers, the
Ombudsman may refer, at its option, a
complaint to the proper disciplinary
authority under Sec. 23 of RA 6770.
Respondent is a public school teacher
covered by RA 4670, hence the
proceedings before the DECS would have
been the more appropriate venue to
resolve the dispute (Ombudsman vs.
Delijero, 10 October 2010).
 2016 Public Officers & Corporation 4th yr Review
In Pat-og Sr. vs. CSC, since the Commission
acquired first jurisdiction over the complaint as it
was filed firstly before the CSC, therefore the CSC
has the power to hear and decide the case to
the exclusion of the DepEd and the Board of
Professional Teachers.
Under Sec. 23 of RA 6770, if the administrative
complaint is filed against the public school
teacher before the Office of the Ombudsman, he
may exercise the option of referring the
complaint to the proper disciplinary body which
in this case is the Investigating Committee of the
DepEd, in this case. Simply an option. It is not a
mandatory requirement.
In the case of Ombudsman vs. Delijero,
considering that the respondent is public school
teacher therefore covered under the Magna
Carta Law, the proceedings must be before the
DepEd which have the primary authority.
Higher Education Modernization Act of 1997 (RA
8282)
• Power of university’s Board of Regents
under RA 8282 to discipline its officials and
employees not exclusive but concurrent
with CSC. A case vs. a university official
may be filed either w/ the state
university’s BOR or directly w/ the CSC.
The Constitution grants to CSC jurisdiction
over all civil service positions in the
government service, whether career or
non-career.
• Academic freedom cannot be invoked
where there are allegations of CS law and
rules violations (CSC vs. Sojor of Negros
Or. State Univ., 22 May 2008).
The Higher Education Modernization Act of 1997
aka as RA 8282. Again the case of concurrent
jurisdiction. If you file an admin case against a
university official, of course you may file a case in
the Board of Regents on the basis of what is
provided under RA 8282 or if the employee
belongs to a state university or institution, before
the Ombudsman or CSC. This is really a case of
concurrent jurisdiction. The Board of Regents of
the university under this law has the competence
to discipline its own officers and employees but
this authority is not exclusive but concurrent with
CSC and Ombudsman.
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A case against a university official may be filed
before the Board of Regents, CSC or
Omdudsman. Because under the Constitution,
the Commission has the jurisdiction over all civil
service positions in the government office
whether plantilla or non plantilla.
In CSC v Sojor, Sojor, of the Negros Oriental State
University, was charged with dishonesty,
misconduct, nepotism etc. and so the admin
cases were filed against him before the CSC and
the commission took cognizance of the
complaint. Later on Sojor argued that under RA
8282 it should be the Board of Regents that ought
to take cognizance of the case filed against him
because the Board appointed him to his position
as university president. The SC said jurisdiction was
concurrent and not exclusive.
In this case Sojor also argued that he has this
academic freedom. So it should be the Board of
Regents. The court said academic freedom
cannot be asserted where the violations refer to
violations of the CS Law and Rule and Regulations
clearly within the competence of CSC.
Dishonesty, misconduct, nepotism are grounds
under Section 6 PD 87.
GOCCs w/o original charter not covered by Civil
Service Law
• Test in determining whether a GOCC is
subject to CS Law: manner of its creation.
a. PNOC-EDC vs. Leogardo, 175 SCRA 26
b. EO 180 is not applicable to BDC but
applies to GOCCs w/original charter.
(Bliss Development Corp. Employees
Union vs. Calleja, 237 SCRA 271)
c. Food Terminal Inc. (1999 BQ)
(Lumanta vs. NLRC, 170 SCRA 79)
d. PVB (RA 3518)
(PVBEU vs. PVB, 24 August 1990)
e. Phil. National Construction Corp.
(Macalino vs. Sandiganbayan, 376
SCRA 452)
What corporations of govt without original charter
can be declared by the court as not covered by
the CS Law Rules and Regulations?
First off. What is the test to determine whether a
GOCC is subject to the civil service law? It is the
manner of the creation of the GOCC. If the
GOCC was created under a special law passed
 2016 Public Officers & Corporation 4th yr Review
by Congress it should be considered a GOCC
with original charter. If the GOCC was created
under provisions of the Corporation Code,
therefore registered with SEC, it is not covered by
Civil Service Law and therefore any violation or
complaint filed by an employee of a GOCC
without original charter should be brought not
before the CSC but rather the DOLE.
In the case of Phil National Oil Company, SC ruled
that this GOCC is without original charter and not
covered by the CS rules. It follows that the
Executive Order 180 refers to the mechanism for
the resolution of ER-EE union as provided by law
does not apply to the PDC but of course EO 180
applies to GOCCs with original charter because
the employees are under CS system. This
development corporation is not a GOCC with
original charter therefore its employees are not
covered by the CS law, rules and regulations.
Food Terminal Inc. used to be the marketing arm
of the then National Grains Authority now NFA. FTI
is not a GOCC with original charter. The EEs of FTI
are not subject to CS Law Rules. So any complaint
filed by or against them should be brought before
the DOLE not CSC.
Phil Veterans Bank was created on the basis of a
law, RA 35 but by express provision of law it should
not be considered a GOCC with original charter
because even its own board of directors is
composed of private individuals and not
government officers. They are appointed to such
positions. Here the SC in the case of Phil Veterans
Bank Employees v Phil Veterans Bank ruled that
PVB is not a government entity so any complaint
filed should be filed before the DOLE.
Phil National Construction Corporation, again a
GOCC without original charter. But if it is a
criminal case, the employees of PNCC are
considered as public officers under the
Sandiganbayan Law.
What is the status of PNRC? Did Gordon
automatically forfeit his Senate seat in holding the
post of PNRC Chair? (sets aside Baluyot vs.
Holganza ruling, 2/9/00
*The PNRC is not a GOCC but a privately
owned, privately funded and privately run
charitable organization performing public
24 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
functions. It does not have government
assets & does not receive appropriations
from Congress
*PNRC Board of Governors, w/c exercises
all corporate powers of PNRC, elects the
Chair.
*Chairman is not an official or employee
of the Government, hence no violation of
Sec. 13, Art. Vl of the Constitution.
(Liban vs. Gordon 593 SCRA 68)
In Liban v Gordon, PNRC is not a government
entity. It does not have government assets neither
does it receive any funding or appropriation form
the Congress. In fact the Board of Governors of
PNRC exercise all the corporate powers and they
elect the chair. The chair is not a government
official.
Of course the GOCCs with original charter are
covered by the CS Law. It follows that the hiring
and firing of officers are covered by the CS Law
rules and regulations.
GOCCs covered by Civil Service Law
• Hiring and firing of employees of GOCCs
with original charter governed by CS law
• Duty Free Phil. was created under EO 46 to
augment tourist service facilities & to
generate FX and revenue. Jurisdiction
over a dismissed DFP employee is lodged
w/CSC & not NLRC (DFP vs. Clerk Mojica &
NLRC, 471 SCRA 776).
• AFP-RSBS is a GOCC under RA 9182 or the
Special Purpose Vehicle Act of 2002
established to guarantee continuous
financial support to the AFP military
retirement system. Its funds are in nature
of public funds
(Alzaga vs. Sandiganbayan, 505
SCRA 848)
The case of Duty Free Phil v Mojica, Duty Free was
created under EO 46 for a governmental purpose
in order to augment tourist service facilities and
for government to generate foreign exchange
revenues. Therefore any question on the dismissal
of an employee of Duty Free should be lodged
not before the NLRC but rather before the CSC.
In Alzaga v SB, we mentioned that the RSBS of the
AFP is a GOCC with original charter RA 9182 also
 2016 Public Officers & Corporation 4th yr Review
knows as the Special Purpose Legal Act of 2002.
The reason for creation of RSBS is to provide
financial support, guarantee the continuous
financial support for the members of AFP whether
in the active service or those already retired. They
are not covered by SSS or GSIS because they
have their own retirement system under RA 9182.
It follows that the fund of RSPS are public funds.
Misappropriation of these funds amount to
malversation.
PD 198 as amended by PD 1479 and RA
9286
• Local water districts are subject to Civil
Service Law. Sec. 25 of PD 198 is already
removed by PD 1479 (Hagonoy Water
District vs. NLRC, 165 SCRA 272).
• Local Sanggunian resolution, although
necessary for final creation of WD, is not its
charter. PD 198 is a special law providing
for the source of authorization & power to
form & maintain a district (DCWD vs. CSC,
201 SCRA 605).
In earlier cases involving the water districts all over
the country, there was as issue as to the
classification of water districts. Take note Sec 25 of
PD 198 which declared that employees of water
districts are not covered by the CS law rules has
already been deleted by the amendatory law PD
1479 further amended by RA 9286 to the effect
that water districts all over the country are
government entities with original charter and
there empoyees are civil service servants
therefore, public officers.
Water districts are subject to the CS law. There is
this provision in PD188 as amended stating that on
the basis of a resolution passed by the
Sanggunian the local government unit may
establish its own water district.
The question now is that what is the law of the
water district? Should it be the resolution? The SC
said NO. The resolution simply implements what is
provided under PD 198. The law applicable to
water districts is not the resolution passed by their
local Sanggunian but rather PD 198.
COA Audit of GOCCs
• Constitution mandates COA to audit
GOCCs with original charter like water
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districts (De Jesus vs. COA, 403 SCRA 666).
• ’01 BQ: Effect of privatization of PNB on
audit jurisdiction of COA
• BSP is a public corporation or a
government agency or instrumentality
with juridical personality created under
CA 111 as amended by RA 7278 to
implement a state policy, i.e. inculcate in
the youth patriotism, discipline,
responsibility & moral values. It is
classified as an attached agency of the
DepEd under EO 292 (BSP vs. COA, June 7,
2011).
Another issue in this case is as to the competence
of the COA to audit. Yes of course COA has the
authority to audit the funds of water districts. The
Constitution mandates COA to audit GOCCs with
original charter including water districts.
(BQ) What is the effect of the privatization of the
Phil National Bank on the audit power of the COA.
Take note the PNB used to be a GOCC with
original charter. When it was privatized, it means
that COA lost its authority to audit. Unless if the
government still has infusion.
In BSP v COA, the court ruled that the Boy Scout
of the Philippines is a public corporation as well as
an instrumentality of the government. It’s
personality is created by CA 111 as amended by
RA 7278 for a governmental purpose enshrined in
the constitution itself. That is to promote
patriotism, discipline, and moral values. Under the
EO 292 or the Revised Admin Code, BSP is an
attached agency of the Department of
Education.
Not all corporations w/c are not GOCC, are ipso
facto private corporations. There exists another
class known as public corporations w/c are
treated by law as instrumentalities or agencies of
government w/c are subject not to tests of
ownership/economic viability but public
purpose/interest. BSP is a public corp. created
by law for a public purpose attached to DepEd
under its charter and EO 292. Its funds are
subject to COA audit.
The rule here is not all corporations which are not
GOCC are automatically private corporations
because there is another category known as
 2016 Public Officers & Corporation 4th yr Review
public corp. Public corporation in the sense that it
is an instrumentality of government that performs
a govermental task. It is created for public
purpose or public interest. So the test here of the
public corporation is not ownership but rather the
public interest or public purpose. We already
mentioned the BSP has two-fold nature: It is
created by law for public purpose and it is also an
instrumentality of govt. Its funds are subject to the
audit of COA.
An employee of a GOCC, even if organized
under the general law, is considered resigned
upon filing certificate of candidacy. He still
comes within purview of Sec. 66 of Omnibus
Election Code which provides that “any person
holding public appointive office including
officers & employees in GOCCs shall be
considered ipso facto resigned from office upon
filing of his certificate of candidacy”
(PNOC-EDC vs. NLRC, 222 SCRA 831).
Phil National Oil and Energy Company Devt Corp
v NLRC what happens if an employee of a GOCC
more so without an original charter files a
certificate of candidacy. Should he still be
considered a government employee? Should he
be considered automatically resigned on the
basis of Sec 66 of the Omnibus election law?
Section 66 provides that any person holding
public office by appointment including officers
and employees of GOCCs shall be considered
ipso facto resigned from office upon his filing of
COC. The SC ruled that since the law itself did not
make any distinction whether the GOCC be with
original charter or without it means that Sec 66
applies to all officers and employees of both
GOCCs with or without original charter. An
employee of a GOCC without original charter is
considered automatically resigned upon his filing
od COC.
• Civil Service Law applies to Philippine
Postal Corp. as regards personnel matters,
but its BoD is authorized under RA 7354 to
formulate its own compensation structure
and position classification, including
the payment of RATA. BoD authority is not
absolute as compensation system must
conform to RA 6758 (Intia, Jr. vs. COA, 306
SCRA 610).
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• DBM has sole power/discretion to
administer Compensation and Position
Classification System (CPSCS) of national
government.
• Compensation and benefits received by
PRA officials w/o DBM approval are
unauthorized and irregular (PRA vs. Bunag,
397 SCRA 27)
In Intia v COA, we know that the Philippine Postal
Corp is a GOCC with original charter RA 7384
therefore the CS Law Rules and Regulations are
applicable to the Postal Corp whenever there is
issue about personal actions but nonetheless, on
the basis of its charter, a GOCC may havethe
power to formulate its own compensation
structure and position classification even the
giving of benefits to its employees. This authority is
not absolute. There is still a need to comply with
the requirements embodied in Compensation
and Position Classification System RA 6758. There is
still a need to submit the structure to the DBM for
review and approval because the DBM has the
authority and discretion to administer this system
to prevent disparity.
In Phil Retirement Authority v Bunag, the SC
ruled that the compensation and benefits
received by the officers and employees of the
PRA should be reviewed and approved by DBM.
If unapproved by DBM, the benefits so received
by them are unauthorized. COA may disallow the
payment of the same.
GOCC Governance Act of 2011 (RA
10149)
• Applicable to all GOCCs and GFIs,
including their subsidiaries, but excluding:
a) Bangko Sentral ng Pilipinas
b) State universities and colleges
c) Cooperatives
d) Local Water Districts
e) Economic Zone Authorities
f) Research Institutions
The GOCCs as rule have the authority to provide
for their compensation scheme has already been
forfeited. Although this law applies to all GOCCs
and Government Financial Institutions,
nonetheless there are still exceptions. What
government entities are not subject to this act?
• The Bangko Sentral ng Pilipinas
 2016 Public Officers & Corporation 4th yr Review
• State universities and colleges
• Cooperatives
• Local water districts
• Research institutions
• Promotes financial viability & fiscal
discipline in GOCCs thru the Governance
Commission for GOCCs (GCG)
• Evaluates performance & relevance of
GOCCs, monitors their operations
• Repeals GOCCs’ charters w/c fix the
directors’ term by reducing it to 1 yr. with
holdover
• Incumbent CEOs & Appointive Directors
up to 6/30/11. Appointive Directors
appointed by the President .
• Per diems for actual attendance…
incentives as authorized by GCG
RA 10149
• Directors/Officers as fiduciaries of the
State
• Restitution and Prosecution of corrupt
public officers who collected abusive
perks & scandalously high compensation.
• Rationalization of salaries & benefits based
on performance of officials & employees
w/due regard to financial capability of
GOCC.
• 1-yr. term limit of CEO of GOCC; elected
annually by BOT/BOD; may be removed
by Board for cause [clear accountability
to Governing Board]
The objective of this governance act is to have
financial viability because of abuses in the past
years. This law likewise reduced the term of
officers of GOCCs covered by this law to 1 year.
The payment of per diems is on actual
attendance. Under this law directors and
officers are considered fiduciaries. Another
important provision in this law is the prosecution of
corrupt public officers.
• Abolition of Career Executive Service
Board (CESB) by CSC is an ultra vires act.
CSC powers to reorganize are confined to
offices under its control (Eugenio vs. CSC,
31 March 1995)
• Abolition of Merit System and Protection
Board (MSPB in the CSC as created under
PD 1409) by CSC is valid; CSC authority
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under Sec. 17, Book V, EO 292 “to effect
changes in the organization as the need
arises” (Rubenicia vs. CSC, 31 May 1995)
• CSC could rule on administrative
decisions on appeal before MSPB
(Fernando vs. Sto. Tomas, 234 SCRA 548)
In the case of Eugenio vs. CSC, the issue raised
here is does the CSC have the competence to
abolish the Career Executive Service Board
(CESB)? The SC rules that he does not have the
competence. Even if the CSC under the law (EO
292 or the Revised Administrative Code, Section
17), the authority of the CSC to effect changes in
the organization as the need arises, this does not
justify abolition of the CESB because the CESB is
not part of the organizational structure of the
Commission although attached to the
Commission.
There must be a distinction here between the
CESB and the Merit System and Protection Board.
Both government offices are created by law but
the SC sustained the authority of the Commission
to abolish the MSPB in the case of Rubenicia vs.
CSC, because this falls within the ambit of
authority of the CSC to effect changes in the
organization as the need arises. The MSPB is part
of the CSC.
In the case of Fernando vs. Sto. Tomas, CSC
could rule on administrative decisions on appeal
before MSPB. The CSC would rule on this
administrative cases ruled by MSPB.
July 9, 2016
Classification of Civil Service
I. Under PD 807 and EO 292
a. Career service
b. Non-career service
ll. Under Art. lX-B, Sec. 2(2), 1987 Constitution
a. Competitive positions
b. Non-competitive positions
(Appointments in CS shall be made according to
merit & fitness, to be determined xxx by
competitive examination.)
• Basic features of the civil service: merit
and fitness rule & security of tenure
Positions in the Civil Service are classified under
the Civil Service Law in the PD 807 and the
Revised Administrative Code EO 292 into
• Career Service and
 2016 Public Officers & Corporation 4th yr Review

• Non-career Service.
What characterizes the career service?
Whereas under the Constitution, positions are
classified into: 1. The career service is characterized by entrance
• Competitive and on basis of merit and fitness.
• Non-competitive.
2. Then another feature of the career service is
Career Service the security of tenure.

• What characterizes the career 3. The third one is the opportunity for
service? (’99 BQ) advancement to higher position.
• What is included in the career
service? (’99 BQ) What are included in the career service?
1. Open career
2. Closed Career • Open career - so the need for qualifying
3. Positions in CES examination as a prerequisite for
4. Career officers other than CES appointment to public office.
5. Commissioned officers/enlisted men in
AFP • Closed career – referring to highly
6. Personnel of GOCC technical or scientific positions

• Importance of security of • Positions in the career executive service –

tenure as identified by the Career Executive
Service Board (CESB) which are
appointments to which are done by the
President.
Under Article IX B, Section 2 of the Constitution:
Section 2. x x x • The career officers, other done the CES –
for example, the foreign service
2. Appointments in the civil service shall
be made only according to merit and • Commissioned officers and enlisted
fitness to be determined, as far as personnel of the Armed Forces of the
practicable, and, except to positions Philippines
which are policy-determining,
primarily confidential, or highly • The employees, officers of the
technical, by competitive government-owned or controlled
examination. corporations with original charter

The security of tenure is important in order to

There are positions under the category of
non-competitive that do not need to go to the
process of qualifying competitive examination.
There are two important features of the Civil
Service System.
As we mentioned earlier, the Security of Tenure
Guarantee. No public officer or employee should
be removed or suspended except for causes
provided by law.
The other feature is this merit and fitness rule.
promote professionalism. Of course we need to
have high morale in the public service.
• Three major levels/classes of positions in
the Career Service
1) First level includes clerical, trades, crafts
and custodial services positions
2) Second level includes professional,
technical and scientific positions… up to Division
Chief level
3) Third level covers positions in the Career
Executive Service xxx as identified by the CESB,
all of whom are appointed by the Pres.

