up 2008 barops public-officers-2007

8/14/2019 UP 2008 Barops Public-Officers-2007

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LAW ON

PUBLIC OFFICERS

Consolidated from Reviewer and Outline fromBarOps 2003 and 2004

I. PUBLIC OFFICE AND OFFICERS

A. Public Office

1. Definition

the right, authority and duty created and

conferred by law, by which for a givenperiod, either fixed by law or enduring atthe pleasure of the appointing power, anindividual is invested with some portion

of the sovereign functions of thegovernment, to be exercised by him forthe benefit of the public. (Fernandez vSto. Tomas, March 7, 2005)

2. Purpose

to effect the end for which governmenthas been instituted which is the commongood; not profit, honor, or privateinterest of any person, family or class ofpersons (63 Am Jur 2d 667)

3. Nature

A public office is a public trust. (Art. XI,

Sec. 1, 1987 Consti)

It is a responsibility and not a right.

(Morfe v. Mutuc)

4. Elements

Must be created either by (a) the

Constitution, (b) the Legislature, or (c) amunicipality or other body throughauthority conferred by the Legislature;

Must possess a delegation of a portion of

the sovereign power of government, to beexercised for the benefit of the public;

The powers conferred and the duties

discharged must be defined, directly orimpliedly by the Legislature or throughlegislative authority;

The duties must be performed

independently and without control of asuperior power other than the law;

- Exception: If the duties are those ofan inferior or subordinate office,created or authorized by theLegislature and by it placed under thegeneral control of a superior office orbody;

Must have some permanency and

continuity

- Note: This is not to be applied literally.The Board of Canvassers is a publicoffice, yet its duties are only for alimited period of time.

- The element of continuance cannot beconsidered as indispensable. Mechemdescribes the delegation to theindividual of some of the sovereign

functions of government as the mostimportant characteristic indetermining whether a position is apublic office or not [Laurel v. Desierto(April 12, 2002)].In this case, Laurel, who was the chair

of the National Centennial Commission (NCC),was declared by the Court to be a public

officer. The Court ruled that the NCC performsexecutive functions as it enforces and carriesinto operation the conservation and promotionof the nations historical and cultural heritage,a policy embodied in the Constitution. ThatLaurel did not receive any compensation during

his tenure is of little consequence. This isbecause a salary is a usual but not a necessarycriterion for determining the nature of theposition. At the same time, the element ofcontinuance cannot be considered asindispensable.

5. Public Office v. Public Employment

Public employment is broader than public

office. All public office is public

employment, but not all public employmentis a public office.

A public office when it is created by law,

with duties cast upon the incumbent which

involve the exercise of some portion of thesovereign power, and in the performance ofwhich the public is concerned. Publicemployment is a position which lacks oneor more of the foregoing elements.

Public Office Public Contract

Creation Incident of sovereignty

Originates from wof contractinparties

Object Carrying out of sovereign as well asgovernmentalfunctions affectingeven persons notbound by the contract

Obligations imposeonly upon thpersons who entereinto the contract

SubjectMatter

Tenure, duration,continuity

Limited duration

Scope Duties that aregenerally continuingand permanent

Duties are vespecific to thcontract

Whereduties aredefined

The law Contract

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6. Public Office v. Public Contract

7. There is no vested right to public office.

GENERAL RULE: A public office, being a

mere privilege given by the state, does notvest any rights in the holder of the office.This rule applies when the law is clear.

EXCEPTION: When the law is vague, the

persons holding of the office is protectedand he should not be deprived of his office.

A public office cannot be regarded as theproperty of the incumbent and that apublic office is not a public contract.Although there is a vested right to an

office, which may not be disturbed bylegislation, yet the incumbent has, in asense, a right to his office. If that right isto be taken away by statute, the termsshould be clear (Segovia v. Noel).

8. Public Office is not property.

A public office is not the property of the

public officer within the meaning of the dueprocess clause of the non-impairment of

the obligation of contract clause of theConstitution.

Exceptions:

- In quo warranto proceedings relatingto the question as to which of 2persons is entitled to a public office

- In an action for recovery of compensation accruing by virtue of thepublic office

Due process is violated only if an office is

considered property. However, a publicoffice is not property within theconstitutional guaranties of due process. Itis a public trust or agency. As publicofficers are mere agents and not rulers ofthe people, no man has a proprietary orcontractual right to an office (Cornejo v.Gabriel).