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 2016 Public Officers & Corporation 4th yr Review
There are three major levels or positions in the
career service.
The first level pertaining to clerical, trades, crafts
and custodial service positions.
The second level would include professional,
technical and scientific positions, up to the level
of the Division Chief.
Whereas the third level covers position in the
career executive service as so administered by
the CESB and these positions are identified by the
Career Executive Service Board, all of whom are
appointed by the President.
• Qualification in an appropriate
examination is required for appointment
to positions in the first and second levels in
the career service; provided that
whenever there is a civil service eligible
actually available for appointment, no
person who is not an eligible shall be
appointed even in a temporary capacity
to any vacant position in the career
service.
• Exceptions: when immediate filling of
vacancy is urgently required in the public
interest or when vacancy is not
permanent in w/c case temporary
appointments of non-eligibles may be
made in absence of eligibles.
The rule here is qualification in an appropriate
examination is required to be appointed to any
position in the first two levels in the career service
provided that whenever there is a civil service
eligible actually available for appointment, no
person can be appointed even in the temporary
capacity whenever he is not eligible. So the rule
here is appointment shall only be given to a civil
service eligible available for appointment for such
position.
What are the exceptions to the rule? When there
is an immediate need to fill the vacancy to
promote public interest or where the vacancy is
not permanent in which event a temporary
appointment even of a non-eligible will be made
in the absence of eligible.
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A non-eligible may not be appointed to any or to
positions in the first two levels of the career service
when there is civil service eligible. Only when
there is urgent need to fill the position or where
the vacancy is temporary in nature meaning
there will be appointment even to non-eligibles.
Positions in the CES (3rd level) under Sec. 8, Bk. V,
EO 292
• Undersecretary, Asst. Secretary, Bureau
Director, Asst. Bureau Director, Regional
Director, Asst. Regional Director, Chief of
Department Service and other officers of
equivalent rank as may be identified by
the CESB, all of whom are appointed by
the President (Office of the Ombudsman
vs. CSC, 451 SCRA 570). 3rd level eligibility
is not required for 3rd level officials of the
Office of the Ombudsman.
Take note of these positions belonging to the third
level. The requirement of having a career
executive service eligibility or positions belong to
the third level as so enumerated under the
Revised Administrative Code E0 292, positions of
Undersecretary, Assistant Secretary.
Let me mention that there are positions of
undersecretary and asst. secretary which are
co-terminus. So not all positions of undersecretary
and asst. secretary belong to the career service
third level.
Undersecretary, Asst. Secretary Undersecretary,
Asst. Secretary, Bureau Director, Asst. Bureau
Director, Regional Director, Asst. Regional
Director, Chief of Department Service and other
officers of equivalent rank as may be identified by
the CESB, all should be appointed by the
President.
If the official is not appointed by the President, it
does not belong to this category.
It should already be emphasized that this
requirement in the third level career executive
service eligibility applies to positions in the third
level of the executive branch of government. The
third level eligibility is not required or the
management level positions in the constitutional
offices such as the Office of the Ombudsman, the
 2016 Public Officers & Corporation 4th yr Review
Supreme Court, Constitutional Commissions, or
even the Commission on Human Rights.
The positions of Graft Investigation Officer lll [de
Jesus, Clemente & Carandang] are highly
technical in nature, as are those of the judiciary,
as they involve investigatorial, quasi judicial &
prosecutorial functions, hence, the appointment
to said positions is characterized by security of
tenure (OMB vs. CSC, 451 SCRA 570).
Ombudsman v. Civil Service Commission -What
happened in this case is because of a
department of the Civil Service Commission call
these individuals, De Jesus, Clemente and
Carandang. At the time they were Graft
Investigation Officers to acquire career executive
service eligibility in order to have security of
tenure guarantee.
The Supreme Court Ruled that this position of
Graft Investigation Officer are highly technical
and just like those positions in the judiciary, they
involve investigatorial, quasi-judicial and
prosecutorial functions and the appointment to
such positions is protected(?) over by the security
of tenure guarantee despite the lack of this CES
Eligibility because in their case, these individuals,
appointing power is not the President but the
Ombudsman. (Clemente is now the Deputy
Ombudsman in the Visayas. Carandang is the
present Over-all Deputy Ombudsman)
The Court ruled further in this case of Carandang
et. al, to classify other positions, meaning general
positions which are not even enumerated under
the Revised Administrative Code EO 292 Book 5
and to require them to acquire CES Eligibility for
them to have security of tenure is
unconstitutional. It is in fact absurd. It will result in
any of the following instances:
It would be vesting the appointing power for
non-CES position. The position of Graft and
Investigating Officer is not among those listed so it
is non-CES position. So to vest the appointing
power for such position in the President would be
a violation of the Constitution because under Art.
XI, Section 6, it provides:
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Section 6. The officials and employees of the
Office of the Ombudsman, other than the
Deputies, shall be appointed by the Ombudsman,
according to the Civil Service Law.
So you will be already violating the Constitution if
there is still need for the appointment to be issued
by the President.
And the other situation would be including these
positions in the CES would run counter to Revised
Administrative Code because these positions
would be occupied by non-presidential
appointees. Carandang, Clemente et. al are not
appointees of the President.
To classify other positions (GIO lll) not included in
the enumeration as covered by the CES and
require appointees thereto to acquire CES or CSE
eligibility before acquiring security of tenure is
absurd & will lead to unconstitutional & unlawful
consequences. It will result either in
1) vesting the appointing power for
non- CES positions in the President,
in violation of the Constitution; or
2) Including in the CES a position not
occupied by presidential appointee,
contrary to the Rev. Admin. Code
(EO 292).
The enumeration in EO 292 states that the
appointing power is the President. Those positions
enumerated ought to be appointed by the
President.
The letter & intent of the law is to circumscribe the
Career Executive Service (CES) to CES positions in
the Executive Branch, & that the Judiciary, the
Constitutional Commissions, Office of
Ombudsman & CHR are not covered by the CES
governed by the CESB. Thus, the SC affirmed the
CA ruling to grant the petition of Mr. Inok for
security of tenure as Director ll of the COA despite
the absence of a CES eligibility (Inok vs. CSC, 02
July 2002).
Inok v. Civil Service Commission - We have here
the Director of the COA without a CES eligibility,
 2016 Public Officers & Corporation 4th yr Review
filed a petition that he should be granted security
of tenure over the objection of the CSC.
The court made it clear that the letter intent of the
law is to limit the CES requirement only to positions
in the CES belonging to the executive branch of
government. This requirement has no application,
does not apply to positions in the judiciary,
Constitutional Commissions, Office of the
Ombudsman and the CHR. And so the SC
affirmed the ruling of the CA in granting security
of tenure to Mr. Inok as Director of the COA
despite the fact that he did not possess eligibility.
The Third Level covers only positions in CES as
enumerated in EO 292 and those identified by
CESB as of equivalent rank, all of whom are
appointed by the President (Modesto Agyao Jr.
vs. CSC, 1/18/11). Position of Dept Mgr ll of PEZA is
not among those enumerated positions in CES,
much less a position requiring presidential
appointment. Agyao only needs approval of PEZA
Director General to validate his reappointment.
As he need not possess CESO or CSE eligibility,
the CSC has no valid & legal basis to invalidate
his appointment.
Modesto Agyao v. CSC - It must be stressed that
the omnibus positions so enumerated under the
Revised Administrative Code would require
appointment by the President.
Here, the position of the Department Manager of
the Philippine Export Zone Authority is not among
those listed or enumerated in the law, in the CES.
And the appointing power is not even the
President. The appointing power in the case of
Agyao is the Director General of the PEZA. The
requirment of the Commission that he should
have CES eligibility to acquire or for him to
acquire security of tenure is erroneous. In the
case of Agyao, the appointing power is the Head
of the PEZA not the President. The requirement
under the Revised Administrative Code
enumerating the positions and the appointing
power of the President does not apply to
Modesto Agyao.
Cases on Career Service
• Illegal dismissal of a career officer
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by changing his permanent
appointment to contractual
appointment (Palmera vs. CSC, 235
SCRA 87)
• Proximity rule: Salas’ position as
Internal Security Staff was remote
from the appointing authority
(Pagcor vs. Salas, 274 SCRA 414)
Palmera v. Civil Service Commission - We have
here an Assistant Regional Director of the Public
Works. He has been in the service for 34 years. He
was charged administratively and pending the
determination of the charges he was placed
under preventive suspension and when the
preventive suspension ended, he was already
given a contractual appointment. Later on, when
the period of the contract ended, he ___ and he
filed this case. Is this a violation of his security of
tenure. The SC ruled there was illegal dismissal of a
career officer by changing his permanent
appointment to contractual appointment.
PAGCOR v. Salas - An employee of PAGCOR who
was the subject of investigation because of the
alleged proxy betting. Subsequently, he was
removed. He occupied the position of Internal
Security Staff. In asserting the legality of the ouster
of Salas, the PAGCOR management argued that
his position belongs to non-career or he is primarily
confidential.
The SC ruled applying the proximity test, the
position occupied by Salas as Internal Security
Staff was distant from the appointing power. He
was not even reporting to the appointing
authority and the SC ruled that there was illegal
dismissal. There was a violation of the security of
tenure. Despite the nomenclature given to his
position as Internal Security Staff.
Non- Career Service
• What characterizes the non-career
service?
• What is included in the non-career
service?
1. Elective officials and their personal or
confidential staff
2. Department heads and other officials of
Cabinet rank xxx
 2016 Public Officers & Corporation 4th yr Review
3. Chairman and members of commissions
and boards with fixed terms of office and their
personal or confidential staff
4. Contractual personnel
5. Emergency and casual personnel
What characterizes the Non-Career Service?
1. entrance on the bases other than the
usual test of merit and fitness
2. the tenure is limited either to the period
provided by law or co- terminus with the
term of the appointing power or authority
or serves at the pleasure or displeasure of
the appointing power or is limited to the
duration of the specific project.
The non-career service is characterized on basis
other than merit and fitness.
For career service, it is characterized by merit and
fitness test not so in the case of non-career
service.
So characterized on basis other than by merit and
fitness. There is no security of tenure because
there is limitation. The officer holds office for
duration of the project to which he has been
appointed or he serves at the pleasure of the
appointing power or he is co-terminus to the
appointing authority.
Who are included in the non-career service?
• Elective officials -because they have a
fixed term of office together with their
personal or confidential staff.
• Department Heads or Secretaries in the
executive branch and other officials of
Cabinet rank - they belong to the
non-career because they serve at the
pleasure of the appointing power. They
serve at the pleasure of the President.
• Chairman and Members of Commission
with fixed term of office as provided in
their respective charter together with their
confidential and personal staff.
• Contractrual personnel
• Emergency and casual staff
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Cases on non- career services
• A non-career service employee is
protected from removal without just
cause. Robredo’s termination as
Proj. Director of Bicol River Basin
Devp’t Program - created under PD
412 – failed to state the ground of his
removal, hence, without cause
(Jocom vs. Robredo, 201 SCRA 73).
• Chair of the Commission on Filipino
Language is a non-career official
whose tenure of 7 years is fixed by
RA 7104; her removal is not at
pleasure of appointing authority
(Office of President vs. Nita
Buenaobra, 501 SCRA 303)
Jocom v. Robredo - The late DILG Secretary
Robredo. In his younger years he was then
appointed Vice President Laurel as Project
Director of the Bicol River Basin Development
Project. Subsequently, he was replaced by
Jocom on the basis of an appointment issued by
Laurel to Jocom. Robredo complained that there
was a violation, that he was removed without
valid cause.
The SC ruled that even a non-career service
officer is protected from this requirement – the
removal must be for just cause. In the case of
Robredo, there was no reason given for his
separation. There was no ground stated for his
removal, hence, without cause. There was indeed
violation of his tenure. Because he was appointed
to serve a __ term for the duration of a project.
Even a non-career service is still protected by this
requirement that the removal should only be for a
valid cause, just cause.
Office of the President v. Nita Buenaobra - Nita
Buenaobra occupied the position of Chair of the
Commission of the Filipino Language on the basis
of RA 7104. She had a term of 7 years. But on the
basis of investigation conducted, the Office of the
President removed her even without the end of
the 7-year term. The argument here is that she
serves at the pleasure of the appointing authority.
 2016 Public Officers & Corporation 4th yr Review
The SC ruled that the provision under the charter
of the Commission of the Filipino Language, the
Chair together with the members of the Board,
they have a term of 7 years provided or fixed by
law and they cannot simply be removed without
valid cause. They occupied the positions for fixed
term of office. They cannot be removed at the
pleasure of the appointive power.
Under the Constitution, we said that positions are
classified into competitive and non-competitive.
Appointments in the Civil Service shall be made
according to merit and fitness except as to
positions which are classified as non-competitive.
Art. IX- B, Sec. 2(2)
• Competitive positions: Appointments
in the CS shall be made according
to merit and fitness…
• Non-competitive positions
1. Primarily confidential – denotes not only
confidence xxx but close intimacy xxx
2. Policy determining
3. Highly technical
• Nature – and not label – that makes
it competitive. Executive has power
to declare classification of
non-competitive position (Sec. 12,
Bk. V, EO 292)
What are these non-competitive positions?
a) Primarily Confidential
b) Policy determining
c) Highly technical
Primarily confidential positions refer to those
occupied by officers not only because of their
competence but more of the close intimacy with
the appointing power. So to free(?) the head of
office, the appointing power from betrayal of trust
on confidential matters. So there is this close
intimacy between the appointing power and the
appointee.
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Policy determining positions refer to positions
which are classified as requiring the formulation of
policy of method of action.
Highly technical refers to position which is
scientific or highly technical in nature. So
possession by the incumbent of training of
superior degree.
Take note of these positions (competitive) is not
on the basis of label or nomenclature given to the
position but rather the nature of the functions
being performed by the incumbent.
The President, upon recommendation of the CSC,
has the authority to declare whether a position
belongs to a competitive or non-competitive
category.
MCQ: Who is not part of the non-competitive Civil
Service?
a) Employees of the Boy Scout of the
Philippines*
b) A person whose close intimacy to the
appointing power assures freedom of
intercourse without fear
c) A person who lays down principal or
fundamental guidelines
d) Chief of Staff of Congress
So not part of the non-competitive civil service will
be all of these upon ___ belong to the
non-competitive. Person whose close intimacy
with the appointing power assures freedom of
intercourse without fear. Meaning he is appointed
to a position classified as primarily confidential.
A person who lays down principal and
fundamental guidelines – policy determining
Chief of Staff of Congress - They belong to the
non-competitive positions.
The other one, the personal employees of the Boy
Scout of the Philippines belong to the competitive
civil service.
What’s the distinction between Term of office and
Tenure of the incumbent?
Term of office vs. Tenure of Incumbent
• Term – the time during w/c officer may
claim to hold office as of right and fixes
 2016 Public Officers & Corporation 4th yr Review
the interval after w/c the incumbents shall
succeed one another.
• Tenure – the term during which the
incumbent actually holds office.
• Importance of distinction: Constitutional
principle of non-removal without due
process of law would be negated if
Congress could legally make tenure of
officials dependent on pleasure of the
President by clothing the latter blanket
authority to replace xxx
Term of office refers to the period during which
the officer can claim as a matter of right the
possession of office. The time, the period within
which the officer may claim to hold office as of
right and fixes the interval after which the
incumbents shall succeed one another.
Tenure of office refers to the actual period during
which the officer holds office.
What is the importance of the distinction?
This should be seen in the light of what is
prescribed under the Constitution, that no public
officer or employee should be removed or
suspended except for a cause as provided by
law. In other words the Congress simply gives
blanket authority to the President for the latter to
determine the tenure of office of the public
officer whose term is provided by law. Otherwise
there will be a violation of the security of tenure
guarantee.
• 7 yr. term of office of the Chair & Members
of CHR under EO 163 is provided to
comply with Sec. 17(2), Art. Xlll, thus to
give CHR independence (Bautista vs.
Salonga, 172 SCRA 164). EO 163-A
providing that the tenure of said Chair and
members shall be at pleasure of the
President is unconstitutional.
Note: “The term of office & other qualifications
& disabilities of the Members of the Commission
shall be provided by law.”
Bautista v. Salonga - The Chair and the
Commissioners of the CHR, under the law, have a
fixed term of 7 years. Because of the requirement
of the Constitution, the term of office and other
qualifications and disabilities of the Members of
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the Commission of Human Rights shall be
provided by law. What is that? EO 163. So the SC
ruled that the amendment to this executive order,
EO 163-A providing that the tenure of the Chair as
well as the other Commissioners ought to be at
the pleasure of the President violates the provision
in the Constitution. It violates the security of tenure
guarantee. The need for these Constitutional
Commissions to be given independence in the
discharge of their functions.
• Members of HRET have security of tenure;
disloyalty to party not a valid ground for
expulsion of Camasura (Bondoc vs.
Pineda, 201 SCRA 792)
• Requisites for effective operation of
rotational scheme for Constitutional
Commissioners (Republic vs. Imperial, 96
Phil. 770; ’10BQ)
• Start and end of 7-year term of office of
CSC Commissioner who was appointed
on 06/11/93. Interval xxx must be counted
vs. her (Gaminde vs. COA,12/13/2000)
Bondoc v. Pineda (asked in the Bar) - We have
here the issue of whether or not a member of the
HRET (House of Representatives Electoral Tribunal)
may have security of tenure. Can they be
removed?
The SC ruled that they can be removed only for
grounds provided under the law.
What happened here was that Camasura, a
colleague of Pineda of the LDP party voted in the
election protest not in favor of Pineda, his
partymate, but in favor of Bondoc and because
of this Camasura was removed as a member of
the HRET.
The SC ruled that disloyalty to a party is not a valid
ground for the removal of a member of the HRET.
In other words he has security of tenure
guarantee that she can only be removed for
causes provided under the law.
Republic v. Imperial (Asked in the Bar) - The
so-called rotational scheme principle. This is
applicable to the Chair, the Heads and
Commissioners of Constitutional Commissions.
 2016 Public Officers & Corporation 4th yr Review
What is this rotational scheme all about? The first
Chairmen and Commissioners of the
Constitutional Commissions serve office for a term
as provided under the Constitution, 7-5-3.
Subsequent commissioners and chair shall have a
fixed term of 7 years, such that there will be a
regular interval of 2 years thereafter.
In ___, they have the same, they have a common
date as to the assumption of office. Meaning
upon the adoption of the 1987 Constitution that
would be February 2, 1987. That is the rotational
scheme applicable to Constitutional
Commissioners.
Gaminde v. COA (Asked in the Bar)- Thelma
Gaminde assumed office more than a year after
the end of the term of her predecessor. The
predecessor in office of Gaminde ended his term
on Feb. 2, 1992. But in the case of Gaminde, she
assumed office, got appointed to office as such
Commissioner more than a year after. This interval
between the 7 year term of Gaminde should still
end 7 years after Feb. 2, 1992. That is Feb. 2, 1999.
But in the case of Gaminde, she in fact continued
to discharge the functions of the office up to Feb.
2, 2000 because of the opinion given to her by the
office of the President, she should be considered
a de facto officer.
The expiry of the term of petitioner, in his capacity
as an ex officio member of the Sangguniang
Bayan of Nabua, Camarines Sur being the
elected President of the Liga ng mga Barangay,
coincides with the expiration of the term of office
of regular members (Hernandez vs. Lanzuela,
10/13/99). Under Sec. 494 LGC, ex officio
Sanggunian members shall serve as such only
during their term as presidents of the liga chapters
w/c in no case shall be beyond the term of the
office of the sanggunian concerned. Petitioner’s
position could not extend beyond term 1992-95.
Hernandez v. Lanzuela - Whenever an ex-officio
member of the Sanggunian is __ to hold office it
should only be for the duration of the term of
office of the Liga members. The issue in this case
what is the expiry of the term of an ex-officio
member. The case here of Hernandez in his
capacity as the head of the Liga ng mga
Barangay. The head of the Liga ng mga
Barangay is made an ex-officio member of the
Sanggunian. In the case of an ex-officio member,
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the term should coincide likewise with the term of
office of the Liga members. In other words, the
expiry date of the term of office of an ex-officio
member should be the same expiry date of the
term of office of the regular members.
Take note under Sec. 494 of the LGC, ex-officio
Sanggunian members shall serve as such only
during their term as the heads of the Liga
chapters, which in no case shall be beyond the
term of the office of the sanggunian concerned.
A COA Commissioner like respondent Villar who
serves for a period less than 7 years cannot be
appointed as chairman when such position
became vacant as a result of the expiration of the
7-year term of the predecessor. Such
appointment to a full term is not valid &
constitutional, as the appointee will be allowed to
serve more than 7 years under constitutional ban
in Sec. 1(2), Art. lX-D, Const. (Funa vs. COA Chair,
24 April 2012).
Note: “The Chairman & Commissioners shall
be appointed by the Pres. xxx for a term of 7
years without reappointment.”
Funa v. COA - The issue of the validity of the
appointment given by the President to Villar as
Chairman of the COA in the light of the expiration
of term of the Chair Carague.
May Villar who was already the Commissioner of
the COA still be appointed as Chairman of the
COA? The SC ruled that a COA Commisioner like
respondent Villar who, under the Constitution, has
a 7 year term cannot be appointed as Chair of
the COA because this would run counter, this
would violate what is provided under the
Constitution, Section 1 Article IX:
xxx
(2) The Chairman and Commissioners [on
Audit] shall be appointed by the President with
the consent of the Commission on
Appointments for a term of seven years without
reappointment.
Take note without re-appointment. In other words,
to allow his appointment as Chair of COA would
be to exceed the 7 year limit. Such appointment
to a full term as chair of COA is not valid or is
 2016 Public Officers & Corporation 4th yr Review
unconstitutional because in the case of
respondent Villar, he would be serving more than
7 years, in contravention of what is provided
under the Constitution.
What is this phrase “without reappointment” being
referred to?
The appointment here as prohibited under the
Constitution means a movement to one and the
same office. What is prohibited is movement to
the same office. It does not apply when an
appointment refers to a high position. For
example, an appointment from Commissioner to
Chairman is in fact a new appointment and not a
re-appointment that is prohibited under the
Constitution.
• Appointment of members in constitutional
commissions, after expiration of uneven
terms of office of the 1st set of
commissioners, shall be for a fixed term of
7 yrs; appointment for a lesser period is
void & unconstitutional.
• Appointing authority can’t shorten full term
of 7 yrs in case of expiration of term as this
will distort rotational system set in the
Constitution.
• Appointment to vacancy resulting from
death, resignation, disability or
impeachment shall only be for unexpired
portion of term of predecessor, but it
cannot be less than the unexpired portion.
• Members appointed for a full term &
served the entire period are barred from
reappointment to any position in the
Commission.
What are the rules for the members of
Constitutional Commissions?
The appointment of members of the
Constitutional Commissions after the expiration of
their terms of office shall be for a fixed term of 7
years. In other words, the President cannot issue
an appointment less than a full term of 7 years.
The appointing power, the President cannot
shorten the full term of 7 years in case of
expiration of a term because there will be a
distortion of the rotational scheme as prescribed
under the Constitution.
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In the event that the incumbent is not able to
complete his full term, either because of death,
resignation, disability or he is impeached from
office, the appointment can only be issued for the
unexpired portion of the term of office of the
predecessor. It cannot be less than the term. It
cannot be less than the unexpired term or portion
of the term of office.
A commissioner who resigns after serving for less
than 7 years is eligible for appointment to post of
Chair for unexpired portion of term of the
departing chairman (resulting from death,
resignation, disability or impeachment). Such
appointment is not covered by ban on
reappointment. Reappointment ( as barred under
Const.) means a movement to one & same office
(Comm. to Comm. or Chair to Chair). An
appointment to a different position or office
(Comm. to Chair) is a new appointment & not a
reappointment barred under the Constitution.
Any member of the Commission cannot be
appointed or designated in a temporary or acting
capacity. (Funa vs. Villar)
Members appointed for a full term and serve the
entire period are prohibited from being
reappointed to any position in the Commission
because this will go beyond what is provided, the
limit of 7 year term in the Constitution.
Another important principle: Any member of the
Commission cannot be appointed or designated
in a temporary or acting capacity. There can be
no issuance of a temporary appointment or
designation.
A law allowing elective officials in the ARMM to
remain in office in a holdover capacity until those
elected in the synchronized elections assume
office is unconstitutional. It would violate Sec. 8
Art. X of the Constitution w/c states that the term
of office of elective local officials, except
barangay officials, shall be 3 years & no such
official shall serve for more than 3 consecutive
terms. Congress cannot extend their term. RA
10153 authorizing the President to appoint OICs
for the office of the Regional Governor, Reg. VG &
members of the RLA until those elected in the
synchronized elections assume office is valid. The
 2016 Public Officers & Corporation 4th yr Review
basis is Sec. 16 Art. Vll w/c states that the
President shall appoint all other officers of the
government whom he may be authorized by law
to appoint (Datu Abas Kida vs. Senate, 18
October 2011).
Datu Abas Kida v. Senate - A law permitting
elective officials in the ARMM to remain in office in
a hold-over capacity until such time that those
elected in the elections assume office is
unconstitutional because the Constitution
especially Articlle 10, Section 8, provides for
specific term of office on elective local officials
with the exception of the barangay elective
officials.
Article X, Section 8. The term of office of elective
local officials, except barangay officials, which
shall be determined by law, shall be three years
and no such official shall serve for more than
three consecutive terms.x x x
Such a law allowing them to hold-over is
unconstitutional.
But take note a different scenario. What about a
law passed by Congress giving authority to the
President to appoint officers-in-charge (OICs) for
these positions in the ARMM, office of the
Regional Governor, office of the Regional Vice
Governor, Members of the Legislative Assembly. Is
this law valid until those elected in the election
shall be qualified to their positions, is this valid?
YES, because the basis would be under Article VII,
Section 16, conferring to the President the power
to appoint all other officers of government who
he may be authorized by law. That is the basis for
the enactment for such authority but NOT where
the President is given the power to authorize the
hold over of elective official. That would be
unconstitutional.
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MCQ: A law is passed fixing the term of office of
local elective officials, other than barangay
elective officials, to six years. Is it constitutional?
a) Yes, because Congress is authorized to do so.
b) Yes, because the terms of office of local
elective officials are fixed by law.
c) No, because the terms of office of local
elective officials, save for barangay officials, are
fixed by the Constitution to three-year term only. *
d) No, because only the term of office of
barangay officials can be changed by law.
Primarily Confidential Positions
Rule: Tenure of officials holding primarily
confidential positions ends upon loss of
confidence since their term lasts only as long as
confidence endures; cessation is not a removal
but expiration of term.
• City Legal Officer (Cadiente vs.
Santos, 142 SCRA 280)
• Prov’l Attorney (Grino vs. CSC,
2/26/91)
• Sec. 481 LGC
• Permanent Representative to UN (De
Perio Santos vs. Macaraig, 10 April
1992)
Primarily Confidential Position
The rule here is the tenure of officials whom the
primarily confidential position ends upon loss of
confidence. The basis for the appointment is
confidence. There is this close intimacy. There is
no removal of the incumbent but simply an
expiration of term if he is separated(?) because of
loss of confidence. The term of office of those
holding primarily confidential positions lasts only
as long as confidence in the officer endures. If this
confidence ceases to exist, the appointing power
has the right to end such term and this is not
removal or violation of the security of tenure
guarantee but rather simply an expiration of term.
The positions of City Legal Officer, the case of
Cadiente v. Santos, as well as Provincial Attorney
 2016 Public Officers & Corporation 4th yr Review
in Grino v. CSC, are considered primarily
confidential.
There is already an express provision under the
LGC Section 481 provides that the position of
legal officer in the province, the city, is primarily
confidential. He can be replaced and that is
simply an expiration of term.
Eligibility to Public Office
Qualifications generally required of public officers
* Citizenship, residence, age, education
and civil service qualifications
• Qualification Standards: expresses
minimum requirements for a
class of positions xxx
• Religious qualifications are
prohibited (Sec. 5, Art. lll,
Constitution)
• Ruling in Pamil vs. Teleron on basis
of Sec. 2175 of old Admin. Code
(20 Nov. 1978) has been
superseded by ’87 Constitution.
De Perio Santos v. Macaraig - The SC ruled that
despite the label given to the position Permanent
Representative to United Nations, this is not a
career position. In other words, if the appointment
is faced with political considerations, the
appointee can be separated without violating
the constitutional guarantee of security of tenure.
So Permanent Representative to the UN is
classified as primarily confidential position.
Qualifications Generally Required of Public
Officers
Citizenship, Residence, Age, Education and Civil
Service Qualifications
Under the Constitution, the President, VP, they
must be natural-born citizens. They have a
residency requirement of at least 10 years.
Senators- residency requirement of 2 years.
Congressman – 1 year. Senator – 35,
Congressman – 25 (Age requirement)
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What about the elective officials as provided
under the LGC?
Age requirement of 23 as applicable to the
governors, vice governors, members of the
Sanggunian Panlalawigan, mayors, vice mayors,
members of the Sanggunian of highly urbanized
cities. For component cities, municipalities, the
age requirement for the positions of mayor, vice
mayor will be under Section 39 of the LGC which
is 21. Members of the Sanggunian of this
component municipalities, age requirement of 18
years.
Article III, Section 5, no religious test shall be
required for the exercise of civil or political right.
Religious qualifications are prohibited. The ruling
of the Court in Pamil v. Teleron, the priest in Bohol
was disqualified in the basis of the old provision of
the Administrative Code. The SC ruled (this has
already been superseded by the present
Constitution so the Constitution itself provides that
no religious test shall be required .
Property qualifications may not be imposed for
the exercise of right to run for public office. Law
requiring candidates for public office to post
surety bond of P20T held unconstitutional as it
violates principle of social justice (Maquera vs.
Borra, 07 Sept. 1965).
Loss of any of the qualifications during
incumbency is a ground for termination (Labo vs
COMELEC, 176 SCRA 1). Labo was granted
Australian citizenship in 1976 & took an oath of
allegiance as such. He was not a Ph. citizen on
election day (Jan.18/88)
Maquera v. Borra - The Court ruled that there can
be no imposition of property qualifications for the
exercise of the right to run for elective office. If a
law is passed requiring the candidate for public
office to file cash bond, this is unconstitutional
because this violates the concept of social
justice. There should be equal opportunities for all.
Labo v. COMELEC The loss of any of the
qualifications during the incumbency of the
public officer is a ground for termination. Labo is
the famous faith healer in Baguio. He got married
to an Australian patient and he was granted
 2016 Public Officers & Corporation 4th yr Review
Australian citizenship. He ran and won for mayor
in Baguio. The SC disqualified him because he
was not Filipino citizenship on the election period.
Disqualifications for local elective position [(Sec.
40, RA 7160 (BQ)] [s r c d f p i]
• Those sentenced by final judgment
for an offense involving moral
turpitude or for an offense
punishable by 1 year or more of
imprisonment, w/in 2 years after
serving sentence
• Those removed from office as a
result of an administrative case
• Those convicted by final judgment
for violating oath of allegiance
• Those with dual citizenship
• Fugitives from justice …
• Permanent residents in a foreign
country
• The insane or feeble-minded
Now very important - Section 40 of the LGC – the
Disqualifications for the Local Elective Positions,
SRCDFPI:
• Those sentenced by final judgment for an
offense involving moral turpitude or for an
offense punishable by 1 year or more of
imprisonment, w/in 2 years after serving
sentence
• Those removed from office as a result of
an administrative case
• Those convicted by final judgment for
violating oath of allegiance
• Those with dual citizenship
• Fugitives from justice …
• Permanent residents in a foreign country
• The insane or feeble-minded
Punong Barangay convicted of arbitrary
detention and sentenced to suffer imprisonment
for 4 mos. & 1 day to 2 years & 4 mos. but has
not served his sentence because of the grant of
probation is not disqualified to seek ’02 barangay
elective office. During the period of probation, the
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probationer is not disqualified because the
accessory penalty of suspension from public
office is put on hold for the duration of the
probation (Moreno vs. Comelec, 498 SCRA 49).
Moreno v. COMELEC - Petitioner Moreno,
barangay captain, was convicted of arbitrary
detention. He was sentenced to suffer 4 months
and 1 day to 2 years and 4 months but he did not
serve his sentence because he was given
probation. Is he disqualified to seek elective
barangay position? The SC ruled that considering
that he never serve the sentence, Moreno is not
disqualified because the accessory penalty of
suspension from office is held in abeyance for the
duration of the probation. So he was allowed to
run for the elective position.
Conviction for an offense involving moral
turpitude (Anti-Fencing Law) & thus within the
disqualification in Sec. 40 (a) subsists as he
applied for probation 4 years after conviction &
only after appealing his conviction. His
perfection of an appeal is relinquishment of
alternative remedy of availing of Probation Law,
the purpose of w/c is to prevent speculation or
opportunism on part of accused. Dela Torre could
not be eligible for probation (Dela Torre vs.
Comelec, 258 SCRA 483).
Dela Torre v. COMELEC - The situation is reversed.
Here, Dela Torre got convicted for a crime
involving moral turpitude and he appealed the
conviction because only after 4 years that he filed
to avail the probation. The SC ruled that his
perfection of an appeal is a relinquishment of the
alternative remedy of availing the benefits of the
probation law and the reason here is to prevent
opportunism or speculation on the part of the
accused. Dela Torre is not eligible.
His reelection notwithstanding, a local elective
official who is removed before the expiration of
his term is disqualified from being a candidate for
local elective position in ‘95 elections (Mayor
Reyes of Pungabong, Or. Mindoro vs. Comelec,
254 SCRA 514).
Where the decision vs. him has not become final
by reason of filing an MR, respondent local
elective official is not disqualified to run in May
 2016 Public Officers & Corporation 4th yr Review
‘92 elections. The filing of Sulong’s motion
prevented the SP decision from becoming final
(Lingating vs. Mayor Sulong of Lapuyan, ZS, 391
SCRA 629).
Mayor Reyes v. COMELEC - What is provided
under Section 14 where the elective public official
is removed. The removal should be on the basis of
final judgment. A local elective official despite his
reelection which removed before the expiration
of his term is disqualified from being a candidate
of the local elective position. If he was already
removed before the expiration of his term, the
disqualification under Section 40 applies.
Not so where there is still a pending for motion for
reconsideration. In other words, the decision has
not attained finality because of the pendency of
the MR. So in the case of Lingating v. Mayor
Sulong. Sulong got convicted in a case filed
against him. He was removed from office but he
timely filed an appeal. There was a motion filed
to reconsider the decision and it was not acted
upon. In other words, the decision removing him
from office has never attained finality. Can he still
run for an elective position? YES, the filing of
Sulong’s motion prevented the decision of the
Sanggunian from becoming final.
While Sec. 40(a) of LGC allows a prior convict to
run for local elective office after the lapse of 2 yrs
from the time he serves sentence, the provision
should not be deemed to cover cases wherein
the law imposes a penalty, either as principal or
accessory, which has the effect of disqualifying
the convict to run for elective office. Thus,
Comelec did not commit grave abuse when it
motu proprio cancelled petitioner’s CoC
excluding him in 2013 election based on his
conviction by final judgment of rape/lascivious
acts with principal penalties of reclusion
perpetua/temporal (Romeo Jalosjos vs.
Comelec, 6/18/2013).
Jalosjos v. COMELEC - Although under Section 40
of the LGC, it allows a prior convict to run for
elective local office after the lapse of 2 years from
serving the sentence. Nonetheless, they
thought(?) that this provision is not applicable
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where the law itself imposes a penalty of
disqualification whether as principal or accessory,
where it has the effect of disqualifying the convict
from running for elective position. In the case of
Jalosjos, he was convicted by final judgment of
rape and to suffer the penalty of reclusion
perpetua. And the crime of acts of lasciviousness,
reclusion temporal. This penalties have
accessory penalty of perpetual disqualification to
hold office. The SC sustained the authority of the
COMELEC in cancelling motu propio the COC of
Jalosjos excluding him in the 2013 election
because of his conviction by final judgment
imposing the accessory penalty of disqualification
to hold public office.
The accessory penalty of perpetual special
disqualification deprives the convict of right to
vote or to be elected to or hold public office
perpetually (Aratea v. Comelec, 683 SCRA 105;
Jalosjos,Jr. v. Comelec, 683 SCRA 1).
One who is previously convicted of a crime
punishable by reclusion perpetua or temporal
continues to suffer the accessory penalty of
perpetual absolute disqualification even though
pardoned as to principal penalty, unless
accessory penalty is expressly remitted in the
pardon. Here, accessory penalty was not
expressly remitted in GMA’s Order of
Commutation or by any subsequent pardon,
hence, his disqualification to run is deemed to
subsist (Romeo Jalosjos v. Comelec, 6/18/2013).
Aratea v. COMELEC as well as Jalosjos, Jr. v.
COMELEC
The SC ruled that the accessory penalty of
perpetual special disqualification deprives the
convict of the right to vote or to be elected or
even to hold office perpetually. So this is a
perpetual disqualification.
In the same case of Jalosjos v. COMELEC, one
who is previously convicted of an offense
punishable by reclusion perpetua or temporal
continues to suffer the accessory penalty of
perpetual absolute disqualification even it has
been pardoned as to the principal penalty unless
the pardon includes the accessory penalty. But in
the case of Jalosjos, he was pardoned only as to
 2016 Public Officers & Corporation 4th yr Review
the principal penalty not the accessory penalty.
Therefore he is disqualified to run for elective
office. The accessory penalty was not expressly
remitted in the order issued by President Arroyo,
Order of Commutation. He is deemed
disqualified to run for public office.
DUAL CITIZENSHIP
• “Dual citizenship” refers to “dual
allegiance”; dual citizenship is not a
disqualification. For candidates w/dual
citizenship, it should suffice if upon filing of
their certificate of candidacy, they elect
Philippine citizenship to terminate their
status as persons with dual citizenship. By
electing Phil. citizenship, he at the same
time forswears allegiance to the other
country (Mercado vs. Manzano, 26 May
1999)(note: ruling now modified by RA
9225)
Mercado v. Manzano - Dual citizenship actually
refers to dual allegiance.
What is prohibited is not dual citizenship but rather
dual allegiance. For candidates with dual
citizenship, it is sufficient that upon filing of the
certificate of candidacy, they elect Philippine
citizenship, has terminated their status as persons
with dual citizenship. By electing Philippine
citizenship, Manzano forswears allegiance to the
other foreign country. This ruling has been
modified by RA 9225.
RA 9225 - Citizenship Retention and Reacquisition
Act or Dual Citizenship Act
Those who retain or re-acquire Phil. citizenship
under this Act and seek elective public office
shall meet the qualifications for holding such
public office as required by the Constitution and
existing laws, and at the time of the filing of the
certificate of candidacy, make a personal &
sworn renunciation of any and all foreign
citizenship before public officer authorized to
administer an oath [Sec. 5 (2)]
Important provision is Section 5: Those who retain
or re-acquire Phil. citizenship under this Act and
seek elective public office shall meet the
qualifications for holding such public office as
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required by the Constitution and existing laws,
and at the time of the filing of the certificate of
candidacy, make a personal & sworn
renunciation of any and all foreign citizenship
before public officer authorized to administer an
oath.
Take note: Personal and Sworn Renunciation
before duly authorized public officer.
Petitioner’s taking an oath of allegiance before
the Vice Consul in California is not enough to
allow him to run for public office. There is no
evidence that he made a personal & sworn
renunciation of foreign citizenship before an
authorized officer to administer oath. For
renunciation to be valid, it must be in an affidavit
duly executed xxxx. Affiant must state in clear
and unequivocal terms that he is renouncing all
foreign citizenship for it to be effective. Petitioner
is disqualified. (Eusebio Lopez vs. Comelec, 23
July 2008)
Eusebio Lopez v. COMELEC - Lopez took an oath
of allegiance before the Vice Consul of the
Philippine Consulate in California. Is this official to
allow him to run for public office? The Court ruled
that this is not sufficient to allow him to run for
public office because of the requirement that he
should state in clear and unequivocal terms that
he is renouncing all foreign citizenship. Here, there
was no compliance with this requirement. For it to
be valid, it must be in an affidavit stating clearly
that he is renouncing all foreign citizenship. This
was not complied with by Eusebio Lopez. So
simply the taking of an oath of allegiance is not
sufficient.
Failure to renounce foreign citizenship in
accordance w/ Sec. 5 (2) of RA 9225 renders a
dual citizen ineligible to run for & hold elective
public office. Unless Condon executes a sworn
renunciation of her Australian citizenship, she is
ineligible to hold office as Vice Mayor of Caba, La
Union. That she won in the 2010 elections cannot
cure the defect of her candidacy, despite her
taking an oath of allegiance to the Phil. state in
Dec. 2005 and her filing of an unsworn
 2016 Public Officers & Corporation 4th yr Review
declaration of renunciation of Australian
citizenship before the Dep’t of Immigration &
Indigenous Affairs in Canberra in Sept. 2006
(Teodora Sobejana- Condon vs. Comelec,
9/7/12).
The same ruling in the case of Teodora Sobejana-
Condon vs. Comelec. She filed and sworn
declaration of renunciation. This is not sufficient.
Failure to renounce foreign citizenship in
accordance with what is prescribed under
Section 5 of RA 9225 renders the person not
qualified, ineligible to run for elective office.
MCQ: The remedy for a person who is disqualified
to run for public office by reason of dual
citizenship under RA 9225 is to:
a) file his certificate of candidacy.
b) resign the public position he is holding in the
foreign country.
c) expressly renounce the foreign citizenship.*
d) surrender greencard to the issuing foreign
country one year immediately preceding the
election.
Candidate Merito Miguel who is a green card
holder must waive his status as a permanent
resident or immigrant of a foreign country. His act
of filing a certificate of candidacy for elective
office of Mayor of Bolinao, Pangasinan did not of
itself constitute a waiver of his status as a
permanent resident or immigrant. The waiver of
his green card should be manifested by some act
or acts independent of and done prior to filing his
candidacy for elective office. (Caasi vs. CA, 191
SCRA 229).
Caasi v. CA – Candidate Merito Miguel who is a
green card holder must waive his status as a
permanent resident or immigrant of a foreign
country for him to be qualified to run. So the act
of filing a COC for elective position does not
constitute a waiver of a status of a permanent
resident. The waiver of the greencard status
should be made manifested by some of acts
independent of and done prior to the filing of the
candidacy for elective office.
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Distinctions of Designation and Appointment
Designation distinguished from appointment
Case:
Designation does not entail payment of
additional benefits or grant upon the person
designated the right to claim the salary attached
to the position. The legal basis to claim salary is a
duly issued and approved appointment to the
position and not mere designation (National
Amnesty Commission vs. COA, 437 SCRA 657).
To designate a person is simply to impose
additional duties. It presupposes that the
individual is already in the service to a valid
appointment and he is given additional duties.
In the case of appointment, there is a document
evincing such appointment. An exercise of the
discretion on the part of the appointing power
referring to the individual, the authority discharge
of the functions of the office.
National Amnesty Commission vs. COA –
Designation does not entail the payment of
additional benefits nor grant the designate(?)
authority to claim the salary attached to the
position. The legal basis for claiming the salary or
any emolument attached to the position is a duly
issued and approved appointment. In the case of
__ there is no appointment.
Where the person is merely designated and not
appointed, the implication is that he holds the
office only in a temporary capacity and may be
replaced at will by the appointing authority.
Where the law says that the officer is to be
appointed by the President, designation by the
department secretary does not result in a
permanent appointment (Binamira vs. Garrucho,
188 SCRA 154).
Binamira v. Garrucho – Binamira was designated
as Head of the Philippine Tourism Authority. He
was replaced, he complained violation of security
of tenure. The SC ruled that whenever a person is
 2016 Public Officers & Corporation 4th yr Review
designated, it does not confer security of tenure.
It is not even an appointment. In a designation,
the implication is that he holds that position only in
a temporary capacity. So he does not have any
vested in that office and he can be replaced
anytime at the will of the appointing power. In this
case of Binamira v. Garrucho, the one who issued
the designation was not given the appointing
power, it was the Secretary, so it does not result in
any way in a permanent appointment.
Appointment
Kinds of appointment: permanent and
temporary
Permanent appointment is issued only to a person
who meets all the requirements for the position to
which he is being appointed, including the
appropriate eligibility prescribed.
Acceptance of appointment not essential to its
validity but necessary to the full possession of the
office.
There are 2 kinds of appointment: Permanent and
Temporary
A permanent appointment is issued to person
who meets the requisites required for the position
to which he is being appointed including the
appropriate eligibility required under the
qualification standard for the position.
Appointment is already valid. Once it is issued by
the appointing authority, the question now is
whether there should be acceptance of the
appointment in order for the appointee to
have full investiture to the office. There should be
acceptance of the appointment for him to have
full enjoyment and possession of the office.
One who holds a temporary appointment has no
fixed tenure of office; his employment can be
terminated at the pleasure of the appointing
power, there being no need to show that the
termination is for cause. The mere fact that
petitioner’s position as POEA Administrator
belongs to the career service does not
automatically confer security of tenure on him if
he does not possess the required qualifications
43 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
(Achacoso vs. Macaraig, 195 SCRA 237).
Achacoso v. Macaraig - Achacoso getting
appointed as Head of the POEA, Administrator of
the POEA. He claims that his position belongs to
the career position. Does it follow that one who is
appointed to a career position holds already a
permanent appointment, thus, conferring a
security of tenure? In the case of Achacoso, he
never passed, he never qualified in an
appropriate examination. So it cannot be said,
the SC ruled that his appointment is temporary
because the fact that the position belongs to the
career service does not automatically confer
security of tenure to the appointee if he is
non-eligible. He has not participated in any of the
qualifying examination. One who holds a
temporary appointment has no fixed tenure of
office. His employment can be terminated at the
pleasure of the President. There is no need even
to show that the separation was for a cause.
• Acceptance of a temporary appointment
without intention to abandon permanent
position does not divest employee of his
security of tenure (Palmera vs. CSC, 235
SCRA 87).
• Acceptance of a temporary appointment
on his own volition & in exchange of
permanent appointment divests officer of
security of tenure (Romualdez vs. CSC,
197 SCRA 168).
• Resident physician position is not
permanent (Felix vs. Buenaseda, 240
SCRA 139). His appointment as Medical
Specialist in NCMH was for a definite &
renewable period w/c, when not
renewed, did not involve dismissal but an
expiration of his term.
We have mentioned this earlier, the case of
Palmera v. CSC. There were administrative
charges filed against him. He was placed under
preventive suspension. He was practically
compelled to accept the temporary
appointment in lieu of the filing of the separate
charges. The acceptance of a temporary
appointment without any intention to abandon
his permanent appointment will not deprive him
of his security of tenure. This is covered under the
security of tenure guarantee.
 2016 Public Officers & Corporation 4th yr Review
Not so in the case of Romualdez v. CSC
What distinguishes this Romualdez case from
Palmera is that here, Romualdez, earlier (?)
holding a permanent appointment accepted a
higher position but in a temporary capacity. So in
exchange of his permanent appointment, he
cannot later on complain that he was divested of
his SOT guarantee because there was
acceptance of such temporary appointment on
his own volition.
Felix v. Buenaseda - The SC ruled that the position
of resident physician in a government hospital is
not permanent.
Petitioner’s appointment as NBI Director lll was
temporary as he did not have the required CES
eligibility. An appointee w/o such eligibility
cannot hold the position in a permanent
capacity. His temporary appointment is
coterminous or co-existent w/ the tenure of the
appointing authority or at the latter’s pleasure. He
can be removed even w/o cause & at a
moment’s notice. His replacement was not
removal but an expiration of term & no prior
notice, due hearing or cause were necessary to
effect the same (Samuel Ong vs. Office of the
President, 30 January 2012).
Samuel Ong v. Office of the President - Petitioner
___ the NBI for director but he never acquired CES
Eligibility. The question now is the nature of his
appointment? Is he permanent or temporary?
The SC ruled that the appointment of Samuel Ong
as the Director of NBI was temporary because he
did not acquire any CES eligibility. Therefore,
without such CES eligibility, he holds office only in
a temporary capacity. Meaning, temporary
capacity, therefore, co-terminus or co-existent, or
he serves at the pleasure of the appointing
authority. He can be removed even without
cause by the appointing power and this case, this
cannot be a violation, this is not really a removal
but simply an expiration of term. There is no need
for prior notice, due hearing, cause were
necessary to effect the same.
The ____ for the career officer belonging to the
third level to have CES. In subsequent rulings of
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the court, the court ruled that mere possession of
CES eligibility is not sufficient to confer SOT
guarantee.
Cases on Power to Appoint
• The power to appoint involves the
exercise of discretion. The CSC has
no power to substitute its own
judgment for that of the City Mayor
(Patagoc vs. CSC & Despalo, 14 May
1990).
• Petitioner who is next in rank may
claim preferential consideration, but
he has no vested right to the office
to which he seeks appointment. His
appointment as Supervising Engr. by
the DPWH RD may be set aside by
the Secretary and his appointment
declared vacated (Umoso vs. CSC &
Caronon, 234 SCRA 819).
Patagoc vs. CSC and Despalo - The nature of the
power to appoint, this is discretionary. The power
to appoint involves an exercise of discretion. The
Commission has no authority to compel the
appointment of some other person even if it finds
that the appointee possesses eligibility as that of
the other candidate. The Commission has no
power to substitute its own judgment and for
that of the City Mayor. The case of Patagoc
pertaining to the position of City Engineer of
Zamboanga. The next in line, Despalo, was not
appointed. The mayor appointed Patagoc, an
outsider. The SC ruled that this involves an exercise
of discretion. So long as the appointee possesses
minimum qualifications for the office even if the
other contender has better qualifications
because the power to appoint involves discretion
on the part of the appointing authority.
What does the “next in rank rule” means?
It simply means that he should be given
preferential consideration but there is no
obligation on the part of the appointing power to
issue appointment to the next in rank. The case of
Umoso v. CSC
• An appointment to a position in the civil
 2016 Public Officers & Corporation 4th yr Review
service is required to be submitted to CSC
for approval. Without the favorable
certification or approval of the CSC, no
title to the office can yet be deemed to be
permanently vested in favor of the
appointee, and the appointment can still
be recalled or withdrawn by the
appointing authority. The new OMA
Director can revoke petitioner’s
incomplete appointment as Dev. Mgt.
Officer. Tomali may be considered a de
facto officer (Tomali vs. CSC, 238 SCRA
527).
Tomali v. CSC - Unfortunately, her appointment
was never submitted. It was issued by the
appointing power but it was never submitted to
the CSC for attestation. An appointment to a
position in the CSC is required to be submitted to
the CSC for approval and therefore, without the
approval of the CSC, then there can be no title to
the office. It can be said that the appointee
already possesses the legal right to the office and
so Tomali was replaced when a new executive
director in the OMA took over.
The SC ruled that considering that there was no
approval by the Commission, the appointing
power can still exercise his authority. The
appointment can still be recalled or withdrawn by
the appointing authority.
July 12, 2016
• Petitioner’s appointment as NBI Director lll
was temporary as he did not have the
required CES eligibility. An appointee w/o
such eligibility cannot hold the position in
a permanent capacity. His temporary
appointment is coterminous or co-existent
w/ the tenure of the appointing authority
or at the latter’s pleasure. He can be
removed even w/o cause & at a
moment’s notice. His replacement was
not removal but an expiration of term & no
prior notice, due hearing or cause were
necessary to effect the same (Samuel
Ong vs. Office of the President, 30 January
2012).
In the case of Samuel Ong vs. Office of the
President, 30 January 2012, it stated that an
45 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
appointment given as temporary confers no
security of tenure to the officer holding a third
level position. So an appointee without such
career executive service eligibility cannot be said
to have permanent appointment in those position
in a temporary capacity. And therefore, such
appointment is coterminous with the tenure of the
appointing power or he serves at the pleasure of
the latter. A good illustration would be the
situation of former NBI Director Mendez as he was
replaced by Davao City Lawyer because he
serves at the pleasure of appointing power or
considering that he did not have CES eligibility
required for the position it could not be said that
his appointment was permanent. So he can be
separated from the service even without cause.
So if the appointing power’s term ended on June
30, it follows that one appointed to a 3rd level
position without such requisite CES eligibility does
not have a permanent appointment. So he may
be removed and there’s no need for such cause
for a reason for such determination.
Cases on Power to Appoint
• The power to appoint involves the
exercise of discretion. The CSC has no
power to substitute its own judgment for
that of the City Mayor (Patagoc vs. CSC &
Despalo, 14 May 1990).
• Petitioner who is next in rank may claim
preferential consideration, but he has no
vested right to the office to which he
seeks appointment. His appointment as
Supervising Engr. by the DPWH RD may be
set aside by the Secretary and his
appointment declared vacated (Umoso
vs. CSC & Caronon, 234 SCRA 819).
The nature of power to appoint is said to be
discretionary. So appointment is the selection by
the competent authority of the person to
discharge the duties of the office. So this power
involves an utmost exercise of discretion, sound
judgment and it cannot be interfered by any
other entity for example the CSC.
In the case of Patagoc vs. CSC & Despalo, 14 May
1990, the matter of the appointment to the
position of City Engineer of Zamboanga City by
Mayor Agan at that time of an outsider, not even
the next in rank Engr. Despalo. Upon protest of
 2016 Public Officers & Corporation 4th yr Review
Despalo to the CSC, the CSC substituted its own
judgment when it issued the appointment to
Patagoc. Can this be done by the Commission?
Really the CSC has no authority. It does not have
the power to substitute its own judgment for the
appointive power which in this case is the City
Mayor because appointment is an act of
discretion on the part of the appointing authority.
The nature of this rule next in rank is simply that this
officer ought to be given preference but not
really an obligation on the part of the appointing
power to so issue the appointment to his officer
classified as next in rank although the latter may
claim preferential consideration but nonetheless
even the next in rank does not even have a
vested right in the office of which he seeks the
appointment.
In this case of Umoso vs. CSC & Caronon, 234
SCRA 819, you have here petitioner Umoso being
appointed as Supervising Engineer by the
Regional Director of the Public Works and some
other guy filed a protest arguing that he is better
qualifications than the next in rank. The Secretary
of Public Works set aside the appointment issued
by the Director to Umoso and issued an
appointment to this other guy. So this is actually a
matter of discretion on the part of the Head. So
the Sec. of Public Works has the authority to set
aside the appointment so issued by the Regional
Director and he can declare such position
vacated and issue the appointment.
• An appointment to a position in the civil
service is required to be submitted to CSC
for approval. Without the favorable
certification or approval of the CSC, no
title to the office can yet be deemed to
be permanently vested in favor of the
appointee, and the appointment can still
be recalled or withdrawn by the
appointing authority. The new OMA
Director can revoke petitioner’s
incomplete appointment as Dev. Mgt.
Officer. Tomali may be considered a de
facto officer (Tomali vs. CSC, 238 SCRA
527).
There’s a need for such an appointment to a
position in the CS to be submitted to the CSC for
46 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
the appropriate review and action. So the
authority or power of the Commission is simply to
attest or not to attest or to approve or not to
approve. It doesn’t have the authority to direct
the appointment of some other person because
this is a function of the appointing power. So if
there’s no action by the Commission, the
appointment may still be withdrawn and a new
one be issued.
So in this case of Tomali vs. CSC, 238 SCRA 527,
Tomali was issued an appointment by the then
OMA Director but her appointment was not
submitted to the Commission. Thereafter, a new
OMA Director assumed office. This new OMA
Director set aside and revoked the appointment
issued to Tomali and issued another appointment
in favor of another person. Here, the SC ruled that
this is within the authority of the appointing power
to revoke the incomplete appointment – an
appointment that was never submitted to the
Commission. But considering that the petitioner
occupied the office in good faith and she
discharged the functions of the Commission, she
should be considered a de facto officer during
her tenure prior to the recall of the appointment.
• The power of CSC is to approve or
disapprove an appointment and not the
power to make the appointment itself
(Orbos vs. CSC & Madarang, 189 SCRA
459)
• Even an appointment initially approved
by CSC may be subsequently recalled
when found to be invalid. RA 6850 (a law
granting CS eligibility to employees
efficiently serving for at least 7 yrs.) does
not cure a void appointment for being
based on petitioner’s false representation
of eligibility. CSC still has to evaluate
whether he is qualified under RA 6850
(Maniebo vs. CA, 627 SCRA 571).
In the case of Orbos vs. CSC & Madarang, 189
SCRA 459, again another illustration of the sole
authority of the head of office to make such
selection. In the course of the organization
effected in the DOTC then headed by Sec.
Orbos, appointments to DOTC Engineer positions
were issued and these appointments were
questioned by Engr. Madarang. Later on, Engr.
Madarang brought the action before the CSC
 2016 Public Officers & Corporation 4th yr Review
and just like what we saw in the Zamboanga City
case, the CSC directed the issuance of the
appointment to the protestor. The Court ruled
that the power of the Commission is simply to
approve or disapprove. And what basis may
there be to disapprove appointment? If the
appointee does not possess the minimum
qualifications for the position. Here the
Commission directed the appointment to
Madarang. It was not the choice of the Secretary.
And so the Court ruled that it is not within the
power of the Commission to direct such
appointment.
In Maniebo vs. CA, 627 SCRA 571, even if an
appointment initially approved by the
Commission but later on it finds that there was
irregularity for example the appointee made false
representations as to his eligibility. He cannot
argue that under this law RA 6850 has already
granted CS eligibility because he has served 7
years in the service. This cannot be invoked by
Maniebo because his appointment was on the
basis of misrepresentation about his eligibility. So it
will not prevent the Commission from recalling an
appointment earlier issued. The CSC has the duty
under the Constitution as well as under the CS
laws and to evaluate whether the employee or
officer is qualified or possesses the requisite
qualification.
Nepotism rule
• Sec. 59, EO 292: prohibition within 3rd
degree of consanguinity or affinity
• Sec. 67, EO 292: penalty of fine of not
more than P1,000 or not more than 6 years
imprisonment or both
• Sec. 79, RA 7160: prohibition within 4th
degree of consanguinity or affinity
• A promotional appointment violative of
nepotism rule is null and void (Debulgado
vs. CSC, 237 SCRA 184)
• Exceptions to the rule
What is this nepotism rule? Nepotism refers to the
appointment of a relative within the 3rd degree of
consanguinity or affinity applying the CS Law and
the Rev. Admin. Code (Sec. 59, EO 292).
Take note we must make such distinctions
appointments to CS position in the LGU and
47 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
appointments to CS positions in other agencies of
the gov’t for example the national agencies. So
what is the distinction? The distinction here is that
the prohibition on nepotism extends up to the 4th
degree of affinity or consanguinity for
appointments in positions of key personnel in the
local governments. Whereas, the prohibition
extends only up to 3rd degree by affinity or
consanguinity in other offices. For example, in
national agencies of government. So in the latter
case, what applies would be the Rev. Admin.
Code (EO 292) or the CS Law (PD 827). Whereas
for appointments in LGUs, what ought to apply
would be the applicable provisions on nepotism
under the LGC (RA 7160). You know violations of
this rule is not administrative innature but also calls
for a criminal action. Thus, a penalty of fine of not
more than P1,000 or not more than 6 years
imprisonment or both.
Take note that this nepotism rule applies not only
to original appointments but also to promotional
appointments. In the case of Debulgado vs. CSC,
237 SCRA 184, you have here the mayor
appointing his own wife as head of the General
Services. In fairness to the wife, she was really
qualified. So the nepotism rule extends to matters
of promotion.
So what are the exceptions to the nepotism rule?
1. Nepotism rule does not apply to positions
classified as confidential in nature. So, the
appointing power may issue the
appointment to a relative for a position
that is classified as confidential in nature.
Among these is the executive assistant or
security officer.
2. Positions in the Armed Forces of the
Philippines;
3. Physicians; and
4. Teachers
• Although what was extended by
petitioner Governor to Benjamin, who had
been holding a promotional appointment
as Civil Security Officer, was merely a
designation – and not an appointment,
the prohibition vs. nepotism would include
designation, because what cannot be
done directly cannot be done indirectly
(Laurel vs. CSC, 203 SCRA 195).
• Purpose of the rule vs. nepotism: take out
 2016 Public Officers & Corporation 4th yr Review
the discretion of the appointing or
recommending authority.
In the case of Laurel vs. CSC, 203 SCRA 195, you
have here the then Governor of Batangas Jose
Laurel issuing not an appointment but a
designation to his brother Benjamin as the
Provincial Administrator. Take note, this case was
decided prior to the present LGC. Under the
present LGC, the positions of city or provincial
administrator as well city or provincial legal
officer, these are already classified as confidential
positions. Now the SC ruled that this nepotism rule
applies to designations because there would be
an indirect circumvention of what is prohibited
under the law if this would be allowed. Because
what cannot be done directly ought not to be
done indirectly.
Hence, the purpose of this nepotism rule is to
simply take out the discretion of the appointing or
recommending authority. This only applies to an
appointing OR recommending authority.
MCQ: Aboy, City Engineer of Tagum City,
recommends the appointment of his first cousin
Jose as Cashier in his office. Does Aboy have
such authority?
a) No, because Aboy is not the
appointing authority.
b) Yes, because Jose is not a relative
within the third degree.
c) Yes, because Aboy can choose
his staff.
d) No, because Jose is a relative
within the fourth degree.*
A first cousin, may he be appointed to a position
in the national agency? YES. So an appointment
may be issued to him in the national agency, but
not the LGU.
Cases
• Where CSC disapproves the appointment,
appointee need not be previously heard
since the action does not involve
imposition of an administrative
disciplinary measure (Debulgado vs. CSC,
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237 SCRA 186).
• Passage of CS exam does not transform
temporary appointment to permanent.
What would have been required is a new
appointment, since a permanent
appointment is not a continuation of a
temporary appointment but a new one
(Prov. of Camarines vs. CA, 246 SCRA
283).
Again, in the case of Debulgado vs. CSC, 237
SCRA 186, one other argument raised here by the
mayor was that there was denial of due process
because he was not heard. The Commission
simply disapproved the appointment without
giving notice to the appointing power. Is there a
need for prior notice and hearing in case of
rejection of his appointment? The SC ruled that
since this role of the CSC does not involve
disciplinary action, there is no more need for
compliance with the requirement of prior notice
and hearing. So where the CSC disapproves the
appointment, the appointee need not be heard
by the Commission nor should there be notice
given to the appointing power because the
action taken by the Commission does not in any
way involve disciplinary proceedings.
In the Prov. of Camarines vs. CA, 246 SCRA 283,
you have here an asst. provincial warden
claiming that he got appointed to this position in
a temporary capacity because he did not have
the requisite eligibility. Of course we know the rule,
in the absence of eligible, a non-eligible may be
appointed even in the position of classified
service but of course such appointment is only
temporary. So here, the fact that this asst.
provincial warden later on passed the
examination, this does not automatically
transform the nature of his appointment from
temporary to permanent because there is a need
for a new issuance of the appointment.
Permanent appointment is not a continuation of
an earlier issued temporary appointment. So this
again would require the exercise of discretion on
the part of the appointing authority. The passage
of CS examination will not convert the temporary
appointment into a permanent one because this
again calls for the examination or the deliberation
of the appropriate body as to the qualifications
and the appropriate eligibility for the position.
 2016 Public Officers & Corporation 4th yr Review
• Quirog had the right to appeal the CSC
ruling invalidating her appointment as
Provincial Agriculture Department Head.
Relampagos, who had issued the
appointment, had lost legal personality to
contest the disapproval since his term as
Governor had expired. Constitutional
prohibition on midnight appointments
applies only to the President or Acting
President. No violation of CSC reso. vs.
midnight appointment where the filling up
resulted from careful consideration of her
qualifications & she had been Acting
Agri. Head for 1 year (Quirog vs.
Aumentado, 570 SCRA 582).
In the case of Quirog vs. Aumentado, 570 SCRA
582, before then Gov. of Bohol ended his term
that was in June 2001. He issued an appointment
to petitioner Quirog. Quirog had been occupying
the position as head of the Agriculture
Department. So acting agricultural head for one
year before she was issued a permanent
appointment by the outgoing governor. One
issue raised here was who has the competence or
personality to question the disapproval of such
appointment? So if the CSC disapproves the
appointment issued, the legal personality or the
real parties in interest to question the disapproval
of course would be the appointing power and
the appointee. Considering that the governor
had already ended his term, and so the real party
in interest now to question would be Quirog, not
anymore the governor.
The 2nd issue was WON there was violation of this
CS Reso. Prohibiting midnight appointments. Here
the CSC issued a resolution prohibiting midnight
appointment on June 4, 2001. The SC ruled that
this resolution issued by the Commission came
after the assumption to office by Quirog. In other
words, Quirog on the basis of the permanent
appointment issued to her assumed to discharge
the functions of the office on June 1. One other
argument here is the prohibition embodied in the
Constitution against midnight appointments does
not apply to appointments issued by outgoing
local government executives. In other words, the
Constitutional prohibition on midnight
appointments applies only to the President or
Acting President. (Sec. 15, Art. VII)
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The actual reason for sustaining the validity of the
appointment of Quirog was the fact that she had
been occupying the position in an acting
capacity. In fact the appointment was based on
her qualifications. There were deliberations as to
her qualifications.
Art. Vll, Sec. 15, Constitution
• “Two months immediately before the next
presidential elections and up to the end of
his term, the President or Acting President
shall not make appointments, except
temporary appointments to executive
positions when continued vacancies
therein will prejudice public service or
endanger public safety.”
• Outgoing Mayor Abeja of Pagbilao,
Quezon appointed 14 employees. The
new mayor seeks their recall. Prohibition
on “midnight appointments” in Art. Vll,
Sec. 15 of Constitution applies only to
presidential appointments & not to local
chief executives. There is no law that
prohibits local elective officials from
making appointments during the last days
of his tenure. The appointing authority,
absent any prohibition, can validly issue
appointments until his term expires, as
long as the appointee meets qualification
standards for the position (De Rama vs.
CA, 353 SCRA 94).
In De Rama vs. CA, 353 SCRA 94, the outgoing
mayor issued an appointments to 14 employees.
So the new mayor seeks the recall arguing that
this falls within the prohibition under the
Constitution. Again, the SC ruled that the
prohibition on “midnight appointments” in Art. Vll,
Sec. 15 of Constitution extends only to
presidential appointments but not to
appointments made by local chief executives.
But again, even if we say that it does not apply to
appointments issued by outgoing local chief
executives, this has a CAVEAT. The appointments
must still be based on the merits and fitness of the
appointee. So there is no law that prohibits the
local elective official from making an
appointment during the last days of his tenure in
office. The appointing power can in fact issue the
appointments until the end of his term with a
 2016 Public Officers & Corporation 4th yr Review
caveat that must meet the qualification
standards required for the position and eligibility.
The reason for this rule on midnight appointment is
to prevent this outgoing official from so issuing
appointments on the basis of political
considerations and to give opportunity to the
incoming official to choose his own people
consistent with his policy.
• Supreme Court voided 89 appointments
made by the city mayor within the month
that he left office, ruling that they were
mass appointments prohibited under CSC
Resolution 010988 dated June 04, 2001.
The appointments were hurriedly issued
without deliberations by the Personnel
Selection Board (Nazareno et al. vs. City
of Dumaguete, 617 Phil. 795)[2009].
In the case of Nazareno et al. vs. City of
Dumaguete, 617 Phil. 795, the ruling of the Court
here was different. The SC nullified the
appointments issued by the outgoing city mayor
made within the month that he left office
because they were mass appointments that were
in violation of CSC Resolution 010988 dated June
04, 2001. This Resolution provides for guidelines.
Here, the Court noted that these appointments
were hurriedly made without the deliberation by
the Personnel Selection Board.
• Prohibition on midnight appointments only
applies to presidential appointments. It
does not apply to appointments made by
local chief executives. Nonetheless, CSC
has power to promulgate rules/regulations
to professionalize the civil service. It may
issue rules prohibiting LG executives from
making appointments during the last days
of their tenure. Appointments of LG
executives must conform to these CS rules
to be valid (Prov’l. Gov’t of Aurora v.
Hilario Marco, 04/22/2015).
In the case of Prov’l. Gov’t of Aurora v. Hilario
Marco, 04/22/2015, when the outgoing governor
left even before the expiration of her term, she
issued an appointment to Hilario Marco as
Development Specialist and when the new
governor assumed office on the basis of the
recommendation of her subordinates that there
50 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
was non-availability of funds, the new governor
seeks to set aside the appointment issued to
Marco. One other reason cited was that this was
a midnight appointment. Again, the SC ruled that
the prohibition on midnight appointments only
applies to presidential appointments. It does not
apply to appointments made by local chief
executives. But again, it will not prevent the CSC
from issuing rules and regulations with the end
objective of professionalizing the civil service. And
so the Commission is not prevented from issuing
rules and regulations prohibiting LG executives
from making appointments during the last days of
their tenure. That’s why this CSC Resolution 010988
dated June 04, 2001 provides for guidelines so
that the appointment may not be considered as
midnight appointment. So here, the appeal of
Marco was later on sustained by the Commission
proper although earlier the Commission Field
Office disapproved his appointment. The Court
likewise sustains the validity of the appointment
issued by the outgoing governor to Hilario Marco.
G.R. No. 202331 April 22,
2015
THE PROVINCIAL GOVERNMENT OF
AURORA, Petitioner,
vs.
HILARIO M. MARCO, Respondent.
The prohibition on midnight appointments
only applies to presidential appointments.
It does not apply to appointments made
by local chief executives.
Nevertheless, the Civil Service Commission
has the power to promulgate rules and
regulations to professionalize the civil
service. It may issue rules and regulations
prohibiting local chief executives from
making appointments during the last days
of their tenure. Appointments of local
chief executives must conform to these
civil service rules and regulations in order
to be valid.
Xxx
The Province claims that Marco was a
midnight appointee. Moreover, he was
among those appointed "en masse"113 by
Governor Ong before the end of her term.
 2016 Public Officers & Corporation 4th yr Review
Thus, the Civil Service Commission should
have disapproved Marco’s appointment.
A midnight appointment "refers to those
appointments made within two months
immediately prior to the next presidential
election."114 Midnight appointments are
prohibited under Article VII, Section 15 of
the Constitution:
SECTION 15. Two months immediately
before the next presidential elections and
up to the end of his term, a President or
Acting President shall not make
appointments, except temporary
appointments to executive positions when
continued vacancies therein will prejudice
public service or endanger public safety.
Midnight appointments are prohibited
because an outgoing President is "duty
bound to prepare for the orderly transfer
of authority to the incoming President, and
he [or she] should not do acts which he [or
she] ought to know, would embarrass or
obstruct the policies of his [or her]
successor."115 An outgoing President
should not "deprive the new administration
of an opportunity to make the
corresponding appointments."116
However, the constitutional prohibition on
midnight appointments only applies to
presidential appointments. It does not
apply to appointments made by local
chief executives.
Xxx
We agree with the Civil Service
Commission and the Court of Appeals that
Governor Ong issued Marco’s
appointment in accordance with
Resolution No. 030918. Although his
appointment was made five (5) days
before the end of Governor Ong's term,
Marco was fully qualified for the position
and had undergone regular .screening
processes before the election ban. As the
Civil Service Commission found, Marco
"applied for the [position of Cooperative
Development Specialist II] [and] passed
the screening conducted by the
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Personnel Selection Board (PSB) on
February 12 & 13, 2004[.]"132 The Court of
Appeals reiterated this finding in its
Decision dated March 2, 2012.133 Absent
a showing of grave abuse of discretion,
this court will not disturb the findings of fact
of the Civil Service Commission,134
especially since it has acquired
"specialized knowledge and expertise"135
in the field of civil service law.
Assuming without conceding that
Governor Ong's 26 appointments were
issued in bulk, this per se does not
invalidate the appointments. Unlike
Resolution No. 010988, Resolution No.
030918 does not prohibit appointments
that are large in number. Moreover, 26
appointments can hardly be classified as
"mass appointments," compared with the
89 appointments this court invalidated in
Nazareno.
M\arco's appointment was valid. The Civil
Service Commission correctly approved
his appointment.
Considering that Marco had already
accepted his appointment by the time
the Province prevented him from
assuming his office, his appointment
remains effective up to the present.136
Consequently, the Civil Service
Commission correctly ordered the
Province to reinstate Marco as
Cooperative Development Specialist II
and to pay him his back salaries from July
8, 2004 when the Province prevented him
from reporting for work up to his actual
reinstatement.
• CSC Res. 010988 dated 6/4/01, prohibiting
the issuance of mass “midnight
appointments” by outgoing local chief
executives immediately before &/or after
the elections, is valid. The reasons are to
ensure that partisan loyalties will not be a
factor in the appointment process and to
prevent incumbents from gaining any
undue advantage during the elections.
Note : Under the Omnibus Election
 2016 Public Officers & Corporation 4th yr Review
Code (Sec. 261), such appointment during
45 day period before regular election &
30 day before special election is an
election offense.
• However, appointments after elections by
losing candidates may be allowed under
the following conditions:
a. It has gone thru regular screening by
PSB before the prohibited period on
issuance of appointment as shown by PSB
report or minutes of its meeting;
b. appointee is qualified;
c. there is need to fill up vacancy
immediately in order not to prejudice
public services or endanger public safety;
d. It is not one of those mass
appointments issued after elections. (id.)
Reassignment
• While a temporary transfer or assignment
of personnel is permissible even w/o his
prior consent, it cannot be done when the
transfer is a preliminary step toward his
removal, or a scheme to lure him away
from his permanent position, or when it is
designed to indirectly terminate his
service, or force his resignation.
• Security of tenure covers not only
employees removed without cause, but
also cases of unconsented transfers &
reassignments w/c are tantamount to
illegal/constructive removal.
Now what is the rule on the matter of
Reassignment? The rule here is that a temporary
transfer or assignment of personnel is permissible
even w/o his prior consent. Of course that is
premised on the non-diminution of status, benefits
or salaries. So while a temporary transfer or
assignment of personnel is permissible even w/o
his prior consent, it cannot be done as an initial
step to remove him from his office. This would be
a violation of his security of tenure. Or if it is
intended to separate him from his original position
or his reassignment is an indirect termination of his
service or to force him eventually to resign. So
these are the indicia of invalid reassignment.
It should be stressed that the guaranteed security
of tenure under the Constitution applies not only
to officers and employees who are removed
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without cause, but this also extends to cases of
unconsented transfers & reassignments because
in the latter case these are equivalent to
illegal/constructive removal from the service.
When appointee may be
reassigned/transferred
• Where appointment indicates no specific
station, employee may be transferred or
reassigned provided the transfer affects
no substantial change in title, rank or
salary.
• The rule that prohibits unconsented
transfer as violative of security of tenure
applies only to an officer who is
appointed – not merely assigned – to a
particular station. Sta. Maria has a 5 year
term as Dean of College of Education
(Sta. Maria vs. Lopez, 31 SCRA 637)
If the appointment so issued to the officer or
employee does not provide for a specific station,
he may be transferred or reassigned provided the
transfer affects no substantial change in title, rank
or salary. Hence, no diminution of benefits. So this
is not within the ambit of unconsented transfer. Of
course the assignment is always justified in the
interest of the service. But if the appointment
provides for a workplace or station, there can be
no reassignment of the person without his prior
consent.
In the case of Sta. Maria vs. Lopez, 31 SCRA 637,
where the appointment indicates no specific
workplace or station, employee may be
transferred or reassigned provided the transfer
affects no substantial change in title, rank or
salary. So it follows therefore if the appointment
indicates a specific workplace or station, the
employee cannot simply be transferred or
reassigned without his prior consent. In the case of
Dean Sta. Maria, he got appointed as Dean of
the College of Education in UP for a term of 5
years. But even before the lapse of the 5 year
term as Dean, the UP President Lopez issued an
order reassigning him to the Office of the
President. Take note, the appointment of Sta.
Maria is to a particular station. Therefore, he
cannot simply be reassigned elsewhere without
his prior agreement. The rule that prohibits
unconsented transfers as a violation of the
security of tenure guarantee applies only to an
 2016 Public Officers & Corporation 4th yr Review
officer who is appointed to a particular station.
Here, there was no consent given. The SC ruled
this is constructive dismissal.
• A reassignment (Finance Div. Chief of
PAG-ASA DOST to PAG-ASA Finance
Service Office in Taguig) which removes
from the officer her power of supervision
over 41 employees is a diminution of her
status. Even if the reassignment is
temporary, it is still diminution
(Sec.Padolina vs. Fernandez, 343 SCRA
442).
In Padolina vs. Fernandez, 343 SCRA 442, this
respondent officer Ofelia Fernandez Chief of the
PAG-ASA DOST, she got assigned by Secretary
Padolina to PAG-ASA Finance Service Field Office
in Taguig. Prior to such reassignment, she had
already supervision over 41 employees but in her
new reassignment, she did not have any more
people to supervise. The SC ruled that clearly
there was here a constructive dismissal because
there was diminution in terms of her status as a
supervisor. So even if the reassignment is is
temporary, there is still diminution.
• BIR Commissioner is authorized to assign
or reassign revenue officers as exigencies
of service require, w/o demotion in rank
and salary. Respondent’s reassignment
from Chief Rev. Officer in the Revenue
District - Assessment Div. to Asst. Div. Chief
of National Office –Collection Div. w/c is
not her expertise is not a demotion
(Vinzons-Chato vs. Martinez, 344 SCRA
18).
• Bad faith is evident by the fact that the
reassignment was issued days after
reassigned officials filed graft case vs.
petitioner and that the authority to
reassign officers of the LWUA lies with the
Board & not with petitioner (Reyes, Jr. vs.
Belisario, 596 SCRA 35).
In the case of Vinzons-Chato vs. Martinez, 344
SCRA 18, question may the head of the BIR assign
or reassign revenue officers? Yes, he can do that
in the exigency of the service so long as it will not
involve any diminution in rank nor in salary. Here,
Martinez got reassigned from Chief Revenue
Officer in the Revenue District to Assessment Div.
53 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
to Asst. Div. Chief of National Office –Collection
Division of the BIR. Now she claims that her new
assignment is not within her expertise. Hence, a
demotion. Because her expertise is assessment. So
the SC ruled that this is within the power of the BIR
Commissioner to assign or reassign revenue
officers as exigencies of service require. To rule
otherwise would be subjugating public interest to
the whims or personal interest of the officer
concerned.
In Reyes, Jr. vs. Belisario, 596 SCRA 35, you have
here the administrator of the LWUA issuing an
order reassigning Belisario et al and this came
after these employees Belisario et al filed a case
against Reyes. So the Court ruled that there was
really bad faith on the part of Reyes for issuing the
reassignment order which came after the filing of
the employees of cases against Reyes. The other
reason here was that under the charter of the
LWUA, the head of the LWUA does not have the
power to issue reassignment orders. He can only
recommend to the Board and the Board has the
power to make such reassignment. So there was
constructive dismissal.
Career Executive Service (CES)
• Security of tenure in CES is acquired
w/respect to rank and not to position.
Within CES, personnel can be shifted to
another position or office w/o violating
their rights to security of tenure.
• Respondent’s appointment is not
permanent as she does not have the rank
appropriate for the position of Chief Public
Attorney. On issue that Demaisip is a
non-eligible, the law allows such
appointment provided that she
subsequently passes the CES exam. Bacal
cannot raise the lack of qualification of
Demaisip in a quo warranto (Cuevas &
Demaisip vs. Bacal, 347 SCRA 339).
• 2 requisites must concur in order that an
officer in the CES may attain security of
tenure, namely: a) CES eligibility; and
b) appointment to the appropriate
CES rank.
• Justification of transfer/reassignment of
CESO to other positions: mobility and
flexibility of assignments to enable the
government to tap their talents and
 2016 Public Officers & Corporation 4th yr Review
services.
So what is the rule for positions in the 3rd level?
Take note we mentioned 3 classes of positions in
the Civil Service. The security of tenure for the
positions in the first two levels is acquired with
respect to their positions, but not for those
positions in the 3rd level. The security of tenure in
the CES is acquired not with respect to their
position but to their rank. Do you still recall those
conditions that we stated for the 3rd level under
the Rev. Admin. Code Bk. V? it must be one of
those enumerated and he must be a presidential
appointee.
In other words, the security of tenure in the CES or
3rd level is acquired by the officer with respect to
the appropriate rank. Within the CES, the officers
may be reassigned, transferred or shifted from
one position or office to another, and there is no
violation of security of tenure PROVIDED that
there is no diminution in terms of salary, etc.
The concepts applicable to the CES are mobility
and flexibility of assignments. This would justify the
transfer or reassignment CES officer to other
positions to enable the government to make use
of their talents. They are the so-called cream of
the crop.
The 2 requisites in order for an officer in the CES
may attain security of tenure are:
1. He must have the appropriate CES
eligibility; and
2. Appointment to the appropriate CES rank.
In the case of Cuevas & Demaisip vs. Bacal, 347
SCRA 339, Josefina Bacal got appointment during
the time of Ramos as Head of the PAO. Later on,
when Estrada assumed office, she was directed
to report for office to Cagayan De Oro as
Regional Director of the PAO. She claimed
constructive dismissal. Is she correct? Again, the
security of tenure for the positions in the CES is
acquired with respect to rank. Now in the case of
Bacal, considering that she is a CESO with rank III
and the position of the Chief of PAO has the
appropriate CESO rank 1, it cannot be said that
Bacal holds the position in a permanent capacity.
He occupied the position of Chief of the PAO only
in a temporary capacity because she did not
possess the requisite CES rank appropriate to the
position whichi is CESO rank 1. What about the
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claim of Bacal that the one who replaced her
Demaisip was not a CES officer or even CES
eligible, the Court ruled that the law allows the
appointment even of a non-eligible provided that
the appointees passes the CS examination. It
follows therefore that the one who replaced her
need not be a CS Eligible because this is on the
condition that she subsequently passes the CS
examination.
The other argument here is WON Bacal has the
legal personality to question the appointment of
Demaisip to the position of Chief of the PAO. Take
note what we mentioned in a quo warranto
proceeding. One who files this petition for QW to
oust the officer in possession of office must himself
assert that he has the legal right to the office or
position. So Bacal has no legal personality
because she cannot be entitled to the position,
she being a CESO rank 3 only.
• Although the law allows the appointment
of a non-CES eligible to CES positions in
the government in the absence of
appropriate eligibles & in the interest of
public service, however, in all cases the
appointment is at best temporary
conditioned on the subsequent
acquisition of the required CES eligibility.
Petitioner’s separation from the service
without cause as Dep. Director for Hospital
Support Services at the Lung Center of
Phil. is valid as her position belongs to the
CES (Amores vs. CSC, 29 April ’09).
In Amores vs. CSC, 29 April ’09, you have here the
petitioner occupying the position for Deputy
Director for Hospital Support Services at the Lung
Center of Phil. And subsequently she was
separated from the service without cause. Was
the separation valid? She did not possess the
requisite eligibility required for the position. And so
if she got appointed to such position then it was
only for a temporary capacity due to her lack of
eligibility for the position. So the law allows the
appointment even to a non-CES eligible to
positions in the CES in government in the absence
of appropriate eligibles because of the need for
such appointments in the interest of public
service. BUT AGAIN it should be emphasized that
such appointments of a non-CES eligible is ONLY
temporary. This is conditioned upon the
 2016 Public Officers & Corporation 4th yr Review