Abeja v. Tanada

Public office being personal, thedeath of a public officer terminates hisright to occupy the contested office andextinguishes his counterclaim for damages.His widow and/or heirs cannot besubstituted in the counterclaim suit.

9. Creation of Public Office

Modes of Creation of Public Office

- by the Constitution- by statute / law

- by a tribunal or body to which thepower to create the office has been

delegated

Scope and Extent of Power of

Legislature

- GENERAL RULE: The creation of apublic office is primarily a legislativefunction.

- Exceptions:

o where the offices are createdby the Constitution;

o where the Legislature

delegates such power.

Delegation of Power to Create Public

Office- Where an office is created pursuant to

illegally delegated powers, the officewould have no existence.

U.S.T. v. Board of Tax Appeals

The authority given to the

President to "reorganize within one yearthe different executive departments,bureaus and other instrumentalities of theGovernment" in order to promote efficiencyin the public service is limited in scope andcannot be extended to other matters not

embraced therein. Therefore, an executiveorder depriving the Courts of First Instanceof jurisdiction over cases involvingrecovery of taxes illegally collected is nulland void, as Congress alone has the"power to define, prescribe and apportionthe jurisdiction of the various courts."

10. Methods of Organizing Offices Single-head: one head assisted by

subordinates. Swifter decision and actionbut may sometimes be hastily made.

Board System: collegial body in

formulating polices and implementingprograms. Mature studies anddeliberations but may be slow inresponding to issues and problems.

11. Modification and Abolition of PublicOffice

GENERAL RULE: The power to create an

office includes the power to modify orabolish it. (i.e., this is generally alegislative function)

EXCEPTIONS:

o Where the Constitution prohibits

such modification / abolition;

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o Where the Constitution gives the

people the power to modify orabolish the office

RULE on Abandonment: When a public

official voluntarily accepts an appointmentto an office newly created by law -- whichnew office is incompatible with the former-- he will be considered to have abandonedhis former office.

Exception: When the non-acceptance

of the new appointment would affectpublic interest, and the public official isthereby constrained to accept.

Ocampo v. Secretary of Justice

The legislative power to create acourt carries with it the power to abolish it.When the court is abolished, any unexpiredterm is abolished also.

Zandueta v. De la Costa

RULE: When a public official voluntarily

accepts an appointment to an office newlycreated by law -- which new office isincompatible with the former -- he will beconsidered to have abandoned his formeroffice.

Exception: When the non-acceptance ofthe new appointment would affect publicinterest, and the public official is therebyconstrained to accept.

12. Estoppel to Deny Existence of Office

When a person has acted as a public

officer, esp. where he has received

public monies by virtue of his office, heis estopped from denying that he hasoccupied a public office.

B. Public Officer

1. Definition

A public officer is one who performs

public functions / duties of governmentby virtue of direct provision of law,popular election, or appointment bycompetent authority. His duties involvethe exercise of discretion in theperformance of the functions of thegovernment, and are not of a merelyclerical or manual nature.

The most important characteristic which

distinguishes an office from anemployment is that the creation andconferring of an office involves a

delegation to the individual of some ofthe sovereign functions of government,

to be exercised by him for the benefit ofthe public, and that the same portion ofthe sovereignty of the country, eitherlegislative, judicial, or executive,attaches, for the time being, to beexercised for the public benefit (Laurel vDesierto, April 12, 2002)

When used with reference to a person

having authority to do a particular act orperform a particular function in theexercise of government power, officerincludes any government employee,agent, or body having authority to do theact or exercise that function (Sec. 2(14)Administrative Code)

For the purpose of applying the

provisions of the Revised Penal Code,employees, agents, or subordinateofficials, of any rank or class, whoperform public duties in the governmentor in any of its branches shall be deemedas public officers.

Illustrations:

In the case of Maniego v. People, a

laborer who was in charge of issuingsummons and subpoenas for trafficviolations in a judge's sala wasconvicted for bribery under RPC 203.The court held that even temporaryperformance of public functions issufficient to constitute a person as apublic official.

In the case of People v. Paloma, asorter and filer of money orders in theAuditor's Office of the Bureau of Postswas convicted for infidelity in thecustody of documents. The courtpointed out that the sorting and filingof money orders in the Bureau of Postsis obviously a public function or duty.

Who are not considered public officers?