acquisition by the appointee of the required CES level eligibility pursuant to CS law, rules &
eligibility. So if she still did not acquire the requisite regulations because they are appointed
eligibility, the appointee can still be separated by the PCSO Gen. Manager, and not by
from the service even without cause. the President of the Philippines (CSC vs.
CA, 635 SCRA 749).
• Unless and until an employee in the CES is
appointed to the appropriate CES rank, he Two elements for a position to be covered by the
acquires no security of tenure even if he is CES:
a CES eligible. Respondent, though a CES 1st- position must be that enumerated in Bk. V
eligible, does not possess the appropriate Ch. 2 of EO 292;
CES rank, w/c is CES rank level V, for the 2nd- holder must be a presidential appointee.
position of Regional Director-LTO Reg. V. So if the appointing power is not the President,
He could thus be be replaced by Pres. there is no need to comply with this CES
Estrada & reassigned to other positions in requirement.
the CES (office of DOTC Secretary) as he
did not have security of tenure (General In this case of CSC vs. CA, 635 SCRA 749, the
vs. LTO RD Roco, 350 SCRA 528). The positions of Asst. Dep’t Managers ll in PCSO, the
appointment of General, a non-CES appointing power is the General Manager. So
eligible, to replace Roco is valid. there is no need for them to acquire CES eligibility
in order to have security of tenure guarantee. So
In the case of General vs. LTO RD Roco, 350 SCRA the appointments of Sarsonas & Ortega as Asst.
528, the position of the Regional Director of the Dep’t Managers ll in PCSO do not require third
LTO in this case requires the officer to have a level eligibility under the CES system because their
CESO rank V. in the case of Roco, he is a CES appointing power is not the President. Hence,
eligible. Is this sufficient to make his appointment they are not covered under the rule on Bk. V. of
permanent? The SC ruled NO. He holds office only EO 292.
in a temporary capacity because he did not
possess the requisite rank for the position. Unless Who are these officers excluded from the
and until the officer is appointed to the coverage of CES? So there is no need for this CES
appropriate CES rank. That’s why there is always a eligibility requirement.
need for a CES eligible to acquire the CES rank
because in the absence of the CES rank, it Persons Excluded from CES (CESB Res.
cannot be said that he has security of tenure. So 799,May ’09)
he may be removed and replaced. So here 1. Managerial and executive positions
Roco, even if he is a CES eligible, he does not w/fixed term of office as provided in the
possess the appropriate CES rank which is level V charter or law
required for the position of Regional Dir. Of the 2. Managerial and executive positions in
LTO. non-career service w/c include the ff:
a. Elective officials & their
Again let me refresh your memory, the conditions personal/confidential staff
under the Rev. Admin. Code for a position to be b. Secretaries and other officials of
covered by the CES, and to be covered by the cabinet rank and their
security of tenure. personal/confidential staff
c. Chairman & members of
• 2 elements for a position to be covered by commissions/boards with fixed terms of
the CES: office & their personal/confidential staff
• 1st, position must be that enumerated in d. Contractual personnel &
Bk. V Ch. 2 of EO 292; emergency staff
• 2nd, position holder must be a
presidential appointee. The appointments 3. Managerial and executive positions in
of Sarsonas & Ortega as Asst. Dep’t the national government belonging to the
Managers ll in PCSO do not require third closed career systems w/c are

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 2016 Public Officers & Corporation 4th yr Review
administered by special bodies such as
the Foreign Service, PNP, State colleges
and universities unless provided in their
respective charters, the Scientific Career
Service and the like (TN: although these
officers will not be prevented from taking
the CES examinations for their personal
career advancement)
4. Position of Head Executive Assistant
Presidential Appointments under Art. Vll,
Sec. 16
• ad interim - one made when Congress is
not in session and there is an existing
clear & present urgency caused by
impending paralyzation or obstruction of
functions.
• Regular - one made during the sessions of
Congress. Three stages in regular
appointments: nomination by President,
consent by Commission on Appointments,
and appointment by the President. No
appointment yet until it is confirmed.
This has been asked so many times in the Bar.
Under Art. VII, Sec. 16:
Section 16. The President shall nominate
and, with the consent of the Commission
on Appointments, appoint the heads of
the executive departments, ambassadors,
other public ministers and consuls, or
officers of the armed forces from the rank
of colonel or naval captain, and other
officers whose appointments are vested in
him in this Constitution. He shall also
appoint all other officers of the
Government whose appointments are not
otherwise provided for by law, and those
whom he may be authorized by law to
appoint. The Congress may, by law, vest
the appointment of other officers lower in
rank in the President alone, in the courts, or
in the heads of departments, agencies,
commissions, or boards.
The President shall have the power to
make appointments during the recess of
the Congress, whether voluntary or
compulsory, but such appointments shall
be effective only until disapproved by the
Commission on Appointments or until the
next adjournment of the Congress.
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So there is an express enumeration under Art. VII,
Sec. 16 of those positions that would need the
concurrence of the Comm. on Appointments.
So there are 2 kinds – rather 3 kinds of Presidential
appointments if you also consider Acting
appointments.
Ad interim appointment is an appointment made
when Congress is not in session and there is really
a need to fill the vacancy in order to prevent
paralyzation of governmental operations. So this
shall take effective upon acceptance of course.
Regular appointment is only during sessions of
Congress. So there are 3 stages. There is
nomination by the President. Of course there is a
need for consent. And when there is already
consent by Commission on Appointments, the
appointment shall be issued by the President. So
in the absence yet of confirmation of the COA to
regular appointments, no appointment can be
made.
• Distinction between ad interim
appointments from appointments in an
acting capacity:
• Both are effective upon acceptance. But
ad interim appointments are extended
only during recess of Congress, while
acting appointments may be issued
anytime there is vacancy and are not
submitted to the Commission on
Appointments.
• Appointments by GMA of respondents as
acting Secretaries while Congress is in
session is constitutional. To avoid abuses,
acting appointments cannot exceed one
year. President’s issuance of
appointments in an acting capacity is not
impairment of power of Congress
(Pimentel vs. Ermita, 472 SCRA 589).
In the Bar, there was a question regarding the
distinction between ad interim appointments from
appointments in an acting capacity. This is the
case of Pimentel vs. Ermita, then Pres. GMA issued
Acting appointments to Durano, Gonzales, etc.
what happened was then President issued acting
appointments to them even while Congress was
in session. So the issue is WON there was
usurpation by GMA of such authority belonging to
 2016 Public Officers & Corporation 4th yr Review
Congress. The appointment issued by her was
unconstitutional. The Court ruled that the issuance
of appointment by GMA was valid and there was
no usurpation of power supposedly belonging to
Congress because the COA is separate, distinct
from Congress. The powers of the COA are
derived not from Congress but from the
Constitution itself. But really there is a danger here
where there may be a circumvention of the
requirement for submission to the COA. Here, the
Court ruled that there was no danger here
because GMA immediately issued ad interim
appointments. So the court ruled that to prevent
such abuse, the acting appointments cannot
exceed one year.
Take note again the distinctions between ad
interim and acting appointments. Both are
effective upon acceptance. But ad interim
appointment is extended only when Congress is in
recess, whereas acting appointments may be
issued anytime where there is vacancy and
urgency in order to fill the vacancy. In the case of
an acting appointment, there is no need for
submission to the Commission on Appointments,
unlike an ad interim appointment.
• Ad interim appointment is permanent,
and not a temporary appointment that
can be withdrawn or revoked anytime. It
becomes complete & irrevocable once
the appointee has qualified into office.
President can renew ad interim
appointment of a by-passed appointee.
But an ad interim appointee disapproved
by the Commission can no longer be
extended a new appointment (Matibag
vs. Benipayo, 380 SCRA 49).
• Appointments solely for President to make
are not ad interim appointments (Bautista
vs. Salonga, 172 SCRA 160).
In the case of Matibag vs. Benipayo, 380 SCRA 49,
so here the Court ruled that Ad interim
appointment is permanent, and not a temporary
appointment that can be withdrawn or revoked
anytime. It becomes complete & irrevocable
once the appointee has qualified into office or
discharged the functions of the office. The
President can renew ad interim appointment of a
by-passed appointee because when you say
“by-passed the appointment” there is no action
57 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
yet or deliberation yet on the merits. So the
President has the authority to issue again another
ad interim appointments. BUT if the ad interim
appointment was already disapproved by the
Commission, the President can no longer appoint
such officer.
In Bautista v. Salonga, (this has been asked in the
bar many times) where the law provides that the
President has the sole appointing authority, the
appointment is NOT an ad interim appointment.
Ad interim appointments, by their very nature
under the 1987 Constitution, extend only to
appointments where the review of the
Commission on Appointments is needed. That is
why ad interim appointments are to remain valid
until disapproval by the Commission on
Appointments or until the next adjournment of
Congress; but appointments that are for the
President solely to make, that is, without the
participation of the Commission on
Appointments, can not be ad
interim appointments.
We mentioned that under the Constitution, there
are positions to be solely appointed by the
President, such as in this case, the position of chair
of Commission of Human Rights.
From Fulltext: Constitutional Law, to begin with, is
concerned with power not political convenience,
wisdom, exigency, or even necessity. Neither the
Executive nor the Legislative (Commission on
Appointments) can create power where the
Constitution confers none. The evident
constitutional intent is to strike a careful and
delicate balance, in the matter of appointments
to public office, between the President and
Congress (the latter acting through the
Commission on Appointments). To tilt one side or
the other of the scale is to disrupt or alter such
balance of power. In other words, to the extent
that the Constitution has blocked off certain
appointments for the President to make with the
participation of the Commission on
Appointments, so also has the Constitution
mandated that the President can confer no
power of participation in the Commission on
Appointments over other appointments
exclusively reserved for her by the Constitution.
The exercise of political options that finds no
support in the Constitution cannot be sustained.
 2016 Public Officers & Corporation 4th yr Review
Nor can the Commission on Appointments, by the
actual exercise of its constitutionally delimited
power to review presidential appointments,
create power to confirm appointments that the
Constitution has reserved to the President alone.
Stated differently, when the appointment is one
that the Constitution mandates is for the President
to make without the participation of the
Commission on Appointments, the executive's
voluntary act of submitting such appointment to
the Commission on Appointments and the latter's
act of confirming or rejecting the same, are done
without or in excess of jurisdiction.
• 4 groups of officers whom the President
shall appoint
1. Heads of executive departments,
ambassadors, other public ministers …
2. All other officers whose appointments
are not otherwise provided by law.
3. Those whom the President may be
authorized by law to appoint.
4. Officers lower in rank whose appointments
the Congress may by law vest in the
President alone.
• The “other officers” referred to whose
appointments are vested in the President
under the Const.
This has been asked also in the bar. The 1st group,
(heads of executive departments, ambassadors,
officers in the AFP from the rank of colonel but not
officers of the PNP because the constitution does
not provide for such requirement) needs
concurrence with the CA.
The second group, if the law is silent, the
appointing power is the President or if the Court
Rules on the unconstitutionality of the appointing
authority, then the appointing power should be
the president. There is no need for concurrence
wit the CA. also those whom the president may
be authorized by law to appoint.
Fourth, those officers lower in rank, the “other
officers”, they are those in bureau level like the
NBI director etc.
Positions which are vested by the constitution to
the president alone like the chair and members of
constitutional commissions, they need
concurrence with the CA.
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CASES
• Sarmiento vs. Mison, 156 SCRA 549
• Tarrosa vs. Singson, 232 SCRA 555
• Calderon vs. Carale, 208 SCRA 254
• Manalo vs. Sistoza, 312 SCRA 239 (’02 BQ)
[Secs. 26 & 31 of RA 6975 are
unconstitutional]
*Congress cannot expand the
confirmation powers of the Commission
on Appointments.
In Sarmiento v Mison, the position of commissioner
of Bureau of Customs does not belong to the list
of position that needs confirmation with the CA.
Tarrosa v Singson , in the matter of the provision of
law that provided the appointment to the
position of Central Bank Governor, in this case
Singson, should be submitted to the CA is
unconstitutional. The position of Central Bank
Governor is not one of those positions mentioned
in the first sentence of Art. Vii, Sec.16 that needs
confirmation by the CA.
Calderon v Carale, the members of the
commissioners and chairman of the NLRC, do not
need to be confirmed by the CA.
Manalo v Sistosa, this involves the Constitutionality
of Sections 75 and 31, requiring that the senior
positions on the PNP, the Senior Superintendent,
Chief Superintendent, Deputy Director and the
Director General of the PNP that these be
submitted to the CA, is unconstitutional.
Thus, clearly, the Congress does not have the
authority to expand the confirmation powers of
the Commission on Appointments under Sec. 16,
Art. VII of the Constitution.
MCQ: The basic distinction between a
regular & an ad interim appointment is
a) Regular appointment is made when
Congress is in session, while ad interim
appointment is extended when Congress
is not in session. -
b) Regular appointment does not require
nomination which is required in ad interim
appointment.
c) Neither of the appointments needs
confirmation before the appointee may
assume his position.
d) Appointee in regular appointment
immediately assumes the duties of his
office without waiting for confirmation.
The correct answer is letter A.
Prohibition on midnight appointment
 2016 Public Officers & Corporation 4th yr Review
under Sec. 15, Art. Vll does not apply to
appointment in the Supreme Court. The
vacancy in the Supreme Court brought
about by the compulsory retirement of
Chief Justice Puno shall be filled in the
light of Sec. 4, Art. Vlll stating that any
vacancy in the S.C. shall be filled within 90
days from the occurrence thereof. The
express intent of the framers is enshrined
in said Sec. 4 which is command to the
President to fill up the vacancy within 90
days from its occurrence (De Castro vs.
JBC, 17 March 2010).
The case of de Castro v JBC has been asked
many times in the bar, prohibition on midnight
appointment under Sec. 15, Art. Vll does not
apply to appointment in the Supreme Court. The
reason is Sec. 4, Art. VIII stating that any vacancy
in the SC shall be filled within 90 days from the
occurrence thereof. Thus, the express intent of the
framers of the Constitution, which serves as a
directive to the President to fill up the vacancy in
the SC within 90 days from the occurrence
thereof.
July 15, 2016
Appointments of fourth group of lower-ranked
officers may by law be vested in the head of the
board. Chair of CCP is vested with power under
PD 15 to appoint lower-ranked officers but not the
co-trustees of the board. However, Sec. 6 of PD 15
authorizing the trustees of the CCP Board to elect
their co-trustees is unconstitutional since it
violates Sec. 16, Art. Vll. The President necessarily
exercises control over the CCP w/c is an office of
the Executive Branch. (Rufino vs. Endriga, 496
SCRA 16).
If you recall, we mentioned that there are four
classifications of officers whom the president may
have the authority to appoint.
Appointments of fourth group of lower-ranked
officers as provided by law may be vested in the
head of Office or the President.
Under the Charter of the Cultural Center of the
Philippines, there’s this provision authorizing the
trustees of the CCP Board to elect their
59 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
co-trustees. The SC ruled that this provision
authorizing the trustees to elect their co-trustees is
unconstitutional since it is violative of Article VII
Section 16. So where the charter itself provides
authority to the Chairman of the Cultural Center
to appoint, of course such appointing authority
refers to those lower in rank. Here the Court ruled
that the Board does not have the power to elect
their co-trustees. The other reason here is that the
CCP is under the Office of the President and the
President thus exercises the power of control over
the Cultural Center of the Philippines.
Modes of Terminating Official Relations
Abolition of office neither means removal or
separation from the service in violation of security
of tenure. Abolition must be done in good faith.
The termination of petitioner as SPI Director by
reason of abolition of SPI, a line agency of DOST,
and the creation of 2 new institutes in lieu thereof,
resulting in increase in number of positions,
cannot give rise to a valid abolition. Where the
abolished office and the offices created have
similar functions, the abolition lacks good faith
(Guerrero vs. Arizabal, 186 SCRA 109).
In Guerrero vs. Arisabal, where the petitioner was
terminated from his office as the director of the
Science Promotion Institute and in lieu of that
office there were 2 institutes created, in fact
increasing the number of management positions,
the Supreme Court ruled that therei s no bona
fide abolition of an office. Where the abolished
office and the offices created in its place have
similar functions, the abolition lacks good faith.
NEA Board, thru its Res. 46 & 59, has power to
terminate all NEA employees with the
implementation of a reorganization program
pursuant to EPIRA law (Electric Power Industry
Reform Act of 2001) enacted by Congress or
pursuant to Sec. 5 of RA 269 thru w/c the
reorganization was carried out. Reorganization
involves reduction of personnel, consolidation or
abolition of offices by reason of economy or
redundancy of functions. The termination of NEA
employees cannot be impugned absent proof of
bad faith (United Claimant Association vs. NEA,
01/1/12, GR 187107).
 2016 Public Officers & Corporation 4th yr Review
Issue here is whether the Board of the
NEA(National Electrification Authority) has the
power to terminate the employees of the NEA.
Take note that the basis of the board is the law
itself. There is this reorganization program pursuant
to the EPIRA law, so pursuant to Sec 5 of this law, it
empowers the board of the NEA to carry out this
reorganization. Reorganization of course involves
reduction of personnel, consolidation of offices by
reason of redundancy, overlapping of functions
and or by reason of economy. So the Court in this
case ruled that the separation of the employees
of NEA cannot be questioned in the absence of
bad faith. So there’s always the caveat that it
should be done in good faith.
Incompatibility of Offices
Acceptance of another office incompatible with
the first office ipso facto vacates the first office.
Incompatibility is not mere physical
impossibility… but the antagonism.
Positions of Inspector General of IAS and
NAPOLCOM Commissioner are incompatible
because RA 8551 prohibits any IAS personnel
from sitting in a committee tasked to deliberate
on the appointment, promotion or assignment of
any PNP personnel. NAPOLCOM also has power
of control & supervision over the PNP
(Canonizado vs. Aguirre, 351 SCRA 661).
Another mode is the incompatibility of offices. The
rule here is the acceptance of the public officer
of another office incompatible with the first office
automatically vacates the first position. It is not
simply physical impossibility of the same officer
holding these two positions. But more than that
there is *** arising from the discharge of the same
office of both positions.
For example in the case of Canonizado vs.
Aguirre, the court ruled that the Positions of
Inspector General of Internal Affairs Service of the
Philippine National Police and the position of
NAPOLCOM Commissioner are incompatible
because the law PNP Law, R.A. 8551, itself
prohibits any IAS personnel from sitting in a
committee mandated to deliberate on the
appointment, promotion or assignment of any
PNP personnel. NAPOLCOM on the other hand
has power of control & supervision over the PNP.
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But in this specific case, the Court ruled that this
mode is not applicable to him because at the
time of his acceptance of the position of
Inspector, he already abdicated, surrendered the
position of Commissioner of NAPOLCOM on the
basis of Sec. 8 of R.A. 8551. Later on this was
provision in fact was declared by the Supreme
Court as unconstitutional.
The crucial test in determining whether
incompatibility exists is whether one office is
subordinate to the other, i.e. one office has the
right to interfere with the other. The positions of
PCGG Chair and Chief Presidential Legal Counsel
occupied by Elma are incompatible(PICI vs.
Elma, 494 SCRA 54). [cf Sec. 7, Art. lX-B re
prohibition to hold more than one gov’t office
“unless otherwise allowed by law or by the
primary functions of his position xxx”].
In PICI vs. Magdangal Elma, the issue is whether
Elma can occupy both position, Chairman of
PCGG and Chief Presidential Legal Counsel.
What is the test to determine incompatibility?
Whether one office is subordinate to the other
such that one office has the right to interfere with
the discharge of the duties of the other. Clearly
there is such incompatibility here because there
may arise a situation where the actions of the
PCGG have to be submitted for review to the
Chief Presidential Legal Counsel. You have here
the same officer reviewing on appeal his own
actions as the chair of the PCGG. Here there is an
incompatibility of offices.
Take note, what is provided under the
Constitution, Section 7 of Article IX-B, “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.”
There’s this prohibition to hold more than one
government office. Of course, the exception
would be unless there is such provision of law
authorizing him to do so or by the primary
functions of his office.
Resignation
 2016 Public Officers & Corporation 4th yr Review
- An expression of the incumbent of intention to
surrender and relinquish the office and its
acceptance by competent authority.
- Courtesy resignation is not the resignation
contemplated by law (Ortiz vs. Comelec,
6/28/88)
- Abandonment of office before acceptance of
resignation is punishable under Art. 238 RPC.
- Antonio could not have lost office as SB member
by resignation because he submitted his
resignation to the Mayor and not to the SB as
provided under Sec. 82, LGC (SB of San Andres vs.
CA)
Resignation here must mean the intention to
surrender. There is voluntary renunciation,
relinquishment of the office. In Ortiz vs. COMELEC,
the courtesy resignation as so submitted here by
Commissioner Ortiz is not the resignation
contemplated under law, because there was no
voluntary relinquishment. He simply submitted
himself to the political power because right after
the assumption to office of the new
administration, Pres. Corazon Aquino, on the basis
of the issuance requiring them to submit courtesy
resignation, such was done in deference to the
authority of the President. This is not the courtesy
resignation contemplated by law. Of course the
need for the acceptance by competent
authority, otherwise the office who abandons
office even before acceptance of his resignation
may be punished with the penalty of arresto
mayor.
In the case of Sanngguniang Bayan of San
Andres vs. CA, take note that submission of the
resignation must be to the proper authority. What
Antonio did was to submit his resignation to the
Mayor. But under the Local Government Code,
Section 62, in case of a member of the
Sangguniang Bayan, the submission however
should be to the Sanggunian itself. There was no
proper submission to the competent authority.
Antonio could not have lost office on the basis of
resignation.
There can be no promise, express or implied, of
another position just because the President
requested for and accepted Usec. Collantes’
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courtesy resignation. An express promise of
another position would be void because its
object is outside the commerce of man
(Collantes vs. DND, 517 SCRA 561).
Respondent Clerk of Court’s resignation before
the investigation indicates his guilt and it will not
be a way out of administrative liability. Penalty
may still be imposed (Gonzales vs. Escalona, 566
SCRA 4).
In Collantes vs. DND, take note that there can be
no bargaining of public office. Where there is
alleged promise on the part of the Office of the
President given to Collantes that he would be
appointed to some other office as USEC, the
Court ruled that there could be no promise
whether express or implied of another position just
because the President accepted the resignation
because this would be contrary to public policy.
Any such promise of an office would be void
because its object is outside the commerce of
man.
In Gonzales vs. Escalona, the issue here is what
happens to the administrative case against the
public officer where during pendency thereof,
public respondent resigns. What is the effect of
the resignation on the pending administrative
case? The Court ruled that the resignation of
respondent clerk of court before investigation
indicates his guilt. This also applies in admin
proceedings. It will not be a way out for him from
admin responsibility. He can still be
administratively sanctioned. Penalty may still be
imposed against him despite the fact that he has
severed relations with the government by reason
of resignation pending investigation.
Although the Ombudsman is not precluded by
Sec. 20(5) of RA 6770 from conducting the
investigation, Ombudsman can no longer institute
an admin case vs. Andutan – who had resigned
as Dep. Dir. of DOF on basis of Memo of the Exec.
Sec. directing all non-career officials to vacate
their positions – because he was not a public
servant at time the case was filed (Omb. vs.
Andutan, Jr., July 27, 2011).
In Ombudsman vs. Andutan, almost the same
issue here. You have here the deputy director of
the DOF, Andutan. He was a non-career officer.
 2016 Public Officers & Corporation 4th yr Review
There was an issuance by the Secretary upon
authority of the President for those non-career
officials to tender their resignation, and so on that
basis he submitted his resignation.
Subsequently, there was a finding against him
and so the Ombudsman instituted administrative
action against Andutan. But at the time of the
institution he was no longer connected with the
government. Does the state still have authority to
conduct administrative investigation against him?
Although under the Ombudsman Act, Section 20
(5) the ombudsman is not prevented from
conducting an investigation of an administrative
act or omission that took place a year after the
filing thereof, despite this provision, the
Ombudsman cannot anymore take cognizance
of the case against Andutan as at the time of
such filing he was no longer connected with the
government. He had already resigned as Deputy
Director of the Department of Finance on the
basis of this memorandum of the Executive
Secretary. In other words he was no longer a
public officer at the time the case was filed.
Hasty filing by petitioner cashier of her cert. of
candidacy is a ploy to avoid administrative
charge. Other penalties may still be imposed
(Pagano vs. Nazarro, 533 SCRA 622).
Whether resigned or not is to be determined by
totality test; non-issue as Congress has declared
GMA de jure President. Inability to discharge
duties of Presidency is political & addressed
solely to Congress. Sec. 12(RA 3019) prohibiting
resignation of officer during pendency of charges
cannot be invoked by petitioner. It contemplates
of cases whose investigation don’t suffer from any
insuperable legal obstacle like immunity xx
(Estrada vs. Desierto, 3/02/01).
In Pagano vs. Nazaro, this is an exception to the
rule that the government can no longer institute
the admin action against someone who is no
longer connected with government at the time of
the institution of such case. What is the
exception? Pagano vs. Nazaro.
Here there was a conduct of audit on the
accounts of cashier Pagano, and she was found
to have liabilities in the amount of P1.4 million. 4
days after, she immediately filed a certificate of
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candidacy in effect terminating her relations with
the government on the basis of Section 66 of
OEC, automatic resignation upon the filing of the
COC. SC held that she can be made
administratively liable as the hasty filing by
Pagano of the COC is simply a ploy to escape
administrative responsibility. She can still be made
liable and a penalty can be imposed against her.
Of course this has already been asked in the bar,
the case Estrada vs. Desierto, one of the issues
raised, the mode of termination of relations,
whether or not it was by resignation, whether
resigned or not has to be determined applying
the totality test, meaning acts prior, during and
after, that would be after January 20 of 2001,
when he left the Palace. But nonetheless the
Court ruled that this has already become a
non-issue as Congress had already declared
GMA at the time as a de jure President. One of
the issues raised here by Estrada was that
applying Section 12, he should not have been
considered resigned. Section 12 prohibits
resignation of the officer during the pendency
of charges. The Court ruled that this provision is
not applicable to him, cannot be invoked by
Estrada because this provision contemplates of
cases whose investigation or prosecution does
not suffer from insuperable legal obstacle, such as
the issue of immunity from suit of a President.
Presidential appointees come under the direct
disciplining authority of the President. The well
settled principle is, in absence of contrary law,
power to remove or discipline is lodged in the
same authority on w/c power to appoint is
vested. Having the power to remove and/or
discipline presidential appointees, the President
has corollary authority to investigate such public
officials and look into their conduct in office.
Petitioner is a presidential appointee occupying
high-level position of LWUA Chair (Pichay vs.
Ochoa, 7/24/12).
We know the rule here: the power to appoint
carries with it the power to remove. In other words
if the officer is a presidential appointee, he comes
under the disciplining authority of the President.
Presidential appointees come under the
disciplining power of the President. In absence of
contrary law, the power to remove or discipline a
public officer is vested in the same authority on
 2016 Public Officers & Corporation 4th yr Review
which the power to appoint is conferred. So if the
authority to appoint is conferred on the President,
by this principle, it should still be the President who
has the authority to remove, of course subject to
the requirements of due process.
In Pichay vs. Ochoa, the Court ruled that the
President has the power to remove, and the
Office of the President has the authority to
discipline presidential appointees like Pichay,
investigate such officials and to look into
whatever misconduct committed while in office.
While Sec. 21 of RA 6770 declares the OMB’s
disciplinary authority over all govt officials, Sec.
8(2) grants the President’s express power of
removal over a Deputy Omb. & a Special
Prosecutor. Congress had intended the OMB and
the President to exercise concurrent disciplinary
jurisdiction over petitioners as Dep. Omb. &
Special Prosecutor. To shield the Office of OMB
from political influences & discretionary acts of
the executive, Congress imposed 2 restrictions on
such power of removal: 1) must be for any of
grounds provided for removal of Ombudsman &
2) there must be observance of due process
(Gonzales vs. Office of Pres., 9/4/12).
The case of Gonzales vs. OP, issue is whether
Office of the President has the power to conduct
administrative investigation against Gonzales.
Under Sec. 21 of the Ombudsman Act, the
disciplinary authority of Ombudsman applies to all
officials. But under Sec. 8(2), it grants the express
authority to the President the power to remove a
Deputy Ombudsman and a Special Prosecutor.
Because the Court in this case ruled that Congress
had the intention that it should be case of
concurrent disciplinary authority, meaning, it may
be the Office of the President or the Ombudsman
who has the power to take cognizance of the
administrative action against the Deputy
Ombudsman and the Special Prosecutor under
Sec. 8 (2). But nonetheless there are conditions for
taking cognizance by the Office of the President
of such administrative authority, in order to shield
the office from political influence and
discretionary acts of the executive. Two
limitations: Deputy or Special Prosecutor can only
be removed for any of the grounds provided for
the removal of the Ombudsman. (Treason,
bribery, graft and corruption etc.) The other one,
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there must be of course, observance of due
process.
On MR of the OP, the SC ruled that Sec. 8(2) of RA
6770 granting to the President the power to
remove the Deputy Ombudsman is
unconstitutional. The President does not have
disciplinary authority over the Deputy
Ombudsman as this power is lodged with the
Ombudsman so as not to affect the
independence of the Office of Ombudsman.
However, the President retains disciplinary
authority over the Office of the Special
Prosecutor. The OSP serves as the representative
of the PP in cases filed before the Sandiganbayan
(Gonzales vs. OP, GR 196231, 28 Jan. 2014; Sulit
vs. OP).
Upon filing of the MR of the Office of the
President, this ruling of the Supreme Court was
nullified. The Supreme Court ruled that Sec. 8 of
the Ombudsman Act granting to the President
the power to remove the Deputy Ombudsman is
unconstitutional. In other words Office of the
President does not have the authority to discipline
the Deputy Ombudsman. The authority belongs
to the Ombudsman on the basis of what is
provided under the Constitution. So the President
does not have disciplinary over the Deputy
Ombudsman. This power is conferred to the
Ombudsman in order not to affect the impartiality
and independence of the Office of the
Ombudsman.
But insofar as the authority of the President to
discipline the Special Prosecutor, the Supreme
Court sustained this as valid. The Special
Prosecutor has the same rank of the Deputy, it is
part of the office of the Special Prosecutor. Its
main responsibility is to prosecute cases before
the Sandiganbayan. The reason here is that the
Special Prosecutor serves as the chief
representative of the people in the cases brought
before the Sandiganbayan.
In the case of Sulit vs. OP, she was the Special
Prosecutor, she was charged by the Office of the
President in connection with her alleged entering
into a Compromise Agreement pertaining to the
Garcia cases.
 2016 Public Officers & Corporation 4th yr Review
Re-election of Elective Official;
Aguinaldo Doctrine (212 SCRA 768)
Long-standing doctrine had held that re-election
absolved an elected official from administrative
penalties for wrongdoing committed during a
previous term. He cannot be removed for
administrative misconduct committed during a
prior term, since his re-election to office operates
as a condonation of the official’s previous
misconduct to the extent of cutting off the right to
remove him therefor.
We’re all familiar with the Aguinaldo Doctrine,
known also as the Doctrine of Forgiveness. The
reelection of the elective official absolves him
from any administrative sanction for whatever
wrongdoing committed during a prior term. So if
he gets reelected to the same elective position.
Example, he committed the wrongdoing as the
Mayor. For this doctrine to apply he msut be
elected into the same position of Mayor. Under
this principle he cannot anymore be removed for
administrative misfeasance because his election
into office operates as a condonation of the
previous misconduct, cutting off therefore the
right to remove him from such position.
The Aguinaldo Doctrine has already been nullified
by the Supreme Court in Carpio-Morales vs. CA,
November 10, 2015. The condonation doctrine
has been abandoned, but the abandonment
however is prospective in effect. Really, there is
no basis for not sanctioning he elective official just
because he or she gets elected to the same
office. There is no basis. There is no basis
whatsoever for saying that the election of an
official to a new term absolves him or her of any
administrative liability arising from the offense
committed during a previous term and so there
was this motion for clarification filed by the
Ombudsman pertaining to this ruling, because of
the need for the Supreme Court to clarify as to
the meaning of prospective in effect. But you
know the SC simply issued a minute resolution
without anymore discussing anything about the
case.
The condonation doctrine is ABANDONED, but the
abandonment is PROSPECTIVE in effect… no basis
for saying that the election of an official to a new
term fully absolves the official of any
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administrative liability arising from an offense
committed during a prior term (Carpio-Morales
vs. CA, GR 217126-27, 11/10/15). [MR/Clarification
filed by OMB denied with finality on 4/12/16].
From 4/12/16 & onwards, Office of Ombudsman
will no longer apply the doctrine, regardless of
when admin infraction was committed, when
complaint was filed, or when public official was
re-elected.
Meaning, from the time of the finality of this ruling
by the Supreme Court, April 12, 2016, that was the
time issued the minute resolution. Thus from this
time onwards, the Office of the Ombudsman will
no longer apply the doctrine of forgiveness
regardless of when the infraction was committed,
when the complaint was filed, or when the public
official was elected. So regardless of the
circumstances of the case, we will apply this
abandonment of the Aguinaldo Doctrine. We will
no longer apply the Doctrine of Forgiveness.
Aguinaldo is inapplicable to criminal case.
Reelection to the post of Congressman is not a
reasonable classification in criminal enforcement.
His duties as Congressman are not substantial
distinctions w/c lift him from the class of prisoners
interrupted in their freedom (Pp vs. Jalosjos, 324
SCRA 692).
Take note that this has no application to criminal
cases. Of course with more reason because of
the abandonment. So in the case of People vs.
Jalosjos, reelection is not a reasonable
classification in the enforcement of the criminal
justice system. His duties as Congressman are not
substantial distinctions which lift him from the class
of prisoners interrupted in their freedom. Why
should you give a preferential treatment for the
Congressmen?
2 categories of administrative actions against
government employees: a) those related to the
discharge of functions; b) those not so connected
with said functions.
To warrant removal from office of an officer, the
misconduct, misfeasance or malfeasance must
be directly related to discharge of official duties.
 2016 Public Officers & Corporation 4th yr Review
Under the second category, conviction by final
judgment of a crime involving moral turpitude is a
condition precedent.
There are two classes of administrative actions
against public officers: those related to the
discharge of functions and those cases filed
which are not connected with the discharge of
public functions by the officer.
What is the rule here? In order to warrant the
removal or dismissal from service of the official, his
misconduct must be directly connected to the
performance of official duties. Office-related.
Meaning, misconduct must be misconduct in
office.
What about the other category? Those not so
connected. In order for the public officer to be
made administratively liable for offenses
committed by him which have no relation to his
public functions, in order for him to be made
administratively liable there should be conviction
by him by final judgment of a crime involving
moral turpitude. This is a sine qua non condition,
condition precedent before there may be
instituted an administrative action for against that
public officer committing an offense not related
to office. There should be conviction in the
criminal case.
Rule: Where crime is not office related, officer
may not be charged administratively based
thereon until a final judgment of conviction of the
crime involving moral turpitude or disqualification
to hold office.
Exception: Act or offense also constitutes violation
of administrative rules
In grave misconduct, as distinguished from simple
misconduct, the elements of corruption, clear
intent to violate the law or flagrant disregard of
established rule, must be manifest.
Where the offense is not office related, the officer
may not be charged administratively until a final
judgment of a crime involving moral turpitude or
penalty of disqualification. The exception is if the
act of offense also constitutes violation of
administrative rules.
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In corruption however there is a clear and blatant
disregard of law, established rules and
regulations.
Dishonesty need not be duty-connected. The
rationale is if a public officer is dishonest, even if
said defect of character is not office-related, it
affects his right to continue in office.
If respondent is found guilty of 2 or more charges,
the penalty to be imposed should be that
corresponding to most serious charge and the
rest shall be considered aggravating
circumstances.
What about the ground of dishonesty? Dishonesty
need not be office or duty-connected. The
reason for this is if the public official is dishonest,
even if such defect of character is not related, it
affects his right to continue holding public office.
If a public officer is charged with 2 or more
offenses and found guilty of those offenses, what
is the rule? If he is found guilty of two or more
charges, the penalty to be imposed should be
that corresponding to the most serious charge
while the others shall be considered as
aggravating circumstances.
The penalty of dismissal from the service carries
with it forfeiture of retirement benefits and the
perpetual disqualification for reemployment in
the government service.
Despite their dismissal from the service,
government employees are entitled to leave
credits they have earned.
The action dropping the officer from the rolls is
non-disciplinary and does not result in forfeiture of
his benefits nor his disqualification from
re-employment in government (CSC Circular No.
12, s. 1994)
Penalty of dismissal from service carries with it
forfeiture of retirement benefits, perpetual
disqualification from employment in the
government service. This has nothing to do with
leave credits. Even if the public officer has been
dismissed from office he is still entitled to the
monetary value of the leave credit, as these have
already been earned in his favor.
 2016 Public Officers & Corporation 4th yr Review
Under Civil Service Circular No. 12, any action
dropping the officer from the rolls is
non-disciplinary and will not result in the forfeiture
of his benefits. Take note, dropping from the rolls
because of continuous absence of at least one
month, di pa siya nagreport despite notice, so he
can be dropped from the rolls and this is not
disciplinary in nature. So the accessory penalties
do not apply. There is no sanctioned penalty
here. The dropping from the rolls will not result in
the forfeiture of the public officer of his benefits
nor his disqualification. He may later on be still
reemployed in government.
Under Sec. 60 of LGC, the SB has no power to
remove an elective barangay official. Apart from
the Ombudsman, only a proper court may do so.
The Ombudsman’s taking cognizance first of the
complaint excludes the SB from acquiring
jurisdiction of the same (Ombudsman vs.
Rodriguez, 625 SCRA 299).
An elective local official may be removed from
office on the grounds enumerated by order of
proper court.(Sec. 60, LGC)
Take note what is provided under the LGC, Sec.
60. An elective local official may be removed
from office on the grounds enumerated under
Sec. 60 by order of proper court. In other words,
this disciplining authority, the Sanggunian, does
not have the authority to order the removal of the
respondent local elective official. Who has the
power? Only the court and the Office of the
Ombudsman.
The Sangguniang Bayan, in the case of
Ombudsman vs. Rodriguez, has no authority to
remove an elective barangay official. Who has
the power? The Court and the Office of the
Ombudsman. So apart from the Ombudsman
only the Court may remove the local elective
official.
Of course you already know the Doctrine of
Exclusion, whichever authority that takes
cognizance first of the complaint will be to the
exclusion of the other. So if the Ombudsman
already acquires cognizance of the complaint,
this would be to the exclusion of the Sanggunian
from acquiring the same over the administrative
case.
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Impeachable officials under Sec. 2, Art. Xl
The President, the Vice-President, the Members of
the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman
may be removed from office, on impeachment
for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and
corruption, other high crimes or betrayal of public
trust. All other public officers and employees may
be removed from office as provided by law, but
not by impeachment.
Due to the leakage of a draft decision, Justice
Reyes was investigated. It was still in progress
when he retired. Issue is whether the SC has
jurisdiction to subject him to admin action, he
being an impeachable officer who had
compulsorily retired. Once impeachable officer
retires, Court may proceed vs. him & impose the
corresponding sanction for misconduct during his
tenure. SC has power of admin supervision over
members of the bar (Re: Justice Ruben Reyes, 580
SCRA 106).
In the case of Justice Ruben Reyes, the issue here
is whether Justice Reyes may be made
administratively liable considering that he was
made to retire compulsorily. There was this
leakage of a decision and upon investigation this
was attributed to the office of Justice Reyes. But
while the investigation was ongoing, he had to
retire. The Court ruled that once the impeachable
officer retires, the Court may still proceed against
him and impose the corresponding sanctions
against him for whatever misconduct committed
during his tenure. As members of the Bar, the
Supreme Court has authority over the members of
the Integrated Bar. Just like the case of Binay.
Deputy Ombudsman is not an impeachable
officer (Omb vs. Mojica, 452 SCRA 714)
Commissioner Borra, an impeachable officer who
is a member of the Bar, cannot be disbarred
without first being impeached. But since the
grounds for the disbarment complaint vs. Borra
w/c are supposed errors of judgment or grave
abuse of discretion in appreciation of facts, are
proper for an appeal, complainant’s remedy is
judicial (Marcoleta vs. Borra, 582 SCRA 474).
 2016 Public Officers & Corporation 4th yr Review
The determination of what constitutes an
impeachable offense is purely a political question
which the Constitution has left to the discretion of
the legislature. The Court has no jurisdiction
(Francisco vs. NMMP, 425 SCRA 44).
The court in the case of Ombudsman vs. Mojica,
ruled that the Deputy Ombudsman is not an
impeachable official.
In the case of Marcoleta vs. Borra, the Court ruled
that the Commissioner, Borra, an impeachable
officer, who is a member of the bar, cannot be
disbarred without first being impeached. There
must be impeachment before there may be a
case of disbarment case against him. But the
court ruled that there is no need to go through this
process. No need to file disbarment case
because the grounds relied upon in instituting the
case against Borra, are mere errors of judgment
or alleged commission of grave abuse of
discretion in his appreciation of facts of the case,
and so these are grounds proper for an appeal,
so remedy here is judicial.
In Francisco vs. NMMP, the Court ruled that the
determination of what constitutes an
impeachable offense is purely a political issue,
which must be left to the judgment of Congress.
The Court has no authority to determine what
constitutes an impeachable offense.
Just for your information, in the impeachment trial
of Justice Corona, he was accused of not
declaring properties in the SALN in violation of the
Anti-Graft and Corrupt Practices Act, the Senate,
acting as an impeachment court, found him
guilty of excluding substantial assets, peso and
foreign currency accounts from his sworn SALN,
constitutes culpable violation.
There’s another mode of termination affecting
public officials, recall.
Recall under Sections 69 - 74, LGC
Recall: formal withdrawal by electorate of their
trust in elective official’s ability to discharge his
office.
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Loss of confidence as ground is a political
question. There is no need to bring up any charge
of abuse or corruption (Evardone vs. Comelec,
204 SCRA 464).
No recall shall take place within 1 yr. from date of
official’s assumption to office or 1 year
immediately preceding a regular local election
(Sec. 74 RA 7160)
The sole issue here, loss of confidence, it’s a
political issue. No need to bring up any charge of
malfeasance, misfeasance or abuse or
corruption. The case of Evardone vs. Comelec.
Under the LGC, Section 74, no recall shall take
place within 1 yr. from date of official’s
assumption to office or 1 year immediately
preceding a regular local election, this can only
be initiated during the second year of office.
2 kinds of preventive suspension
Teachers were either dismissed or suspended for
strike activities but eventually exonerated of the
original charges and found guilty only of violation
of reasonable office rules by failing to file leave
application are entitled to back salaries for
period of preventive suspension pending appeal
(Gloria vs. CA, 306 SCRA 287; ’01BQ)
Two kinds: preventive suspension pending
investigation, and preventive suspension pending
appeal.
The first kind, preventive suspension pending
investigation – it is not a penalty but simply a
measure to ensure the conduct of an impartial
proceedings, to prevent possible harassment
considering that the respondent may wield a
position of power or influence; the need therefore
to protect the integrity of the proceedings and
the records of the parties to the case.
Whereas the other one, preventive suspension
pending appeal, whenever there is already a
penalty imposed after the observance of the
requirements of due process, and such penalty is
the subject of an appeal, and so pending
determination of the appeal, it will be considered
as preventive suspension pending appeal. In
event he wins on appeal, this will no longer be
considered a penalty and therefore the
respondent who brings such appeal has the right
 2016 Public Officers & Corporation 4th yr Review
to recover the salaries and emoluments during
the period of preventive suspension pending
appeal. But not such salaries during the period of
preventive suspension pending investigation.
But of course in the latter case, this applies to the
case of appointive officers, because as applied
to elective officials under the provisions of the
LGC, there can still be recovery of the salaries
that were not given to the respondent elective
official during this period of preventive suspension
pending investigation.
In the case of Gloria vs. CA, there were so many
public school teachers who were charged
administratively, and after their proceedings they
were either dismissed or suspended because
strike activities but on appeal they were
exonerated and they were only found guilty of a
violation of office rules. May there be recovery of
back-salaries during this period of preventive
suspension pending appeal? Yes. Because they
were exonerated.
Modification on appeal by CA of penalty of
dismissal from service for gross neglect to 3
months suspension, as imposed by DOTC and
CSC, for simple neglect is not exoneration.
Rabang is entitled to reinstatement but not the
payment of backwages during the time he was
considered to be on preventive suspension
pending appeal (CSC vs. Rabang, 14 March ’08).
This Gloria case should be distinguished from the
case of CSC vs. Rabang. This employee of DOTC
after the proceedings by the CSC and later on by
the Commission on appeal was found guilty of
gross neglect and dismissed from the service, but
when he raised the matter on appeal to the CA,
the decision was modified. So instead of gross
neglect, he was found guilty of simple neglect
and so suspended only for 3 months. Is he entitled
to the payment of backwages during the period
of this preventive suspension pending appeal?
There is no question that he is entitled to be
reinstated. But he cannot recover back wages
because clearly he was not exonerated. He was
found guilty. He should not be paid backwages
during the period of his preventive suspension
pending appeal.
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The Ombudsman or his Deputy may preventively
suspend for not more than 6 months … (Sec. 24
RA 6770)
Any public officer vs. whom any criminal
prosecution under a valid information under RA
3019 or xxx of RPC on bribery is pending in court
shall be suspended from office (Sec. 13 RA 3019)
Cases:
*Deloso vs. Sandiganbayan, 173 SCRA 409
*Berona vs. Sandiganbayan, 435 SCRA 306
Now take note under the Ombudsman Act,
maximum period for preventive suspension is 6
months, whereas under the CSC Law, 90 days.
Under the LGC, it is only up to 60 days. There’s also
the corresponding concept of preventive
suspension pendente lite in criminal cases filed
before the court. What is the basis? Section 13 of
the Anti-Graft and Corrupt Practices Act. Any
public officer against any criminal prosecution
under the provisions of the Anti-Graft and Corrupt
Practices Act or under the provisions of bribery of
Offenses committed by public officers under the
Revised Penal Code, can be suspended from
office. Pendente Lite.
Who issues the preventive suspension in the
criminal case? Of course the court. The maximum
period applying provisions in CSC, therefore 90
days.
In the case of Deloso vs. SB, does it matter that at
the time the case was filed before the court, the
public official accused is no longer holding the
same elective position? In Deloso he was
charged in his capacity as Municipal Mayor. But
when the case was filed against him before the
Sandiganbayan, he was already holding the
position of Governor. The Supreme Court ruled,
still, Section 13 makes no distinction. He should be
placed under preventive suspension regardless of
the public office he is occupying.
The same rule in the case of Berona vs.
Sandiganbayan. He was charged before the
Ombudsman, holding the position of Provincial