Special policemen salaried

by a private entity andpatrolling only thepremises of such privateentity (Manila Terminal Co.v. CIR);

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Concession forest guards

(Martha Lumber Mill v.Lagradante);

Company cashier of a

private corporation ownedby the government(Tanchoco v. GSIS)

2. A person cannot be compelled to accept

a public office. EXCEPTIONS:

When citizens are required, under

conditions provided by law, to renderpersonal military or civil service (Sec.4, Art. II, 1987 Const.);

When a person who, having been

elected by popular election to a publicoffice, refuses without legal motive tobe sworn in or to discharge the dutiesof said office.

3. No presumption of power

A public official exercises power, not

rights. The government itself is merelyan agency through which the will of the

state is expressed and enforced. Itsofficers therefore are likewise agentsentrusted with the responsibility ofdischarging its functions. As such, thereis no presumption that they areempowered to act. There must be adelegation of such authority, eitherexpress or implied. In the absence of avalid grant, they are devoid of power(Villegas v. Subido).

C. Classification of Public Offices andPublic Officers

Creation

- Constitutional

- Statutory

Public Body Served

- National

- Local

Department of government to which their

functions pertain

Legislative

Executive Judicial

Nature of functions

Civil

Military

Exercise of Judgment or discretion

Quasi-judicial

Ministerial

Legality of Title to office

De Jure

De Facto

Compensation

Lucrative

Honorary

D. De Facto Officers

1. De Facto DoctrineIt is the principle which holds that a person,who, by the proper authority, is admitted andsworn into office is deemed to be rightfully insuch office until: (a) by judicial declaration in aproper proceeding he is ousted therefrom; or(b) his admission thereto is declared void.Its purpose is to ensure the orderly functioningof government. The public cannot afford to

check the validity of the officer's title each timethey transact with him.

2. De Facto Officer Defined

A person is de facto officer where the

duties of his office are exercised underany of the following circumstances:

- Without a known appointment orelection, but under such circumstancesof reputation or acquiescence as werecalculated to induce people, withoutinquiry, to submit to or invoke hisaction, supposing him to the be theofficer he assumed to be; or

- Under color of a known and validappointment or election, but where theofficer has failed to conform to someprecedent requirement or condition(e.g., taking an oath or giving a bond);

- Under color of a known election orappointment, void because:

o the officer was not eligible;

o there was a want of power in

the electing or appointingbody;

o there was a defect or

irregularity in its exercise;

o such ineligibility, want of

power, or defect beingunknown to the public.

Note: Such ineligibility, want ofauthority or irregularity beingunknown to the public

- Under color of an election or anappointment by or pursuant to a

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public, unconstitutional law, before thesame is adjudged to be such.

o Note: What is unconstitutional

is not the act creating theoffice, but the act by which theofficer is appointed to an officelegally existing. (Norton v.County of Shelby)

Officer De Jure v. Officer De Facto

De Jure De Facto

Requisites Existence of ade jure office;

must possessthe legalqualificationsfor the officein question;

must belawfully

chosen tosuch office;

must havequalifiedhimself toperform theduties of suchofficeaccording tothe modeprescribed bylaw.

De jure office;

Color of rightor generalacquiescenceby the public;

Actual

physicalpossession of

the office ingood faith

Basis of Authority

Right: he hasthe lawfulright / title tothe office

Reputation:Has thepossessionand performsthe dutiesunder color of

right, withoutbeingtechnicallyqualified in allpoints of lawto act

How ousted Cannot beousted.

Only by adirectproceeding(quowarranto);

notcollaterally

Validity ofofficial acts

Valid, subjectto exceptions(e.g., theywere donebeyond thescope of hisauthority,etc.)

Valid as to thepublic untilsuch time ashis title to theoffice isadjudgedinsufficient.

Rule onCompensation

Entitled tocompensationas a matter ofright;

The principleof "no work,no pay" is notapplicable tohim.

Entitled toreceivecompensationonly duringthe time whenno de jureofficer isdeclared;

He is paidonly for actualservicesrendered byhim.

Officer De Facto v. Intruder

De Facto Intruder

Nature Officer underany of the 4circumstancesdiscussedunder Part II(above).

One whotakespossession ofan office andundertakes toact officiallywithout anyauthority,

either actualor apparent

Basis of authority

Color of rightor title tooffice

None. He hasneither lawfultitle nor colorof right or titleto office.