Health Officer of the province of Abra, but when
the case was filed against him by the
Sandiganbayan he already became the
Municipal Mayor of the municipality of Pilar, Abra.
 2016 Public Officers & Corporation 4th yr Review
The Court ruled that he can still be preventively
suspended.
Pre-suspension hearing is required to determine
the validity of the information so the court can
have basis to either suspend the accused &
proceed w/trial on the merits of the case , or
withhold the suspension & dismiss the case, or
correct any part of the proceedings that impairs
its validity. Once the information is properly
determined to be valid, it becomes the ministerial
duty of the court to forthwith issue the order of
preventive suspension (Talaga vs.
Sandiganbayan, 570 SCRA 622).
In Talaga vs. Sandiganbayan, it is required that
there should be pre-suspension hearing in order
for the Court to determine the validity of the
information for it to have basis to either suspend
the accused and proceed with trial on the merits
of the case or withhold the suspension of the
public officer pendente lite, dismiss the case, or
direct any portion of the proceedings that impairs
the validity. Once the info has been determined
to be valid, that it charges the proper offense
because of investigation already conducted, it
becomes the ministerial duty of the court to issue
immediately the order of suspension pendente
lite.
A preventive suspension under Sec. 13 is
mandatory after determination of the validity of
information. Here, while there was no
pre-suspension hearing held to determine the
validity of the informations filed vs. petitioners, the
numerous pleadings filed for & against them have
achieved the goal of this procedure. The right to
due process is satisfied not just by an oral
hearing but by the filing & the consideration by
the court of the parties’ pleadings, memoranda
and other position papers (Juan vs. Pp., 322 SCRA
126).
This concept of pre-suspension hearing should
always be *** by presentation of evidence. The
Supreme Court in the case of Juan vs. People,
while there was no pre-suspension hearing in this
case conducted to determine the validity of the
information, nonetheless there were so many
pleadings filed by the parties, and this already is
substantial compliance, this already achieves the
goal of allowing the Court to have basis to
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decide to issue whether to order preventive
suspension. In other words, there was no denial of
due process, the right to due process has been
satisfied by the filing by the parties of their
pleadings, memoranda and position papers. It is
not simply by oral hearing.
The suspension (not > 60 days) in Art. Vl, Sec. 16 of
Const on authority of each House to punish its
members is a punishment imposed by it and is
distinct from the suspension under Sec. 13 of RA
3019 [Santiago vs. Sandiganbayan, 356 SCRA 637
(’02BQ)]
The falsification of DTR constitutes fraud involving
public funds (Flores vs. Layosa, 436 SCRA 339)
The unlawful & unauthorized use of govt property
by public officers constitute fraud. Thus, prev.
suspension in RA 3019 applies to them (Juan vs.
Pp.)
In the case of Santiago vs. Sandiganbayan, at the
time she was charged was in her capacity as
Commissioner of the Bureau of Immigration, she
raised the defense that the Sandiganbayan does
not have the authority to issue preventive
suspension against her, only the senate because
at the time the case was filed she was already
Senator, applying Article 6, Section 16 of the
Constitution. Here, the Supreme Court ruled that
the suspension in the Constitution refers to the
authority of Congress to punish administratively its
members. This is separate and distinct from the
suspension provided in the Anti-Graft and Corrupt
Practices Act.
In Flores vs. Leosa, the Court ruled that the
falsification by a public officer of the daily time
records, constitutes fraud involving public policy,
and so is proper legal basis for the issuance of
suspension pendente lite.
Going back to the Juan vs. People case, the
Supreme Court ruled that unlawful, unauthorized
use of government property—a radio transceiver
used by a barangay official—the Supreme Court
ruled that is proper basis for the issuance of
preventive suspension.
Rights, Duties & Privileges
 2016 Public Officers & Corporation 4th yr Review
Salary of public officer, before being paid to him,
is not subject to garnishment or assignment.
Agreement affecting compensation is vs. public
policy
No elective or appointive public officer shall
receive additional or double compensation
unless specifically authorized by law. (Sec. 8, Art.
lX B)
Pensions or gratuities are not considered as
additional, double or indirect compensation (Sec.
8 par. 2, Art. lX B). Such grant is an act of liberality
& not a salary.
We know the rule that the compensation of a
public official before being paid to him cannot
be subject to garnishment as this will run counter
to public policy.
Take note what’s provided under Section 8,
Article IX-B of the Constitution, no elective or
appointive public officer shall receive additional
or double compensation unless specifically
authorized by law, and we also have the other
part, the second paragraph pensions or gratuities
are not considered as additional, double or
indirect compensation. Because pension is an act
of liberality from the government.
We have so many cases here that have been
asked in the bar, the case of Romana Cruz vs.
Tantuico it has been asked twice in the bar.
There is no double compensation where the
officials of the Bangko Sentral, on bases of
Monetary Board resolutions, are granted
additional monthly RATA as members of the
Board of Directors of Phil. International
Convention Center Inc. (PICCI). RATA is intended
to defray representation & transp. expenses.
Aside from their RATA from the BSP, petitioners
can receive RATA for board meetings attended in
their capacity as members of the Board of
Directors of PICCI, in addition to their per diem
(Singson et al. vs. COA, 09 August 2010).
In the case of Singson, there’s no double
compensation in violation of the Constitution
when the officials of the Central Bank on the basis
of resolutions passed by the Monetary Board, are
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given monthly RATA, as members of the Board of
Directors of the Philippine International
Convention Center apart from the RATA they’re
receiving from the Bangko Sentral ng Pilipinas.
Aside from the RATA granting Bangko Sentral,
petitioners can receive RATA for board meetings
attended in their capacity as members of the
board of directors of the PICC.
Retirement pay may not be applied to
indebtedness to the government (Romana Cruz
vs. Tantuico, 166 SCRA 671; Tantuico vs. Domingo,
230 SCRA 391)
On basis of Auditor’s finding of cash shortage vs.
petitioner mun. treasurer, COA can direct the
withholding of her salary & other emoluments,
under Sec. 21, Bk. V, EO 292 w/c is the same as
Sec. 37 of PD 1445, pending litigation of her
liability (Santiago vs. COA, 537 SCRA 740).
Of course, Romana Cruz vs. Tantuico, the
retirement pay was withheld because there was
fraudulent payment of treasury warrants to
fictitious persons, but I think she was not
responsible for that, there was no formal case
against here, and so the retirement pay of
Romana Cruz cannot be made to apply to the
indebtedness to the government
In Santiago vs. COA, the Court ruled that the
Auditor on the basis of a finding of cash shortage
against a public officer can order the withholding
of the salaries and other benefits, emoluments of
the public officer who upon holding is found to
have incurred shortages, not for the purpose of
applying his alleged shortage, because this has
yet to be determined pending litigation, but only
to make sure that government is protected.
Right to self-organization
The right to self-organization shall not be denied
to government employees [Art. lXB, Sec. 2(5)];
right of the people xxx to form unions or
associations not contrary to law , shall not be
abridged [Art.lllSec.8]; state shall guarantee rights
of workers xxx [Art.Xlll, Sec.3]
Since terms & conditions of employment in
government are governed by law, employees
 2016 Public Officers & Corporation 4th yr Review
therein shall not strike for purposes of securing
changes (Arizala vs. CA, 14 Sept. ’90).
Government employees do not have right to
strike (SSS vs. CA, 175 SCRA 686; Manila PSTA vs.
Educ. Sec., 200 SCRA 323; Gesite vs. CA, 444
SCRA 52)
Of course we know that the Constitution itself
provides for protection of government workers.
The right to self-organization shall not be denied
to government employees, including those in the
public and private sectors to form unions or
associations, not contrary to law shall not be
abridged, the state shall guarantee the rights of
workers to form unions, the State shall protect the
right of workers to collective bargaining, of course
subject to law.
In the case of Arizala vs. CA, since the terms and
conditions of government employment are
provided by law—Civil Service Law, the Revised
Administrative Code—the employees therefore in
the public sector shall not strike for purposes of
securing changes, unless there is a clear provision
of law granting them that right. But in the
absence of law, the terms and conditions of
employment are provided by the Civil Service
Law and the Revised Administrative Code. So
many cases, government employees do not have
the right to strike.
Exercise of teachers’ rights to peaceably
assemble and petition for redress of grievances
must be w/in reasonable limits and without
stoppage of classes. Their absence results in the
non-holding of classes and in the deprivation of
students of education, for which they may be
penalized for conduct prejudicial to the best
interest of service (Bangalisan vs. CA, 276 SCRA
619; Alipat vs. CA, 308 SCRA 781; Dela Cruz vs.
CA, 305 SCRA 303)
What are excluded from negotiation by
government employees?
In Bangalisan vs. CA, the issue here is whether or
not the rights of public teaches who want to
strike, to peaceably assemble and petition for
redress to grievances, were violated, because
they were sanctioned. They were charged
administratively and they were sanctioned, and
they claimed that there was a violation of their
right under the Constitution to peaceably
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assemble and petition for redress to grievances.
These rights guaranteed under the Constitution
ought to be exercised within reasonable limits
and in no case should there be prejudice to the
students. This should be resorted to without
stoppage of classes. They can do so after office
hours, after classes, during holidays, weekdays,
and no government office may hold them, not
even the Court. But here, because of their
stoppage of classes, their absence results in
non-holding of classes, depriving the students of
their right to education, for which the public
school teachers ought to be penalized, for
conduct prejudicial to the best interest of the
students.
What are excluded from negotiation?
1. The terms and conditions of employment
because these are provided by existing
law.
2. Those matters that require appropriation
of public funds
3. Matters that require the exercise of
management prerogative.
For example, in terms of promotion, assignment,
etc.
Public Wealth of Officers
Bases of Lifestyle Check:
Concept of Public Accountability (Sec. 1 Art. Xl
Constitution)
If a public officer is found to have acquired during
his incumbency property or money manifestly out
of proportion to his salary & other lawful
income…[admin suspension for indefinite period
until completion of investigation](Sec. 8 RA 3019
in re to RA 1379)
Norm of simple living: Public officers & their
families shall lead modest lives appropriate to
their position and income; avoid extravagant
display of wealth (Sec. 4(h), RA 6713)
It’s been asked in the bar. The lifestyle check,
unexplained wealth of public officers. What are
the bases for the conduct of lifestyle check of the
government. Of course, under the Constitution,
 2016 Public Officers & Corporation 4th yr Review
the dogma of public accountability, public office
being one of public trust. Under Section 8 of the
Anti-Graft and Corrupt Practices Act, if a public
officer has been found to have acquired during
his incumbency, property or money manifestly out
of proportion to his salary & other lawful income,
such shall be a ground for preventive suspension.
Take note, as a general rule, the suspension is for
a limited period, 60 days, 90 days, 6 months, this
one, this section, administrative suspension for an
indefinite period until completion of the
investigation, lifestyle check, if he’s found to
acquire property or money out of proportion to his
lawful compensation and other legitimate
sources of income.
The other basis, under the Code of Conduct and
Ethical Standards, simple living.
Sec. 8 of RA 3019 is intended to amend Sec. 2 of
RA 1405 (Secrecy of Bank Deposits Law) by
providing an additional exception to the rule vs.
disclosure of bank deposits. Thus, properties in the
name of spouse/unmarried children of public
official xxx may be looked into (BF vs. Purisima,
161 SCRA 576).
Exceptions to RA 1405: 1) depositor consents in
writing; 2) impeachment; 3) court order in bribery
cases; 4) deposits is subject of litigation; 5) Sec. 8
of RA 3019 in unexplained wealth cases
But see Marquez vs. Desierto, 359 SCRA 773
The case of Banco Filipino vs. Purisima. Take note,
there’s this Secrecy of Bank Deposits Law. Section
2 provides for the confidentiality of bank deposits.
Republic Act 1405.
Section 8 of R.A. 3019 or the Anti-Graft law, is
intended to amend Section 2 by giving additional
exemption. The rule here is prohibition against
disclosure of bank deposits. What is the exception
to this rule? In criminal cases of unexplained
wealth. Thus properties of the spouse, unmarried
children, of the public official may be looked into.
The case of Banco Filipino vs. Purisima. A Bureau
of Customs employee was investigated for
alleged unexplained wealth by the then
Tanodbayan, then predecessor of the
Ombudsman.
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What are the other exceptions to this Secrecy of
Bank Deposits Law?
1. If the depositor gives out his written
consent to the disclosure
2. In cases of impeachment
3. In bribery cases
4. Deposits of the public officer if the subject
of litigation
But in the case of Marquez vs. Desierto where the
Ombudsman conducted an investigation against
the alleged unexplained wealth of several
respondents, Lagdameo et. al, the Supreme
Court ruled that the order of the Ombudsman or
instruction in camara of the deposits of these
subjects is in fact a fishing expedition. So this is
unconstitutional.
In order for the bank to allow such disclosure,
there should be a case already filed in court or
the deposit must be specifically identified.
Sec. 8 R.A. 6426
Except with written permission of the depositor, “
in no instance shall FCDs be examined, inquired
or looked into by any person, government official,
bureau or office whether judicial or administrative
or legislative or any other entity whether public or
private.”
Still, the constitutional principle of public
accountability overrides the absolute
confidentiality of foreign currency deposits.
Just for your other information, we also have this
Foreign Currency Act, R.A. 6426, take note of the
absolute confidentiality of foreign accounts,
except with written permission of the depositor, in
no instance can foreign currency deposits be
examined or looked into by any government
official, bureau or office, whether judicial,
administrative or legislative.
Liability of Head of Office
The agency head is immediately & primarily
responsible for all government funds & property
pertaining to his agency (Sec. 102 PD 1405)
That the head of office is the final approving
authority of the questionable transaction does not
 2016 Public Officers & Corporation 4th yr Review
necessarily make him the party ultimately liable
in case of disallowance (Albert vs. Gangan, 353
SCRA 680).
What is the liability of the head of Office? Under
the Government Auditing Code, PD 1405, Section
102 provides that the head of the agency is
immediately and primarily responsible for all
government funds & property pertaining to his
agency.
In Albert vs. Gangan, even if the head of office is
the final approving authority of the dubious or
questionable transaction, it does not necessarily
make him the party ultimately liable in case of
disallowance of such transaction or amount by
proper authority by the COA. In this case it was
shown that he should not be liable as the head.
He should not be made liable because he
immediately conducted investigation into the
alleged anomaly of his subordinates even if he
was the final approving authority of the
questionable transaction. He reported this
transaction to the COA.
Mistakes committed by public officers are not
actionable, absent a clear showing that he was
motivated by malice or gross negligence
amounting to bad faith. Bad faith does not simply
connote bad judgment or negligence. Rather,
there must be dishonest purpose or some moral
obliquity & conscious doing of a wrong, a breach
of a sworn duty thru motive or intent or ill will. It
partakes of the nature of fraud & a state of mind
operating w/ furtive design or some motive of
self-interest for ulterior purposes (Pres. Ad Hoc FF
Committee vs. Desierto, GR 145184, 3/14/08).
In Presidential Ad Hoc committee vs. Desierto,
take note that mistakes committed by public
officers are not actionable in the absence of
showing that the public officer was motivated by
malice, he was in bad faith, he was grossly
negligent. In the absence of these circumstances,
the public officer should not be made responsible
for such mistake.
There must be a showing of dishonesty, a
dishonest purpose, some moral or conscious
wrongdoing, a breach of a sworn duty, ill will or ill
motive or intent.
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Determination of Liability of Approving Officer
Heads have to rely on their subordinates and on
good faith of those who prepared documents. He
cannot be swept into a conspiracy conviction
simply because he did not personally examine
every single detail (Arias vs. Sandiganbayan, 180
SCRA 309).
Arias doctrine does not apply when the
approving officer is not acting as head of office
(Leycano vs. COA, GR 154665, 02/10/2006).
The important case of Arias vs. Sandiganbayan.
That’s why we have the Arias Doctrine. The heads
of office have to rely on their subordinates and in
good faith on those who prepare documents. The
head of office cannot be swept into a conspiracy
conviction just because he was not able to
personally examine, because really, this is quite
impossible for the head to scrutinize every
document he signs. He signs thousands of
documents a day. The head of office has to rely
on his subordinates and on their good faith those
who prepare the documents, process papers,
records, etc.
But take note, the Arias doctrine does not apply
when the approving officer is not acting as Head
of Office.
Exception to the Arias Doctrine
There exists an exceptional circumstance which
should have prodded petitioner and be on his
guard, if he were out to protect the interest of the
municipality he swore to serve, to be curious and
go beyond what his subordinates prepared or
recommended (Cruz vs. Sandiganbayan, GR
134493, 09/16/2005).
Exception to the Arias Doctrine, Cruz vs.
Sandiganbayan. Where the head of office
encounters signs, red lights, that should have
prodded him to be on guard in order to protect
the interest of the government, he should
scrutinize the transaction. There exists an
exceptional circumstance which should have
prodded the petitioner to be on his guard in order
to protect the municipality he swore to serve, to
be curious and go beyond what his subordinates
prepared or recommended.
 2016 Public Officers & Corporation 4th yr Review
Pag dumating sa kanya, kita niya kulang ang
papeles, there was no resolution passed by the
Park, Means and Ways Committee, that should
be a red light for him to be on guard. So the
exception to the Arias doctrine. He should still
exercise due diligence.
In the absence of substantial evidence of gross
neglect of petitioner, administrative liability could
not be based on the principle of command
responsibility. Under the RAC, a head of dept or
superior officer shall not be civilly liable for the
wrongful acts, negligence or misfeasance of his
subordinates unless he has authorized such acts.
Just because he signed the ECC, he could not be
made administratively liable without proof of
actual act or omission constituting neglect of duty
(Principe vs. OMB, 374 SCRA 460).
In the case of Principe vs. Ombudsman, you recall
the case of the Cherry Hills subdivision, daming
casualties doon. What happened was there were
several officials of the DENR who were charged
administratively before the Ombudsman. After
the proceedings the Director of DENR Principe
was dismissed from service, because he was the
one who signed the Environmental Clearance
Certificate. So he went to the Court and the
decision of the Ombudsman was reversed. The
Court ruled that in the absence of substantial
evidence of gross neglect of petitioner,
administrative liability could not be based on the
principle of command responsibility. Under the
RAC, the head of office or superior officer cannot
be made civilly liable for the wrongful acts,
negligence, wrongdoing or misfeasance of his
subordinates unless there is written authority he
made, or he authorized such acts.
In this case of Principe just because he signed the
Environmental Clearance Certificate, he could
not be made administratively liable unless there is
proof of actual act or omission that would
constitute neglect of duty.
Later on it was shown that he was not the officer
responsible for monitoring the housing
development project, it was some other officer.
So the Supreme Court set aside the dismissal of
Principe.
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As a rule, a public official may not recover
damages for charges of falsehood related to his
official conduct unless he proves that the
statement was with actual malice. The test for
actual malice is – with knowledge that it was false
or w/reckless disregard of whether it was false or
not. RD Larin is entitled to award of moral &
exemplary damages as he suffered anxiety &
humiliation (Banas vs. CA, 325 SCRA 263). Grant
should be w/caution, lest citizens will hesitate to
expose corruption for fear of suits from vindictive
officials.
In Banas vs. CA, as a rule, the public officer
cannot recover damages for charges of false suit
pertaining to his official conduct maliciously
maligned. For example a public officer is
maliciously maligned, may there be recovery of
damages? As a rule, you should not be allowed
recovery for damages unless he is able to show
that there was actual malice. What is the test?
The test is that statement made against his person
was with knowledge that it was false or in reckless
disregard of whether it was false or not.
In this case Banas the taxpayer filed extortion
charges against Regional Director Larin. But this
came after Larin had filed tax evasion cases
against Banas and he was not able to show any
evidence of the alleged extortion committed by
Larin, and so the court allowed the payment of
moral and exemplary damages Larin suffered
from anxiety and humiliation. Of course this should
be given with caution otherwise you will be
discouraging citizens from exposing corruption
because of fear that these public officials will be
vindictive and will file cases against these
reporters.
‘State immunity from suit’ doctrine applies to
complaints vs. officials for acts in performance of
their duties. The rule is that the suit will be
regarded as one vs. the state where any
judgment vs. the public officer will require the
state to pay judgment award. The rule is not
applicable if the public official is charged in his
official capacity for acts that are unlawful or
injurious to others, or he is sued in his personal
capacity (Lansang vs. CA, 23 Feb. ’00).
This has been asked many times in the bar,
Lansang vs. CA. You know, the concept of state
 2016 Public Officers & Corporation 4th yr Review
immunity from suit. Is this applicable to public
officials? Yes this principle state immunity also
applies to complaints against public officials for
the discharge of official acts, for acts they
perform officially. The rule is the suit may be
regarded as one against the state where any
judgment against the public official will require
the government to pay a judgment award. But
again, this doctrine of immunity from suit does not
apply if the official is being charged in his
personal capacity or even if so judged in his
official capacity, his acts are unlawful or injurious
to others.
Disabilities & Inhibitions of Public Officers
Under ’87 Constitution
Senator or Congressman cannot hold any other
office in government, including GOCCs or
subsidiaries during his term without forfeiting his
seat (Incompatible Office).He cannot be
appointed to any office w/c may have been
created or emoluments thereof increased during
the term for which he was elected (Forbidden
Office) [Sec. 13 Art. Vl]
Of course take note of the important
constitutional provisions under Article VI Section
13, the concept of incompatible office as
distinguished from forbidden office. The first one,
the Senator or Congressman cannot hold any
other office unless he forfeits his seat,
incompatibility. The second classification, even if
the public officer renounces the first office, he
cannot still occupy the second position if the
office was created or the emoluments thereof
increased during the term for which he was
elected. This is the case of forbidden office.
No elective official shall be eligible for
appointment or designation to any public office
during his tenure (ex. Flores vs. Drilon 23 SCRA 568
re case of Gordon as SBMA Chairman & Mayor of
Olongapo City under the Bases Conversion &
Development Act).
Unless otherwise allowed by law or by the primary
functions of his position, no appointive officer
shall hold any other office in government,
including GOCCs or their subsidiaries [Sec. 7 (2)
Art. lX-B].
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This has been asked in the bar, the case of Flores
vs. Drilon, applying Article IX-B, Section 7 (1). So
the basis of the Bases Conversion and
Development Act, the Mayor of Olongapo that
time, Gordon, was made the Chairman of the
SBMA at that time, the Supreme Court ruled that
this is violative of the Constitution, unless of course
he renounces, he gives up his elective position.
In the case of appointive officers, unless otherwise
allowed by law or by the primary functions of his
office, he is not allowed to hold any other office in
government, unless there is a law authorizing him
or by the primary functions of his position.
The private practice of law by respondent and his
acceptance of employment as PLEB member of
Q.C., while being employed as Legal Officer of
the Manila Urban Settlement Office, constitute a
violation of Sec. 7, Art. lX-B Constitution, EO 292
and RA 7160, thus suspended for 6 months by SC.
However his appointment as Lupon
Tagapamayapa member, as well as his receipt of
honorarium, is lawful under Sec. 406 of LGC
(Lorenzana vs. Fajardo, 462 SCRA 1).
The case of Lorenzana vs. Fajardo, Atty. Fajardo,
connected with a government office, Manila
Urban Settlement Office, he engaged in the
private practice of the law profession—meron
siyang law office—and he accepted
employment as a member of the People’s Law
Enforcement Board of Quezon City. Apart from
that, he also became a member of the Lupong
Tagapamayapa. Daming raket.
Take note we mentioned earlier the exceptions in
the case of appointive officers: if allowed by law
or by the primary functions of his office. The
Supreme Court ruled in this case, of course there
was no authority given to him, under aid of law, to
accept employment as member of the PLEB.
Hence he should be made liable. The private
practice of law by Atty. Fajardo and his
acceptance of employment as a member of
PLEB, while being a government lawyer,
constitute a violation of Section 7 Article IX-B of
the Constitution, as well as the provisions of the
LGC and the Revised Administrative Code.
But his being a member of the Lupong
Tagapamayapa is allowed. Under what legal
 2016 Public Officers & Corporation 4th yr Review
basis? Section 426 of the Local Government
Code. An employee whether public or private
may accept appointment as a member of
Lupong Tagapamayapa. By the same provision,
he is authorized to receive whatever pay or
honorarium.
The President, VP, the members of the Cabinet
and their deputies or assistants shall not, unless
otherwise provided in the Constitution, hold any
other office or employment during their tenure…
[Sec. 13, Art. Vll]
Note that the chiefs of bureaus and offices and
their assistants are not included above but are
covered under Art. lX-B, Sec. 7. The exemption is
to give them a chance to engage in some lawful
activity to augment their income. [further note:
subject to requirement of no conflict of interest].
Of course, applied to the members of the
Executive Branch, this is an important provision.
Take note, this is not only for public offices but also
private offices, he is not allowed to hold any other
office or employment during their tenure.
But for those lower-ranked officials, they are not
covered under Article VII Section 13. For example,
the Bureau Head of the LTFRB. They fall not under
Article VII Section 13 but rather under the general
law applicable to other public officers, Article IX-B
Section 7. The Chief of Bureaus, Offices and their
assistants are not included under Article XII
Section 7. So there’s still opportunity given to them
to engage in some lawful activity in order to
augment income, but of course, again, basic
principle, there should be no conflict of interest.
And of course, there should be authority given.
Prohibition vs. holding dual or multiple offices
under Sec. 13 Art. Vll is not applicable to posts
occupied by Executive officials without additional
compensation in an ex-officio capacity as
provided by law and as required by the primary
functions of their office. These posts are an
imposition of additional duties on them (Civil
Liberties vs. Exec. Sec., 22 Feb. ’91).
Of course, Civil Liberties case, the court ruled that
the prohibition against holding dual or multiple
positions under Article VII Section 13 does not
apply to positions occupied by these executive
76 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
officials, department secretaries, and those of
common rank, without compensation in an
ex-officio capacity as provided by law and as
required by the primary functions of their office.
These positions are simply positions of more
functions, additional functions. For example, a
good illustration would be the Finance Secretary,
made a member of some other board by reason
of his office or the Secretary of National Defense
being made a member of the National Security
Council. There is no violation because this is in an
ex-officio capacity required by the primary
functions of his office. But if the other position has
nothing to do with his principal office, there would
be a violation.
Official may hold any other office or employment
only when specifically authorized by Constitution,
to wit:
Vice President as Cabinet Sec. [Sec. 3(2) Art. Vll]
Justice Secretary as ex-officio JBC member (Sec.
8 Art. Vlll)
President as head of economic and planning
agency (Sec. 9 Art. Xll)
The official may hold any other office of
employment when authorized by the
Constitution. What are the instances where there
is no violation as provided by the Constitution.
Leni Robredo being a Cabinet Secretary, Justice
Secretary being an ex-officio member of the
Judicial and Bar Council, and the President as
Head of the economic and planning agency. So
these are the exceptions.
Government lawyers cannot handle private
cases for they are expected to devote full-time to
their work. Here, respondent PAO lawyer handled
private cases & accepted attorney’s fees for w/c
acts he was disbarred from law practice (Ramos
vs. Imbang, 530 SCRA 759).
As an exception, public officer can engage in
private practice under the ff. conditions: 1st, it is
authorized by Constitution or law; 2nd, it will not
conflict with her public functions (Query of Atty.
Buffe, 596 SCRA 379)
 2016 Public Officers & Corporation 4th yr Review
In Ramos vs. Imbang, applying the prohibition
under Code of Conduct and Ethical Standards,
government lawyers cannot handle private cases
because they are expected to devote their full
time to the Court. In this case of Imbang, a PAO
lawyer, he handled private cases, and accepted
attorney’s fees. Note that he was disbarred from
law practice. But of course may exception yan.
In Query of Atty. Buffe (Sir: Uy pagkain), as an
exception, a public officer can engage in private
practice under the following conditions:
authorized by Constitution or law; and of course
such practice will not conflict with her public
functions.
July 19, 2016
PUBLIC CORPORATIONS
Public Corporations: those formed or
organized for the government of a portion of
the State for the accomplishment of parts of
its own public works.
• True test to determine whether a
corporation is public or private is in
the relation of the corporation to the
State. If created by State as its own
agency to help carry out
governmental function, corporation
is public.
• Distinguishing feature from GOCC:
exercised delegated sovereign
powers of government; take charge
of some public or state work, other
than community work, for gen.
welfare.
So, public corporations are those formed or
organized for the government of a portion of the
State for the accomplishment of parts of its own
public works.
So you know the complexities of the state’s
operations and the need therefor to have some
instrumnetality or agency by which public
corporations may be carrried out.
So, the true test to determine whether a
corporation is public or private is in the relation of
the corporation to the State. If it is created by
State as its own agency to help carry out
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governmental function, then corporation is
public.
What distinguishes a public corporation from
GOCC?
Public corporations are given delegated
sovereign powers of government; they take
charge of some public or state work, other than
community work, for general welfare.
Classification of Public Corps.
1. Quasi-Corporations: those created as
agencies of the State for a narrow & limited
purpose. They are not possessed of powers
& liabilities of self-governments.
2. Municipal Corporations: a body politic
and corporate constituted by the
incorporation of the inhabitants for the
purpose of local government thereof. They
are established partly as an agency of the
state to assist in civil government, but chiefly
to regulate & administer the local or internal
affairs.
CLASSIFICATION OF PUBLIC CORPORATIONS:
1. Quasi-Corporations
-those created as agencies of the State
for a narrow & limited purpose.
-they are not possessed of powers &
liabilities of self-governments unlike the
municipal corporation.
2. Municipal Corporations
-this has a dual nature: a body politic and
corporate constituted by the
incorporation of the inhabitants for the
purpose of local government thereof.
-They are established partly as an agency
of the state. So there are 2 objectives:
a. to assist in civil government,
b. chiefly to regulate & administer
the local or internal affairs just like
any private corporations
Municipal Corporations
• Nature and status: They are a
subordinate branch of government
exercising delegated powers of
government; an arm of state
• Elements (legal creation, corporate
 2016 Public Officers & Corporation 4th yr Review
name, inhabitants and territory)
• Purposes
a. to serve as an instrumentality of state
in carrying on functions of government w/c
the state cannot conveniently exercised…
b. to act as an agency of the inhabitants
in the regulation & operation of local affairs.
MUNICIPAL CORPORATIONS
1. Nature and Status
Ø They are a subordinate branch of
government exercising delegated
powers of government; an arm of
state
2. Elements:
a. legal creation
b. corporate name
c. inhabitants
d. territory
3. Purposes:
a. to serve as an instrumentality of
state in carrying on functions of
government which the state
cannot conveniently exercised
b. to act as an agency of the
inhabitants in the regulation &
operation of local affairs
• Dual nature and functions (BQ)
* governmental and private
• Power to create municipal
corporations is essentially legislative.
It is exclusive & practically unlimited,
subject only to constitutional
restrictions. (cf Art X Sec.10)
• When a new LGU is created,
corporate existence commences
upon election & qualification of its
executive and a majority of the
members of its sanggunian, unless
some other time is fixed by law or
ordinance creating it (Sec. 14 RA
7160).
4. Dual nature and functions:
a. Governmental
b. Private
-just like any other private entities,
they can enter into contracts.
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ARTICLE X Section 10. No province, city,
municipality, or barangay may be created,
divided, merged, abolished, or its boundary
substantially altered, except in accordance
with the criteria established in the local
government code and subject to approval
by a majority of the votes cast in a plebiscite
in the political units directly affected.
So the power to create municipal
corporations is essentially legislative. It is
exclusive & practically unlimited, subject
only to constitutional restrictions.
Now there is a law to carry out that
constitutional provision. It is in Sec. 14 of the
LGC:
RA 7160 Section 14. Beginning of Corporate
Existence. - When a new local government
unit is created, its corporate existence shall
commence upon the election and
qualification of its chief executive and a
majority of the members of its sanggunian,
unless some other time is fixed therefor by
the law or ordinance creating it.
Creation of Municipal Corp.
• Sec. 10, Art. X ’87 Constitution (’04
BQ)
• The authority to create, divide,
merge or abolish a barangay, or its
boundary substantially altered,
belongs to the Sangguniang
Panlalawigan or Sangguniang
Panlungsod, and not to the
Sangguniang Bayan, thru passage of
an ordinance, subject to such
limitations & requirements prescribed
in LGC.
The authority to create, divide, merge or
abolish … a province, city, municipality or
other political subdivision belongs to
Congress thru enactment of law. (Sec.6 of
RA 7160)
CREATION OF MUNICIPAL CORPORATIONS
ARTICLE X Section 10. No province, city,
 2016 Public Officers & Corporation 4th yr Review
municipality, or barangay may be created,
divided, merged, abolished, or its boundary
substantially altered, except in accordance
with the criteria established in the local
government code and subject to approval
by a majority of the votes cast in a plebiscite
in the political units directly affected.
RA 7160 Section 6. Authority to Create Local
Government Units. - A local government unit
may be created, divided, merged,
abolished, or its boundaries substantially
altered either by law enacted by Congress
in the case of a province, city, municipality,
or any other political subdivision, or by
ordinance passed by the sangguniang
panlalawigan or sangguniang panlungsod
concerned in the case of a barangay
located within its territorial jurisdiction,
subject to such limitations and requirements
prescribed in this Code.
The authority to create, divide, merge or abolish a
barangay, or its boundary substantially altered,
belongs to the Sangguniang Panlalawigan or
Sangguniang Panlungsod, and not to the
Sangguniang Bayan, thru passage of an
ordinance, subject to such limitations &
requirements prescribed in LGC.
But of course, the authority to create, divide,
merge or abolish … a province, city, municipality
or other political subdivision belongs to Congress
thru enactment of law.
• Limitations prescribed in LGC for
creation of municipal corporation:
*based on verifiable indicators of viability
and projected capacity to provide services,
namely: income, population & land area
(Sec. 7 RA 7160)
• 3 conditions for creation of LGU
*must follow criteria fixed in LGC (or
amendatory law) [ex. 16 cities]
*must not conflict w/ any Constitutional
provision
*must conduct a plebiscite in the
political unit(s) directly affected.
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Now, there are limitations prescribed in LGC for
creation of municipal corporation:
1. Sec. 7 of RA 7160; based on verifiable
indicators of viability and projected
capacity to provide services, namely:
income, population & land area
Section 7. Creation and Conversion. - As a
general rule, the creation of a local
government unit or its conversion from
one level to another level shall be based
on verifiable indicators of viability and
projected capacity to provide services, to
wit:
(a) Income. - It must be sufficient, based
on acceptable standards, to provide for
all essential government facilities and
services and special functions
commensurate with the size of its
population, as expected of the local
government unit concerned;
(b) Population. - It shall be determined as
the total number of inhabitants within the
territorial jurisdiction of the local
government unit concerned; and
(c) Land Area. - It must be contiguous,
unless it comprises two or more islands or
is separated by a local government unit
independent of the others; properly
identified by metes and bounds with
technical descriptions; and sufficient to
provide for such basic services and
facilities to meet the requirements of its
populace.Compliance with the foregoing
indicators shall be attested to by the
Department of Finance (DOF), the
National Statistics Office (NSO), and the
Lands Management Bureau (LMB) of the
Department of Environment and Natural
Resources (DENR).
2. must follow criteria fixed in LGC (or
amendatory law) [ex. 16 cities]
3. must not conflict w/ any Constitutional
provision
 2016 Public Officers & Corporation 4th yr Review
4. must conduct a plebiscite in the political
unit(s) directly affected—not merely on
the proposed area, but the entire political
unit that is directly affected.
Cases
The President has no power to create the
Municipality of Sto. Tomas. Sto. Tomas has
no right to assert, no cause of action, no
corporate existence. Also, settlement of
boundary conflict is administrative in
nature (Kapalong vs. Moya, 166 SCRA 71)
The voters of the whole province have to
participate and give their approval in the
plebiscite, not merely those voters of the
proposed new province of Negros Norte
(Patricio Tan vs. Comelec, 142 SCRA 727).
Kapalong vs. Moya
166 SCRA 71
The President, on the basis of executive order,
created the Municipality of Sto. Tomas. Later on,
the Municipality has boundary conflict with the
adjoining municipality of Kapalong. And so,
Municipality of Sto Tomas filed a case of
collection of the taxes that were collected by
Kapalong and damages and for the court to
determine their conflicting boundaries.
SC ruled that the President has no power to
create the Municipality of Sto. Tomas. Essentially
this power is conferred to the legislature. Sto.
Tomas has no right to assert, no cause of action,
no corporate existence. Also, settlement of
boundary conflict must be governed by LGC,
sections 118 and 119. This is administrative in
nature, not judicial. Of course, if there is
disagreement, an appeal may be taken later on
to the court.
Patricio Tan vs. COMELEC
142 SCRA 727
We have here BP 1885 was passed creating the
province of Negros Norte taken from the Provice
of Negros Occidental. There was plebiscite, but
the plebiscite was limited to the proposed areas
constituting this newly created province of Negros
del Norte.
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The SC ruled that the voters of the whole
province—meaning the registered voters of
Province of Negros Occidental have to
participate and give their approval in the
plebiscite, not merely those voters of the
proposed new province of Negros Norte.
RA 9355 creating Province of Dinagat Islands
(from Prov. of SDN) is unconstitutional for its
failure to comply w/ the territorial and
population criteria prescribed in Sec. 461 of
LGC w/c provides for a land area
requirement of 2,000 sq. km. and a
population of not less than 250,000 as
certified by NSO. The province contains only
a land area of 802.12 sq. km. & population of
106,951 based on NSO 2000 census. Special
census done by Province of SN stating
population of 371,000 was not certified by
NSO. Lack of certification is not cured by
non objection of NSO officials (Navarro vs.
Ermita, 612 SCRA 156).
Navarro vs. Ermita
612 SCRA 156
RA 9355 creating Province of Dinagat Islands
which are taken from Surigao Norte. RA 9355
creating Province of Dinagat Islands (from Prov. of
SDN) is unconstitutional for its failure to comply w/
the territorial and population criteria prescribed in
Sec. 461 of LGC w/c provides for a land area
requirement of 2,000 sq. km. and a population of
not less than 250,000 as certified by NSO. The
province contains only a land area of 802.12 sq.
km. & population of 106,951 based on NSO 2000
census. Special census done by Province of SN
stating population of 371,000 was not certified by
NSO. Lack of certification is not cured by non
objection of NSO officials.
Sec. 19, Art. Vl of RA 9054 (ARMM Organic
Act) delegated to the ARMM Regional
Assembly the power to create provinces,
cities, municipalities and barangays within
the ARMM. Is this provision constitutional?
Yes, insofar as the delegation of the power
to create municipalities & barangays,
provided Sec. 10 Art. X is followed. However,
insofar as it grants to ARMM Regional
Assembly the power to create provinces
and cities, it is against Sec. 5, Art. Vl and
Sec. 20, Art. X of Constitution. The power to
 2016 Public Officers & Corporation 4th yr Review
create a province or city inherently involves
the power to create a legislative district,
which is a power only Congress can
exercise. Hence, the creation of Shariff
Kabunsuan Province is unconstitutional
(Sema vs. Comelec, 16 July ’08)
Sema vs. COMELEC
July 16, 2008
Sec. 19, Art. Vl of RA 9054 (ARMM Organic Act)
delegated to the ARMM Regional Assembly the
power to create provinces, cities, municipalities
and barangays within the ARMM.
Is this provision constitutional?
Yes, insofar as the delegation of the power to
create municipalities & barangays, provided Sec.
10 Art. X is followed. HOWEVER, insofar as it grants
to ARMM Regional Assembly the power to create
provinces and cities, it is against Sec. 5, Art. Vl and
Sec. 20, Art. X of Constitution. The power to create
a province or city inherently involves the power to
create a legislative district, which is a power only
Congress can exercise. Hence, the creation of
Shariff Kabunsuan Province is unconstitutional.
R.A. No. 9371 which increased CDO’s
legislative district from 1 to 2 does not
require ratification in a plebiscite by voters
affected. Art. VI, Sec. 5 and Art. X, Sec. 10
of 1987 Const. are distinct. The latter
expressly requires a plebiscite to carry out
any creation, division, merger, abolition or
alteration of boundary of a local political
subdivision, but the first does not. The
legislative district under Art. VI, Sec. 5, is not
a political subdivision, nor a corporate unit,
through w/c functions of government are
carried out. A legislative district merely
delineates areas occupied by the people
who will choose a representative in their
national affairs (Bagabuyo vs. COMELEC,
573 SCRA 290)
Bagabuyo vs. COMELEC
573 SCRA 290
R.A. No. 9371 increased CDO’s legislative district
from 1 to 2.
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Would this require ratification in a plebiscite by
voters pursuant to Article X Sec. 10 of the
Constitution?
Now, take note of the nature of the legislative
district. R.A. No. 9371 which increased CDO’s
legislative district from 1 to 2 does not require
ratification in a plebiscite by voters affected. Art.
VI, Sec. 5 and Art. X, Sec. 10 of 1987 Const. are
distinct. The latter expressly requires a plebiscite
to carry out any creation, division, merger,
abolition or alteration of boundary of a local
political subdivision, but the first does not. The
legislative district under Art. VI, Sec. 5, is not a
political subdivision, nor a corporate unit, through
w/c functions of government are carried out. A
legislative district merely delineates areas
occupied by the people who will choose a
representative in their national affairs.
The Cordillera Autonomous Region (CAR)
was not abolished with the reduction of its
budgetary allocation. What took place was
only a discontinuance of its programs and
activities (Atitiw vs. Zamora, 471 SCRA 330).
A barangay may officially exist on record
and the fact that nobody resides in the
place does not result in its automatic
cessation as a unit of local government
(Saranggani vs. Comelec, 06/26/00).
Atitiw vs. Zamora
471 SCRA 330
The Cordillera Autonomous Region (CAR) was not
abolished with the reduction of its budgetary
allocation. What took place was only a
discontinuance of its programs and activities.
Saranggani vs. COMELEC
June 26, 2000
A barangay may officially exist on record and the
fact that nobody resides in the place does not
result in its automatic cessation as a unit of local
government.
RA No. 9009 which amended Section 450 of
the LGC increased the annual income
requirement for conversion into a city from
P20 million to P100 million. Five years
later, 16 new cities were created by
 2016 Public Officers & Corporation 4th yr Review
Congress, exempting them from the P100M
income requirement in RA 9009.
Considering Sec. 10, Art. X requiring the LGU
created to be in accord with the criteria
established “in the local government code,
is the exemption valid?
Held: Yes. Consistent with its plenary
legislative power, Congress can impose the
said verifiable criteria of viability which
need not be embodied in the local
government code. Congress can even, after
making a codification, enact an
amendatory law, like in this case. The
passage of amendatory laws is no different
from the enactment of laws. The cityhood
laws specifically exempted the 16 from the
criteria earlier mentioned. (League of Cities
vs. COMELEC, 2/15/11)
League of Cities vs. COMELEC
February 15, 2011
RA No. 9009 which amended Section 450 of the
LGC increased the annual income requirement
for conversion into a city from P20 million to P100
million. Five years later, 16 new cities were
created by Congress, exempting them from the
P100M income requirement in RA 9009.
Considering Sec. 10, Art. X requiring the LGU
created to be in accord with the criteria
established “in the local government code.
Is the exemption valid?
YES. Consistent with its plenary legislative power,
Congress can impose the said verifiable criteria of
viability which need not be embodied in the
local government code. Congress can even,
after making a codification, enact an
amendatory law, like in this case. The passage of
amendatory laws is no different from the
enactment of laws. The cityhood laws specifically
exempted the 16 from the criteria earlier
mentioned.
• IRA is included in the computation of
average annual income of the
municipality for purposes of
conversion (Alvarez vs. Guingona,
01/31/96)
• Territory must be identified by metes
and bounds to reasonably ascertain
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the territorial jurisdiction of newly
created LGU (Mariano vs. Comelec,
01/07/95)
• Settlement of Boundary Dispute
(Secs. 118 & 119, RA 7160, BQ)
[amicable settlement w/in 60 days; it
failed, dispute to be formally tried
w/in 60 days]
Alvarez vs. Guingona
January 31, 1996
Internal Revenue Allotment [IRA] should be
included in the computation of average annual
income of the municipality for purposes of
conversion.
Mariano vs. COMELEC
January 7, 1995
Territory must be identified by metes and bounds
to reasonably ascertain the territorial jurisdiction
of newly created LGU.
SETTLEMENT OF BOUNDARY DISPUTES
`Section 118. Jurisdictional Responsibility for
Settlement of Boundary Dispute. - Boundary
disputes between and among local
government units shall, as much as possible,
be settled amicably. To this end:
(a) Boundary disputes involving two
(2) or more barangays in the
same city or municipality shall
be referred for settlement to the
sangguniang panlungsod or
sangguniang bayan concerned.
(b) Boundary disputes involving two
(2) or more municipalities within the
same province shall be referred for
settlement to the sangguniang
panlalawigan concerned.
(c) Boundary disputes involving
municipalities or component cities of
different provinces shall be jointly
referred for settlement to the
sanggunians of the province
concerned.
(d) Boundary disputes involving a
component city or municipality on
 2016 Public Officers & Corporation 4th yr Review

the one hand and a highly urbanized case may be.

city on the other, or two (2) or more
highly urbanized cities, shall be The law or ordinance abolishing a local
jointly referred for settlement to the government unit shall specify the province,
respective sanggunians of the city, municipality, or barangay with which
parties. the local government unit sought to be
abolished will be incorporated or merged.
(e) In the event the sanggunian fails
to effect an amicable settlement
within sixty (60) days from the date
the dispute was referred thereto, it
De Facto Municipal Corp.
shall issue a certification to that
• Requisites (’04 BQ)
effect. Thereafter, the dispute shall
1. valid law authorizing incorporation;
be formally tried by the sanggunian
2. attempt in good faith to organize
concerned which shall decide the
under it;
issue within sixty (60) days from the
3. colorable compliance with the law;
date of the certification referred to
4. assumption of corporate powers.
above.
• The validity of incorporation and
corporate existence of municipal
Section 119. Appeal. - Within the time and
corporations cannot be attacked
manner prescribed by the Rules of Court,
collaterally, unless the corporation is
any party may elevate the decision of the
an absolute nullity.
sanggunian concerned to the proper
DE FACTO MUNICIPAL CORPORATIONS
Regional Trial Court having jurisdiction over
4 Requirements:
the area in dispute. The Regional Trial Court
1. valid law authorizing incorporation;
shall decide the appeal within one (1) year
2. attempt in good faith to organize under it;
from the filing thereof. Pending final
3. colorable compliance with the law;
resolution of the disputed area prior to the
4. assumption of corporate powers
dispute shall be maintained and continued
for all legal purposes.
The validity of the corporate existence of the
municipal corporations cannot be attacked
A LGU may be abolished when its income,
collaterally, unless the corporation is an absolute
population or land area has been
nullity. It can only be questioned in a petition for
irreversibly reduced to less than the
quo warranto proceedings within 5 years. So, the
minimum standards prescribed for its
validity of incorporation and corporate existence
creation, as certified by the national
of a municipal corporation may be challenged
agencies concerned. The law or ordinance
by the State in a quo warranto proceeding within
abolishing the LGU shall specify the
5 years.
province, city, municipality or barangay
with which the LGU to be abolished will be
• The validity of incorporation and
incorporated or merged (Sec. 9, RA 7160).
corporate existence of a municipal
corporation may be challenged by
Now take note of Sec. 9 of the LGC…
the State in a quo warranto
Section 9. Abolition of Local Government
proceeding within 5 years.
Units. - A local government unit may be
• Though created under EO 353 by
abolished when its income, population, or
Pres. Garcia, the Municipality of San
land area has been irreversibly reduced to
Andres has attained the status of a
less than the minimum standards prescribed
de facto municipal corporation. San
for its creation under Book III of this Code, as
Narciso can no longer questioned it
certified by the national agencies
after 30 years. Also, San Andres was
mentioned in Section 7 hereof to Congress
reclassified 5 years after as a 5th
or to the sangguniang concerned, as the
class municipality under EO 174,