Validity of"official" acts

Valid as to thepublic untilsuch time as

his title to theoffice isadjudgedinsufficient

Absolutelyvoid; theycan be

impeached atany time inanyproceeding(unless anduntil hecontinues toact for so long

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a time as toafford apresumptionof his right toact)

Rule oncompensation

Entitled toreceivecompensationonly during

the time whenno de jureofficer isdeclared;

He is paidonly for actualservicesrendered byhim.

Not entitled tocompensationat all.

An intruder / usurper ripen into a de

facto officer. With the passage of time,

a presumption may be created in theminds of the public that the intruderhas a right to act as a public officer.

Good faith on the part of the public is a

factor in the ripening of intruder statusinto de facto status.

3. Elements of a De Facto Officership(1) De jure office(2) Color of right or generalacquiescence by the public;(3) Actual physical possession of theoffice in good faith

Examples of those not considered as De FactoOfficers

A judge who has accepted an

appointment as finance secretary andyet renders a decision after havingaccepted such appointment (Luna v.Rodriguez);

A judge whose position has already

been abolished by law, and yetpromulgates a decision in a criminalcase after the abolition and over theobjection of the fiscal (People v. So)

4. Office created under anunconstitutional statute

The prevalent view is that a person

appointed or elected in accordance with a

law later declared to be unconstitutionalmay be considered de facto at least

before the declaration of unconstitutionality.

5. Legal Effect of Acts of De Facto Officers

As regards the officers themselves: A

party suing or defending in his own rightas a public officer must show that he is

an officer de jure. It is not sufficient thathe be merely a de facto officer.

As regards the public and third persons:

The acts of a de facto officer are valid asto third persons and the public until histitle to office is adjudged insufficient.RATIONALE: For the protection of thepublic

Official Acts of De Facto Officers not

subject to collateral attack

RULE: The title of a de facto officer

and the validity of his acts cannot becollaterally questioned in proceedingsto which he is not a party, or which

were not instituted to determine thevery question.

REMEDY: Quo warranto proceedings

o Who may file:

The person who claims to beentitled to the office;

The Republic of thePhilippines, represented by

the Solicitor-General; or

a public prosecutor

6. Liabilities of De Facto Officers

The liability of a de facto officer is

generally held to be the same degree ofaccountability for official acts as that of ade jure officer.

The de facto officer may be liable for all

penalties imposed by law for any of thefollowing acts:

usurping or unlawfully holding office;

exercising the functions of public office

without lawful right;

not being qualified for the public office

as required by law.

The de facto officer cannot excuse his

responsibility for crimes committed in hisofficial capacity by asserting his de facto

status.

7. Right to Compensation of De FactoOfficer

GENERAL RULE: A de facto officer cannot

maintain an action to recover the salary,fees or other emoluments attached to

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the office, even though he has performedthe duties thereof on the theory that the

acts of a de facto officer as far as hehimself is concerned are void.The rightful incumbent of a public officemay recover from an officer de facto thesalary received by the latter during thetime of his wrongful tenure, even thoughhe entered into the office in good faithand under color of title (Monroy v CA)

EXCEPTION

Where there is no de jure public officer,the officer de facto who in good faithhas had possession of the office andhas discharged the duties pertainingthereto, is legally entitled to theemoluments of the office.

One who becomes a public officer defacto without bad faith on his part,and who renders the servicesrequired of the office, may recoverthe compensation

Gen. Manager, Philippine Ports Authorityv. Monserate (April 17, 2002)

A de facto officer, not having goodtitle, takes the salaries at his risk and mustaccount to the de jure officer for whateversalary he received during the period of hiswrongful tenure. In fine, the rule is thatwhere there is a de jure officer, a de factoofficer, during his wrongful incumbency, isnot entitled to the emoluments attached tothe office, even if he occupied the office ingood faith.

However, this rule was not squarelyapplied in this case since the de jure officerassumed another position under protest,for which she received compensation.Thus, while her assumption to the saidposition and her acceptance of thecorresponding emoluments cannot beconsidered as an abandonment of herclaim to her rightful office, she cannotrecover full back wages for the periodwhen she was unlawfully deprived thereof.She is only entitled to back paydifferentials between the salary rates for

the lower position she assumed and theposition she is rightfully entitled to.