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 2016 Public Officers & Corporation 4th yr Review
having surpassed income
requirement (Municipality of San
Narciso, Quezon vs. Mendez, 239
SCRA 12).
Municipality of San Narciso, Quezon vs. Mendez
239 SCRA 12
President Garcia issued EO 353 in 1959, but it was
only 30 years after that the adjoining municipality
of San Narciso questioned the corporate
existence of San Andres.
Though created under EO 353 by Pres. Garcia,
the Municipality of San Andres has attained the
status of a de facto municipal corporation. San
Narciso can no longer questioned it after 30
years. Also, San Andres was reclassified 5 years
after as a 5th class municipality under EO 174,
having surpassed income requirement and so it is
now a de jure municipality.
• Sinacaban, w/c was created in 1949
by Pres. Quirino under EO 258, has
been conferred de facto status as its
legal existence is recognized.
Jimenez itself entered into an
agreement with Sinacaban settling
their boundary dispute. It is already a
de jure municipal corporation. Sec.
442 of LGC provides that
municipalities existing as of
effectivity of LGC shall continue to
exist and operate (Mun. of Jimenez,
Misamis Occ. vs. Baz, 265 SCRA 183)
• Q. May courts order the dissolution of
municipal corporations?
Municipality of Jimenez, Misamis vs. Baz
265 SCRA 183
Sinacaban, w/c was created in 1949 by Pres.
Quirino under EO 258, has been conferred de
facto status as its legal existence is recognized.
Jimenez itself entered into an agreement with
Sinacaban settling their boundary dispute. It is
already a de jure municipal corporation because
under Sec. 442 of LGC provides that municipalities
existing as of effectivity of LGC shall continue to
exist and operate.
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QUESTION: May courts order the dissolution of
municipal corporations?
NO. The court has no power to dissolve them.
Legislative Control Over
Municipal Corporations (MCs)
• MCs are under control of legislature
subject only to such limitations as
Constitution may impose.
• Limitations on legislative control
*protection of private property; non
impairment of contracts; uniformity of laws
• Legislature has complete control
over property acquired by MC in its
governmental capacity & devoted to
public governmental use; no control
over property acquired by MC in its
private capacity, except thru valid
police power or taking of private
property upon payment of just
compensation.
LEGISLATIVE CONTROL OVER MUNICIPAL
CORPORATIONS
We said earlier that the legislature has the
authority to create MCs. It follows that MCs are
under control of legislature subject only to such
limitations as Constitution may impose such as:
1. protection of private property
Ø we said a while ago that MCs have
2-fold nature, proprietary and
governmental. In the exercise of its
proprietary function, the principle or
protection of private property under
the Constitution must be respected.
2. non impairment of contracts
3. uniformity of laws
Legislature has complete control over property
acquired by MC in its governmental capacity &
devoted to public governmental use; no control
over property acquired by MC in its private
capacity, except thru valid police power or
taking of private property upon payment of just
compensation.
• Legislature has complete control
over public revenue of municipality
except over public funds in w/c
 2016 Public Officers & Corporation 4th yr Review
creditors or LGU have already
acquired vested right.
• Legislature has control over city
streets, hospital and capitol sites etc.
but not over public markets and
cemeteries.
Legislature has complete control over public
revenue of municipality EXCEPT over public funds
in which creditors or LGU have already acquired
vested right on the basis of the passage of the
Sanggunian of the LGU, vested rights have
already been accrued.
Legislature has control over city streets, hospital
and capitol sites, public buildings or hospitals but
not over public markets and cemeteries because
the operation of public markets and cemeteries is
in its proprietary character.
RELATION OF PRESIDENT TO LGUs
Article X Sec. 4 and Sec. 16
Sec. 62 of the LGC
• General supervision (Sec. 4 Art. X and
Sec. 16 Art. X, Constitution)
~ensure that the acts of their component
units are within the scope of their prescribed
powers & functions.
~ensure that laws are faithfully executed.
• No investigation shall be held within 90
days immediately prior to any local
election and no preventive suspension
imposed w/in said period (Sec. 62).
The office of the president has general supervision
over provinces, cities and barangays.
If there is failure by the local government units or
their local chief executives, an investigation can
be conducted.
Take note, however, that this refers to
administrative proceedings based on the Local
Government Code meaning the case is filed
before the sanggunian or before the Office of the
President. This has no application if the case is
filed before the Office of the Ombudsman.
ARTICLE X
LOCAL GOVERNMENT
GENERAL PROVISIONS
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Section 4. The President of the Philippines
shall exercise general supervision over local
governments. Provinces with respect to
component cities and municipalities, and
cities and municipalities with respect to
component barangays, shall ensure that the
acts of their component units are within the
scope of their prescribed powers and
functions.
AUTONOMOUS REGIONS
Section 16. The President shall exercise
general supervision over autonomous
regions to ensure that laws are faithfully
executed
GROUNDS FOR DISCIPLINARY ACTION
Sec. 60 of LGC
• Disloyalty to the Republic
• Culpable violation of the Constitution
• Dishonesty, oppression, misconduct in
office, gross negligence or dereliction of
duty
• Commission of any offense involving
moral turpitude or an offense punishable
by at least prision mayor
• Abuse of authority
• Unauthorized absence for 15 consecutive
working days, except Sanggunian
members
• Application for or acquisition of foreign
citizenship
• Such other grounds… as provided in the
LGC AND other laws
DCDCAUAS
Such other grounds… as provided in the
LGC AND other laws
CHAPTER IV
Disciplinary Actions
Section 60. Grounds for Disciplinary Actions. -
An elective local official may be disciplined,
suspended, or removed from office on any
of the following grounds:
(a) Disloyalty to the Republic of the
Philippines;
 2016 Public Officers & Corporation 4th yr Review
(b) Culpable violation of the
Constitution;
(c) Dishonesty, oppression,
misconduct in office, gross
negligence, or dereliction of duty;
(d) Commission of any offense
involving moral turpitude or an
offense punishable by at least prision
mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen
(15) consecutive working days,
except in the case of members of
the sangguniang panlalawigan,
sangguniang panlungsod,
sangguniang bayan, and
sangguniang barangay;
(g) Application for, or acquisition of,
foreign citizenship or residence or the
status of an immigrant of another
country; and
(h) Such other grounds as may be
provided in this Code and other laws.
An elective local official may be removed
from office on the grounds enumerated
above by order of the proper court.
• Penalty of suspension not a bar to
candidacy of respondent as long as he
meets qualifications; Removal is a bar to
candidacy (Sec. 66).
• Penalty of suspension cannot exceed the
unexpired term or a period of 6 months
for every administrative offense (Sec.66).
• An appeal shall not prevent the decision
from becoming final & executory (Sec. 68)
Removal by final judgment is a bar to a
candidacy.
An appeal from an adverse decision against the
respondent official shall not prevent the decision
from becoming final and executory. Well of
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course, it is a matter of discretion ex. Office of the
Pres whether to execute or not.
Section 66. Form and Notice of Decision. -
(a) The investigation of the case shall
be terminated within ninety (90) days
from the start thereof. Within thirty
(30) days after the end of the
investigation, the Office of the
President or the sanggunian
concerned shall render a decision in
writing stating clearly and distinctly
the facts and the reasons for such
decision. Copies of said decision shall
immediately be furnished the
respondent and all interested parties.
(b) The penalty of suspension shall
not exceed the unexpired term of
the respondent or a period of six (6)
months for every administrative
offense, nor shall said penalty be a
bar to the candidacy of the
respondent so suspended as long as
he meets the qualifications required
for the office.
(c) The penalty of removal from
office as a result of an administrative
investigation shall be considered a
bar to the candidacy of the
respondent for any elective position.
Section 68. Execution Pending Appeal. - An
appeal shall not prevent a decision from
becoming final or executory. The
respondent shall be considered as having
been placed under preventive suspension
during the pendency of an appeal in the
event he wins such appeal. In the event the
appeal results in an exoneration, he shall be
paid his salary and such other emoluments
during the pendency of the appeal.
• When petitioner Governor is in default,
issues are joined because of his failure to
file his answer despite notice and grant of
3 extensions of time to file same.
Preventive suspension order is valid (Joson
vs. Torres, 290 SCRA 279). The lack of
verification is a mere formal, not
jurisdictional, defect. Requirement of
 2016 Public Officers & Corporation 4th yr Review
verification was deemed waived when
President himself acted on the complaint.
• Note: Prev. Susp. may be issued at any
time after the issues are joined, when
evidence of guilt is strong & there is great
probability that resp.’s continuance could
influence xxx
He was given so many times to file counter
affidavits but he failed and so in this case, the
governor should already be considered in
default.
• Governor has no power to preventively
suspend city elective officials under Sec.
63 LGC. The admin case vs. them should
have been filed w/DILG (Regidor et al. of
Tangub vs. Chiongbian, 173 SCRA 507).
• Proper remedy to challenge SP decision
absolving mun. mayor is an appeal to OP
under Sec. 67, not a petition for certiorari
& mandamus (Malinao vs. Reyes, 255
SCRA 616)
• Stay of execution (of penalty of
suspension) pending appeal allowed
under AO 18 despite Sec. 68 (Berces vs.
Guingona & Mayor Corral, 241 SCRA 439).
An admin case was filed against the mayor and
city councilors before the provincial government.
Admin cases against the elective officials of
urbanized cities ought to be filed before the
Office of the President through the DILG. The
province through the governor does not have
power to suspend.
Appeal before the Office of the President not
before the court.
Section 63. Preventive Suspension. -
(a) Preventive suspension may be
imposed:
(1) By the President, if the
respondent is an elective
official of a province, a highly
urbanized or an independent
component city;
(2) By the governor, if the
respondent is an elective
official of a component city
or municipality; or
(3) By the mayor, if the
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respondent is an elective
official of the barangay.
(b) Preventive suspension may be
imposed at any time after the issues
are joined, when the evidence of
guilt is strong, and given the gravity
of the offense, there is great
probability that the continuance in
office of the respondent could
influence the witnesses or pose a
threat to the safety and integrity of
the records and other evidence:
Provided, That, any single preventive
suspension of local elective officials
shall not extend beyond sixty (60)
days: Provided, further, That in the
event that several administrative
cases are filed against an elective
official, he cannot be preventively
suspended for more than ninety (90)
days within a single year on the same
ground or grounds existing and
known at the time of the first
suspension.
(c) Upon expiration of the preventive
suspension, the suspended elective
official shall be deemed reinstated in
office without prejudice to the
continuation of the proceedings
against him, which shall be
terminated within one hundred
twenty (120) days from the time he
was formally notified of the case
against him. However, if the delay in
the proceedings of the case is due to
his fault, neglect, or request, other
than the appeal duly filed, the
duration of such delay shall not be
counted in computing the time of
termination of the case.
(d) Any abuse of the exercise of the
power of preventive suspension shall
be penalized as abuse of authority.
Section 67. Administrative Appeals. -
Decisions in administrative cases may, within
thirty (30) days from receipt thereof, be
 2016 Public Officers & Corporation 4th yr Review
appealed to the following:
(a) The sangguniang panlalawigan,
in the case of decisions of the
sangguniang panlungsod of
component cities and the
sangguniang bayan; and
(b) The Office of the President, in the
case of decisions of the sangguniang
panlalawigan and the sangguniang
panlungsod of highly urbanized cities
and independent component cities.
Decisions of the Office of the President shall
be final and executory.
• The Sangguniang Panlungsod or
Sangguniang Bayan cannot order the
removal of an erring elective barangay
official from office, as the courts are
exclusively vested with this power under
Sec. 60 of LGC. The most extreme penalty
that the SP or SB may impose on him is
suspension; if it deems that his removal
from the service is warranted, then it can
resolve that the proper charges be filed in
court (Sangguniang Barangay of Don
Mariano Marcos, Bayombong, Nueva
Viscaya vs. Martinez, 03/03/08).
LOCAL AUTONOMY
2 kinds:
1. Administrative Autonomy [Article X Sec. 2]
2. Political Autonomy [Article X Sec. 18]
Ø Encompassing
2 Kinds of Autonomy
a. Administrative Autonomy (Sec. 2 Art. X)
[The territorial & political subds. shall enjoy
local autonomy.]
- transfer of power from the central gov’t to the
LGUs; synonymous with decentralization of
administration.
b. Political Autonomy (Sec. 18 Art. X)
- encompasses not only administrative
autonomy but includes power to set up basic
structures xxx
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Applies to autonomous regions the authority to
establish courts in relation to the customs and
traditions of the inhabitants of the place.
POLICE POWER
Ø Not inherent in LGUs
Ø 2 kinds/ branches of general welfare
clause [Sec. 16 RA 7160]:
o General legislative power
o Police power proper
Article X Section 2. The territorial and
political subdivisions shall enjoy local
autonomy.
Article X Section 18. The Congress shall
enact an organic act for each autonomous
region with the assistance and participation
of the regional consultative commission
composed of representatives appointed by
the President from a list of nominees from
multi-sectoral bodies. The organic act shall
define the basic structure of government for
the region consisting of the executive
department and legislative assembly, both
of which shall be elective and
representative of the constituent political
units. The organic acts shall likewise provide
for special courts with personal, family, and
property law jurisdiction consistent with the
provisions of this Constitution and national
laws.
The creation of the autonomous region shall
be effective when approved by majority of
the votes cast by the constituent units in a
plebiscite called for the purpose, provided
that only provinces, cities, and geographic
areas voting favorably in such plebiscite
shall be included in the autonomous region.
Not inherent in LGUs; most essential, insistent and
the least limitable of powers; liberal interpretation
of general welfare clause
Sec. 16 RA 7160: 2 branches of general welfare
clause
a. general legislative power – enact ordinances
as may be necessary to carry out & discharge
the responsibilities conferred to MCs by law.
b. police power proper – enact such ordinance
as shall be necessary & proper to promote health
& safety, prosperity & general welfare, improve
 2016 Public Officers & Corporation 4th yr Review
morals & maintain peace and order.
RA 7160 Section 16. General Welfare. - Every
local government unit shall exercise the
powers expressly granted, those necessarily
implied therefrom, as well as powers
necessary, appropriate, or incidental for its
efficient and effective governance, and
those which are essential to the promotion
of the general welfare. Within their
respective territorial jurisdictions, local
government units shall ensure and support,
among other things, the preservation and
enrichment of culture, promote health and
safety, enhance the right of the people to a
balanced ecology, encourage and support
the development of appropriate and
self-reliant scientific and technological
capabilities, improve public morals,
enhance economic prosperity and social
justice, promote full employment among
their residents, maintain peace and order,
and preserve the comfort and convenience
of their inhabitants.
4 Requisites for exercise of police power
• Requisites for exercise of police
power
1.exercisable in territorial limits of LGU
2. interest of the public vs. those of a
particular class requires such interference
3. means used is reasonably necessary for
accomplishment of purpose & not unduly
oppressive upon individuals
4. must not be contrary to Constitution
and law
• Opening of road/demolition of
gates in Bel-Air to decongest
traffic is valid. Police power
consists of imposition of restraint
upon liberty or property to foster
the common good (Sangalang vs.
IAC).
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• Ordinance legalizing occupancy
by squatters of public lands is void,
w/o prior legislative authority.
Squatting fosters moral
decadence & does not promote
public welfare. State has plenary
power in law to determine who
shall be recipients & under what
terms (Baguio Citizens Action vs.
City Council).
Opening of Orbit road to is a valid exercise of
police power. Also, the demolition of the walls in
Jupiter street in Bel-Air was a valid exerice to
decongest traffic.
• Memorial parks to set aside 6% of
their cemetery for charity burial
(QC vs. Ericta)
• Mun. resolution for transfer of
petitioner’s gasoline station
supposedly w/in 100 meters from
church is invalid as there was no
attempt to measure the distance.
A gas station is not a nuisance per
se (Parayno vs. Mun. of Calasiao,
Pangasinan,495 SCRA 85)
• Use of LGU funds for
repair/improvement of road lots in
Green Heights Subd. before their
donation to LGU is unlawful (Albon
vs. Fernando, 494 SCRA 143).
• Sec. 335 LGC: No public fund shall
be appropriated or applied for
private purpose.
QC vs. Ericta
Memorial parks to set aside 6% of their cemetery
for charity burial is void. It passes the responsibility
of the municipal corporation’s burden to the
private sector. This is in fact confiscatory.
Parayno vs. Municipality of Calasiao 495 SCRA
85—transfer of gasoline station—Invalid.
The gas station was allegedly 100m from the
church. There was no attempt to measure the
distance.
Albon vs. Fernando 494 SCRA 143
 2016 Public Officers & Corporation 4th yr Review
The roads of Green Heights subdivision was
repaired using the funds of the local government.
This is invalid.
Lim vs. CA 387 SCRA 149
Mayor Lim raided a certain Bangkok
establishment. This is invalid.
While the mayor has the power to inspect for
violatoin of the terms of the permit, the mayor
has no power to order police raid in the guise of
inspection. There has to be due process before
the establishment may be closed.
• While mayor has power to inspect
& investigate commercial
establishments for violation of
conditions of their licenses &
permits he has no power to order a
police raid on these
establishments in guise of
inspecting or investigating them &
ordering their closure
arbitrarily/despotically. While he
has power to grant & refuse
licenses & business permits as
provided in LGC the power to
revoke or suspend the same is
premised on violation of conditions
therein (Lim vs. CA 387 SCRA 149).
Massage parlors in barbershops (Velasco vs.
Villegas, 120 SCRA 568) -- It is valid to
promote morality. But now that will be
considered as intrusion of property rights.
A police measure aimed at safeguarding
public morals (Ermita Malate Hotel
Operators vs Mayor of Manila) -- Children
below 18 must be accompanied by parents,
plus filling up of registration forms. This
ordinance was held valid. Later on the case
of White House, this ruling has been set
aside.
Ordinance prohibiting full payment for
admission of children is confiscatory and
unreasonable (Balacuit vs. CFI, 163 SCRA
182; ’03 BQ) -- Ordinance for children 12
years ad below required to show proof of
their age to enter the movie house.. It is
invalid.
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LGU may in exercise of police power under
the general welfare clause
order the closure of a bank for failure to
secure the appropriate mayor’s permit and
business licenses (RB of Makati vs. Mun. of
Makati
GR 150763 02 July 2004).
The ordinances – banning the shipment of
all live fishes except bass catfish … for 5
years and prohibiting the catching of live
marine corral dwelling organisms – are a
valid exercise of police power. The
centerpiece of the LGC is decentralization
as mandated by the Constitution. One of
the devolved powers is the enforcement of
fishery laws in municipal waters. This
includes the enactment of ordinances to
carry out such fishery laws ( Tano vs.
Socrates 278 SCRA 144).
An ordinance requiring anyone who wanted
to work in Manila to obtain a mayor’s permit
is void. It does not contain any standard to
guide the issuance of permits. Requiring
permit from the mayor who may withhold or
refuse it at will is tantamount to denial of the
right of the people to engage in a means of
livelihood (Villegas vs. Hiu Pao Ho
86 SCRA 270).
Lotto is a game of chance authorized by the
national government thru RA 1169 as
amended by BP 42. What the national
legislature expressly allows by law such as
lotto the Sanggunian cannot disallow by
resolution. Sections 26 & 27 of the LGC which
provide for prior approval of SP apply only to
national programs to be implemented in
particular local community. Lotto is not a
program/project of the national government
but of a charitable institution PCSO (Lina vs.
Pano 364 SCRA 76).
Section 26. Duty of National Government
Agencies in the Maintenance of Ecological
Balance. - It shall be the duty of every
national agency or government-owned or
controlled corporation authorizing or
involved in the planning and
 2016 Public Officers & Corporation 4th yr Review
implementation of any project or program
that may cause pollution, climatic change,
depletion of non-renewable resources, loss
of crop land, rangeland, or forest cover, and
extinction of animal or plant species, to
consult with the local government units,
nongovernmental organizations, and other
sectors concerned and explain the goals
and objectives of the project or program, its
impact upon the people and the
community in terms of environmental or
ecological balance, and the measures that
will be undertaken to prevent or minimize
the adverse effects thereof.
Section 27. Prior Consultations Required. - No
project or program shall be implemented by
government authorities unless the
consultations mentioned in Sections 2 (c)
and 26 hereof are complied with, and prior
approval of the sanggunian concerned is
obtained: Provided, That occupants in areas
where such projects are to be implemented
shall not be evicted unless appropriate
relocation sites have been provided, in
accordance with the provisions of the
Constitution
• The LGU cannot enact an ordinance
or approve a resolution in violation
of a general law. Since EO 205 (a
general law) mandates that the
regulation of CATV operations shall
be exercised by the NTC, Res. # 210
of the SP contravenes said EO insofar
as it permits respondent SP to usurp a
power exclusively vested in the NTC,
i.e. power to fix the subscriber rates
charged by CATV operators
(Batangas CATV vs. SP of Batangas,
439 SCRA 327).
• Abatement of Nuisance
ABATEMENT OF NUISANCE
Nuisance per se -- Under any condition, it is a
disturbance, may be a subject of removal.
Nuisance per accidens -- Secure first a court order
in order to be abated.
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• An ordinance prohibiting
shorttime admission, short time
admission rates and wash
up rate schemes and renting out a
room more than twice a day in
hotels, motels, inns, lodging
houses, pension houses & similar
establishments to prevent illicit
activities was struck down as an
arbitrary intrusion into private rights
(White Light Corp. vs. City of
Manila, 01/20/09).
• A Manila City ordinance banning
the operation of motels & inns w/in
what was then a red light district in
Ermita
• Malate area is unconstitutional
(City of Manila vs. Laguio Jr., 455
SCRA 308).
You can regulate but you cannot prohibit. If the
congress has no law prohibiting the activity with
all the more reason the municipal corporation
cannot.
POWER OF EMINENT DOMAIN
• Sec. 9 Art. lll: Private property shall
not be taken for public use w/o
just compensation.
• Eminent domain is essentially
lodged in the legislature. Strictly
speaking, the power of eminent
domain delegated to a LGU is in
reality not eminent but “inferior”
since it must conform to the limits
imposed by the delegation & thus
partakes only a share in eminent
domain (Beluso vs. Mun. of Panay,
498 SCRA 113).
• Requisites for its exercise under
Sec. 19 RA 7160
1. Ordinance is enacted by local
sanggunian authorizing the chief
executive to pursue expropriation
proceedings over a particular private
land.
2. It is exercised for public use, purpose
or welfare, or for benefit of the poor & the
landless.
 2016 Public Officers & Corporation 4th yr Review
3. There is payment of just
compensation.
4. A valid & definite offer made to
property owner but said offer was not
accepted (Beluso vs. Mun. of Panay, 498
SCRA 114).
Take note, ordinance not resolution.
Section 19. The municipal corp may already take
possession upon the filing of pet and tender of
deposit equivalent to at least 15% of the fair
market value based on the tax declaration of the
land owner.
Section 19. Eminent Domain. - A local
government unit may, through its chief
executive and acting pursuant to an
ordinance, exercise the power of eminent
domain for public use, or purpose or welfare
for the benefit of the poor and the landless,
upon payment of just compensation,
pursuant to the provisions of the Constitution
and pertinent laws: Provided, however, That
the power of eminent domain may not be
exercised unless a valid and definite offer
has been previously made to the owner,
and such offer was not accepted: Provided,
further, That the local government unit may
immediately take possession of the property
upon the filing of the expropriation
proceedings and upon making a deposit
with the proper court of at least fifteen
percent (15%) of the fair market value of the
property based on the current tax
declaration of the property to be
expropriated: Provided, finally, That, the
amount to be paid for the expropriated
property shall be determined by the proper
court, based on the fair market value at the
time of the taking of the property.
• Two legal provisions which limit the
exercise of power of eminent domain
1. No person shall be deprived of xxx property
w/o due process of law nor shall he be denied
the equal protection of the laws.
2.Private property shall not be taken for public
use without just compensation.
• When municipal property is taken by
state, should there be compensable
taking?
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When municipal property is taken by state
should there be compensable taking? IT
DEPENDS—proprietary [yes] or governmental [no]
• Eminent domain
• being a derogation of private property
rights
• is justified only by clear public necessity of
an urgent public policy.
Sangguniang Panlalawigan is without
authority to disapprove a municipal
ordinance authorizing the mayor to initiate
expropriation since the municipality has the
power to exercise the right of eminent
domain. The only ground to disapprove is
when the resolution or ordinance is beyond
the power of the Sangguniang Bayan or the
Mayor (Moday vs. CA 268 SCRA 587).
Ultra-vires.
• Condemnation of small property is
not for public purpose
• i.e. condemnation in behalf of 20 or
50 persons & their families does not
enure to public benefit to give the
use a public character (Guido vs.
Rural Administration).
• Private lands rank last in the order of
priority for purposes of socialized
housing. Expropriation proceedings
may be resorted to only after the
other modes of acquisition are
exhausted (Lagcao vs. Labra
• 440 SCRA 279).
• The clearance of slums & erections of
houses for low income families are
considered public purpose. The reason is
that the destruction of congested areas &
unsanitary dwellings diminishes
potentialities of epidemics, crimes &
wastes. However, the areas must be so
extensive that they involve numerous
persons & the public will be generally
benefited by such action.
DIFFERENTIATION BETWEEN RESOLUTION VS.
ORDINANCE
 2016 Public Officers & Corporation 4th yr Review
• Resolution is upon a specific matter of
a temporary nature while the latter is
a law that is permanent in character.
No rights can be conferred by and be
inferred from a resolution w/c is
nothing but an embodiment of what
the lawmaking body has to say in
light of attendant circumstances. It
simply expresses its sentiment or
opinion (Yusay vs. CA & City Council
of Mandaluyong 4/6/11).
• Expropriation of 7,270 sq.m. lot intended
as university site is not for public purpose
since only a few families will be benefited.
It fades into insignificance in comparison
to the preparation of young people for
service to the community (City of Manila
vs. Arellano Colleges).
• Mandamus is a remedy available to
property owner to compel enactment of
appropriation ordinance to satisfy the
unpaid just compensation. In case of
failure to pay w/in 5 yrs, owner has right to
recover possession of property (Yujuico
vs. Atienza, 472 SCRA 466).
• Sec. 20 of LGC provides that the
city or municipality can reclassify
land only thru the enactment of an
ordinance. Here, the
reclassification of the real
properties of Polo Coconut
Plantation Co. from agricultural to
mixed res., commercial &
industrial lands by the
Sangguniang Panglunsod of
Tanjay City was by mere
resolution, thus, it was invalid. For
this reason, the property was still
subject to CARP (DAR vs. PCPI, 564
SCRA 81).
Section 20. Reclassification of Lands. -
(a) A city or municipality may, through an
ordinance passed by the sanggunian after
conducting public hearings for the purpose,
authorize the reclassification of agricultural
lands and provide for the manner of their
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utilization or disposition in the following cases:
(1) when the land ceases to be economically
feasible and sound for agricultural purposes
as determined by the Department of
Agriculture or (2) where the land shall have
substantially greater economic value for
residential, commercial, or industrial
purposes, as determined by the sanggunian
concerned: Provided, That such
reclassification shall be limited to the
following percentage of the total agricultural
land area at the time of the passage of the
ordinance:
(1) For highly urbanized and independent
component cities, fifteen percent (15%);
(2) For component cities and first to the third
class municipalities, ten percent (10%); and
(3) For fourth to sixth class municipalities, five
percent (5%): Provided, further, That
agricultural lands distributed to agrarian
reform beneficiaries pursuant to Republic Act
Numbered Sixty-six hundred fifty-seven (R.A.
No. 6657). otherwise known as "The
Comprehensive Agrarian Reform Law", shall
not be affected by the said reclassification
and the conversion of such lands into other
purposes shall be governed by Section 65 of
said Act.
(b) The President may, when public
interest so requires and upon
recommendation of the National
Economic and Development
Authority, authorize a city or
municipality to reclassify lands in
excess of the limits set in the next
preceding paragraph.
(c) The local government units shall, in
conformity with existing laws, continue
to prepare their respective
comprehensive land use plans
enacted through zoning ordinances
which shall be the primary and
dominant bases for the future use of
land resources: Provided. That the
requirements for food production,
human settlements, and industrial
 2016 Public Officers & Corporation 4th yr Review
expansion shall be taken into
consideration in the preparation of
such plans.
(d) Where approval by a national
agency is required for reclassification,
such approval shall not be
unreasonably withheld. Failure to act
on a proper and complete
application for reclassification within
three (3) months from receipt of the
same shall be deemed as approval
thereof.
(e) Nothing in this Section shall be
construed as repealing, amending, or
modifying in any manner the
provisions of R.A. No. 6657.
POWER OF TAXATION
Article X Sec. 5
Sec. 186-187 of LGC
Drilon vs. Lim 235 SCRA 135
MIAA vs. CA 495 SCRA 591
GR: 234 of LGC
Exception: Sec. 133
Coca Cola vs. Manila City; Sec. 188 LGC [493
SCRA 279]
• Sec. 5 Art. X : Each LGU shall have
the power to create its own
sources of revenues and to levy
taxes, fees & charges subject to
such guidelines and limitations as
Congress may provide, consistent
w/ basic policy of autonomy. Such
taxes, fees & charges shall accrue
exclusively to the local
governments.
• Conditions for its exercise: just &
uniform in each municipality; not
confiscatory; devoted exclusively
to local pub. purpose; w/in
jurisdiction of LGU to pass xxx
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• The ordinance levying such taxes
fees or charges shall not be
enacted w/o any prior public
hearing conducted (Sec. 186
LGC).
• Under Sec. 187 of LGC
• it authorizes the DOJ Secretary to
revieww/in 30 days from effectivity
of ordinance its legality or
constitutionality & if warranted to
revoke it. Such appeal does not
have the effect of suspending the
effectivity of the ordinance. This
authority is not an exercise of the
power of control over LGU (Drilon
vs. Lim 235 SCRA 135).
Section 5. Each local government unit shall
have the power to create its own sources of
revenues and to levy taxes, fees and charges
subject to such guidelines and limitations as
the Congress may provide, consistent with
the basic policy of local autonomy. Such
taxes, fees, and charges shall accrue
exclusively to the local governments.
Section 186. Power To Levy Other Taxes, Fees
or Charges. - Local government units may
exercise the power to levy taxes, fees or
charges on any base or subject not otherwise
specifically enumerated herein or taxed
under the provisions of the National Internal
Revenue Code, as amended, or other
applicable laws: Provided, That the taxes,
fees, or charges shall not be unjust, excessive,
oppressive, confiscatory or contrary to
declared national policy: Provided, further,
That the ordinance levying such taxes, fees or
charges shall not be enacted without any
prior public hearing conducted for the
purpose.
Section 187. Procedure for Approval and
Effectivity of Tax, Ordinances and Revenue
Measures; Mandatory Public Hearings. - The
procedure for approval of local tax
ordinances and revenue measures shall be in
accordance with the provisions of this Code:
Provided, That public hearings shall be
conducted for the purpose prior to the
enactment thereof: Provided, further, That
any question on the constitutionality or
 2016 Public Officers & Corporation 4th yr Review
legality of tax ordinances or revenue
measures may be raised on appeal within
thirty (30) days from the effectivity thereof to
the Secretary of Justice who shall render a
decision within sixty (60) days from the date of
receipt of the appeal: Provided, however,
That such appeal shall not have the effect of
suspending the effectivity of the ordinance
and the accrual and payment of the tax, fee,
or charge levied therein: Provided, finally,
That within thirty (30) days after receipt of the
decision or the lapse of the sixty-day period
without the Secretary of Justice acting upon
the appeal, the aggrieved party may file
appropriate proceedings with a court of
competent jurisdiction.
Sec. 187 LGC
• Such appeal to DOJ Secretary does not
have the effect of suspending the
effectivity of the ordinance & the accrual
and payment of taxes, fees xxx
• Within 30 days from receipt of decision of
DOJ Secretary or the lapse of 60 day
period w/o the Secretary acting upon
the appeal, aggrieved party may file
appropriate proceedings w/ court.
• MIAA Airport lands and buildings are
exempt from real estate tax imposed
by LGUs; reasons (MIAA vs. CA, 495
SCRA 591)
• Gen. Rule: LGUs cannot impose any
kind of tax on national government
instrumentalities (like the MIAA)
under Sec. 234 LGC.
Exception: if instrumentality gives
beneficial use of its real properties to a
taxable entity under Sec. 133.
• Publication of tax ordinance for 3
consecutive days in a newspaper of
local circulation under Sec. 188 LGC
(Coca Cola vs. Manila City, 493
SCRA 279)
• Requisites for validity of municipal
contracts (BQ)
• Under Sec. 23 LGC, the local chief
executive, upon Sanggunian
authority, may negotiate & secure
financial grants or donations, local or
foreign, in support of basic services
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w/o getting approval from national
government, unless there is national
security implication. He shall report it
to Congress & the President w/in 30
days upon signing of such grant.
Published for only one day. SC: Invalid tax
ordinance for the lack of compliance of the
3-day publication.
Requirements:
1. Within the authority of the mun corp
2. Entered into on its behalf by a duly
authorized officer
3. compliance with substantial reqs such as
appropariation of public funds and cert of
availability
4. Compliance with formal requirements of a
written contract
5. Section 133. Common Limitations on
the Taxing Powers of Local
Government Units. - Unless otherwise
provided herein, the exercise of the
taxing powers of provinces, cities,
municipalities, and barangays shall
not extend to the levy of the
following:
6. (a) Income tax, except when levied
on banks and other financial
institutions;
7. (b) Documentary stamp tax;
8. (c) Taxes on estates, inheritance, gifts,
legacies and other acquisitions mortis
causa, except as otherwise provided
herein;
9. (d) Customs duties, registration fees of
vessel and wharfage on wharves,
tonnage dues, and all other kinds of
customs fees, charges and dues
except wharfage on wharves
constructed and maintained by the
local government unit concerned;
10. (e) Taxes, fees, and charges and
other impositions upon goods carried
into or out of, or passing through, the
territorial jurisdictions of local
government units in the guise of
charges for wharfage, tolls for bridges
 2016 Public Officers & Corporation 4th yr Review
or otherwise, or other taxes, fees, or
charges in any form whatsoever upon
such goods or merchandise;
11. (f) Taxes, fees or charges on
agricultural and aquatic products
when sold by marginal farmers or
fishermen;
12. (g) Taxes on business enterprises
certified to by the Board of
Investments as pioneer or non-pioneer
for a period of six (6) and four (4)
years, respectively from the date of
registration;
13. (h) Excise taxes on articles
enumerated under the national
Internal Revenue Code, as amended,
and taxes, fees or charges on
petroleum products;
14. (i) Percentage or value-added tax
(VAT) on sales, barters or exchanges
or similar transactions on goods or
services except as otherwise provided
herein;
15. (j) Taxes on the gross receipts of
transportation contractors and
persons engaged in the
transportation of passengers or freight
by hire and common carriers by air,
land or water, except as provided in
this Code;
16. (k) Taxes on premiums paid by way or
reinsurance or retrocession;
17. (l) Taxes, fees or charges for the
registration of motor vehicles and for
the issuance of all kinds of licenses or
permits for the driving thereof, except
tricycles;
18. (m) Taxes, fees, or other charges on
Philippine products actually exported,
except as otherwise provided herein;
19. (n) Taxes, fees, or charges, on
Countryside and Barangay Business
Enterprises and cooperatives duly
registered under R.A. No. 6810 and
Republic Act Numbered Sixty-nine
hundred thirty-eight (R.A. No. 6938)
otherwise known as the "Cooperative
Code of the Philippines" respectively;
and
20. (o) Taxes, fees or charges of any kind
on the National Government, its
agencies and instrumentalities, and
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local government units.
21. Section 234. Exemptions from Real
Property Tax. - The following are
exempted from payment of the real
property tax:
22. (a) Real property owned by the
Republic of the Philippines or any of its
political subdivisions except when the
beneficial use thereof has been
granted, for consideration or
otherwise, to a taxable person;
23. (b) Charitable institutions, churches,
parsonages or convents appurtenant
thereto, mosques, non-profit or
religious cemeteries and all lands,
buildings, and improvements actually,
directly, and exclusively used for
religious, charitable or educational
purposes;
24. (c) All machineries and equipment
that are actually, directly and
exclusively used by local water
districts and government owned or
controlled corporations engaged in
the supply and distribution of water
and/or generation and transmission of
electric power;
25. (d) All real property owned by duly
registered cooperatives as provided
for under R.A. No. 6938; and
26. (e) Machinery and equipment used
for pollution control and
environmental protection.
27. Except as provided herein, any
exemption from payment of real
property tax previously granted to, or
presently enjoyed by, all persons,
whether natural or juridical, including
all government-owned or controlled
corporations are hereby withdrawn
upon the effectivity of this Code.
 2016 Public Officers & Corporation 4th yr Review
Sec. 21 [Code: R A P S]
• LGU, thru ordinance, can temporarily or
permanently close or open any local
road, alley, park or square. If permanent
closure, ordinance must be approved by
2/3 of all members of sanggunian &
when necessary, an adequate substitute is
provided.
• Property permanently withdrawn from
public use may be used or conveyed for
any purpose. No freedom park shall be
closed permanently w/o provision for its
relocation.
• Any national or local RAPS may be
temporarily closed during actual
emergency, fiesta, public rallies, fairs, or
public works undertaking xxx
• Municipality has no power to
withdraw a part of its public plaza
from public use and lease it for
private use. It is outside the
commerce of man & cannot be the
object of contract (Mun. of Cavite vs.
Rojas, BQ).
• Charter of Cebu empowers city to
withdraw a city road from public use.
After withdrawal, it becomes
patrimonial property & may be a
valid object of contract of sale (Cebu
Oxygen & Acetylene vs. Bercilles).
Section 21. Closure and Opening of Roads. -
(a) A local government unit may, pursuant to
an ordinance, permanently or temporarily
close or open any local road, alley, park, or
square falling within its jurisdiction: Provided,
however, That in case of permanent closure,
such ordinance must be approved by at
least two-thirds (2/3) of all the members of
the sanggunian, and when necessary, an
adequate substitute for the public facility
that is subject to closure is provided.
(b) No such way or place or any part thereof
shall be permanently closed without making
provisions for the maintenance of public
safety therein. A property thus permanently
withdrawn from public use may be used or
conveyed for any purpose for which other
real property belonging to the local
97 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
government unit concerned may be lawfully
used or conveyed: Provided, however, That
no freedom park shall be closed
permanently without provision for its transfer
or relocation to a new site.
(c) Any national or local road, alley, park, or
square may be temporarily closed during an
actual emergency, or fiesta celebrations,
public rallies, agricultural or industrial fairs, or
an undertaking of public works and
highways, telecommunications, and
waterworks projects, the duration of which
shall be specified by the local chief
executive concerned in a written order:
Provided, however, That no national or local
road, alley, park, or square shall be
temporarily closed for athletic, cultural, or
civic activities not officially sponsored,
recognized, or approved by the local
government unit concerned.
(d) Any city, municipality, or barangay may,
by a duly enacted ordinance, temporarily
close and regulate the use of any local
street, road, thoroughfare, or any other
public place where shopping malls, Sunday,
flea or night markets, or shopping areas may
be established and where goods,
merchandise, foodstuffs, commodities, or
articles of commerce may be sold and
dispensed to the general public.
LIABILITY OF MCs on Contracts
• Liability on contracts: Municipal
corporations are liable on
contracts entered into in their
behalf by their duly authorized
agents acting within the scope of
their authority, provided that the
municipal corporations are
authorized to enter into said
contracts by their charter/law.
• Not liable for ultra vires contracts,
whether or not the other party has
fully carried out his part of the
contract
• If beyond the agent’s authority,
MC is not liable although within its
corporate powers, unless there is
ratification by the Sanggunian.
 2016 Public Officers & Corporation 4th yr Review
• MC cannot ratify a contract which
it has no power to enter into
(invalid contracts).
LIABILITY OF MCS for TORTS
• MC is not liable for torts committed
by its officers in performance of
governmental functions.
*Palafox vs. Province of Ilocos Norte
• Exceptions; instances MC is liable
even in performance of
governmental functions:
a. Art. 2189 CC (City of Manila vs.
Teotico)
b. special agent
• MC is liable for torts arising from
performance of its proprietary
functions [Respondeat superior]
(Torio vs. Fontanilla~ Mun. of
Malasique, Pangasinan).
Palafox got run over by a dump truck while
building roads owned by the Province of Ilocos
Norte. Can the heirs hold liable the province?
Province is not liable. It was performing a
governmental functions.
Exceptions:
1. Let’s say the driver of that dump truck is
not the regular driver but an agent, the
MC becomes liable.
2. City of manila do you recall this case.
there was this guy who was standing at
the corner of Burogs jan 27 1958. And so
he hailed a jeepney. But he did not see
this open man hole nahulog siya doon sa
katangahan. Can the heirs sue the City of
Manila?
Even if it is not a national highway,
provinces, cities and municipalities shall
be liable for damages for the death or
injuries suffered by any person by reason
98 | Transcribed by: Escovilla, Jambangan, Juezan, Gonzales, Pader, Sarno, Tejero
of the defective conditions of roads,
streets, bridges, public buildings and other
public works under their control or
supervision.
Here the City of Manila is liable.
For proprietary functions:
MC is liable for torts arising from performance of its
proprietary functions [Respondeat superior]
There was a fiesta. They invited some performers
and the stage collapsed. The performer died.
Can the heirs hold the mun liable? By respondeat
superior, the MC is liable. Fiestas, holding religious
events. Is proprietary not governmental.
LGU liability under these laws
• Sec. 2189 CC: Provinces, cities and
municipalities shall be liable for
damages for the death or injuries
suffered by any person by reason
of the defective conditions of
roads, streets, bridges, public
buildings and other public works
under their control or supervision.
• Sec. 24 LGC: LGUs and their
officials are not exempt from
liability for death or injury to
persons or damage to property.
• MC is not liable for failure of its
officers to suppress disorder.
--the maintenance of peace and
order is a governmental task so
the MC is not liable. The officer or
employee concered is the one
liable.
• Petitioners leased a lot at North
Cemetery for 50 yrs. & buried in it
the deceased. Caretaker
exhumed the bones of the
deceased & placed them in a
sack & in a depository, making it
impossible to identify the bones.
MC is liable for damages.
Cemetery is a property in its
proprietary function ( City of
Manila vs. IAC, 179 SCRA 428).
• Petitioner stepped into an
uncovered opening at Sta. Ana
Public Market. A large nail pierced
his leg and he sustained injuries.
The City is liable under Art. 2189
 2016 Public Officers & Corporation 4th yr Review

CC. Although the public market

had been turned over to a private
corporation under a contract, MC
retained supervision/ control
(Jimenez vs. City of Manila, 150
SCRA 510).

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