III. ELIGIBILITY AND QUALIFICATIONS

A. Definition

Eligibility: endowment / requirement /

accomplishment that fits one for a publicoffice.

Qualification: endowment / act which a

person must do before he can occupy apublic office.

Note: Failure to perform an act requiredby law could affect the officers title tothe given office. Under BP 881, the office

of any elected official who fails or refusesto take his oath of office within sixmonths from his proclamation shall, shallbe considered vacant unless said failureis for cause or causes beyond his control.

B. Power to Prescribe Qualifications

GENERAL RULE: Congress is empowered

to prescribe the qualifications for holdingpublic office.

Restrictions on the Power of Congress to

Prescribe Qualifications:

Congress cannot exceed its

constitutional powers;

Congress cannot impose conditions ofeligibility inconsistent with

constitutional provisions;

The qualification must be germane to

the position ("reasonable relation"rule);

Congress cannot prescribe

qualifications so detailed as topractically amount to making anappointment. (Legislativeappointments are unconstitutional andtherefore void for being a usurpation ofexecutive power.);

Where the Constitution establishesspecific eligibility requirements for aparticular constitutional office, theconstitutional criteria are exclusive,and Congress cannot add to themexcept if the Constitution expressly orimpliedly gives the power to setqualifications.

In the absence of constitutional

inhibition, Congress has the same rightto provide disqualifications that it has toprovide qualifications for office.

Examples of legislative enactments

which are tantamount to legislativeappointments:

Extensions of the terms of office of the

incumbents;

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The People's Court Act, which provided

that the President could designateJudges of First Instance, Judges-at-large of First Instance or CadastralJudges to sit as substitute Justices ofthe Supreme Court in treason caseswithout them necessarily having topossess the required constitutionalqualifications of a regular SupremeCourt Justice. (Vargas v. Rilloraza);

A proviso which limits the choices of

the appointing authority to only oneeligible, e.g. the incumbent Mayor ofOlongapo City (Flores v. Drilon);

A legislative enactment abolishing a

particular office and providing for theautomatic transfer of the incumbentofficer to a new office created(contemplated in Manalang v.Quitoriano);

A provision that impliedly prescribes

inclusion in a list submitted by the

Executive Council of the Phil. MedicalAssociation as one of the qualificationsfor appointment; and which confinesthe selection of the members of theBoard of Medical Examiners to the 12persons included in the list (Cuyegkeng

v. Cruz) ;

Manalang v. Quitoriano

Congress cannot either appoint apublic officer or impose upon the Presidentthe duty to appoint any particular personto an office. The appointing power is the

exclusive prerogative ofthe President, uponwhich no limitations may be imposed byCongress, except those resulting from:

(1) the need of securing theconcurrence of the Commissionon Appointments; and

(2) the exercise of the limitedlegislative power to prescribethe qualifications to a givenappointive office.

Cuyegkeng v. Cruz

The power of appointment vestedin the President by the Constitutionconnotes necessarily a reasonable measureof freedom, latitude, or discretion in the

exercise of the power to chooseappointees.

Flores v. Drilon

Where only one can qualify for theposts in question, the President isprecluded from exercising his discretion tochoose whom to appoint. Such supposedpower of appointment, sans the essential

element of choice, is no power at all andgoes against the very nature itself ofappointment.

C. Time of Possession of Qualifications

At the time specified where the time is

specified by the Constitution or law.

Where the Constitution or law is silent,

there are 2 views:1. qualification must be at the time of

commencement of term orinduction into office;

2. qualification / eligibility must existat the time of the election orappointment

Eligibility is a continuing nature, andmust exist throughout the holding of thepublic office. Once the qualifications arelost, then the public officer forfeits theoffice.

Castaneda v. Yap

Knowledge of ineligibility of acandidate and failure to question suchineligibility before or during the election isnot a bar to questioning such eligibilityafter such ineligible candidate has won andbeen proclaimed. Estoppel will not apply in

such a case.

Frivaldo v. COMELEC

The citizenship requirement mustbe met only on election day. While theLocal Government Code requires residencyof one year immediately preceding electionday and the prescribed age on electionday, no date is specified for citizenship.The purpose of the citizenship requirementis to ensure leaders owing allegiance to no

other country. Such purpose is notthwarted, but instead achieved by

construing the requirement to apply attime of proclamation and at the start of theterm.

D. Construction of Restrictions onEligibility

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There is a presumption IN FAVOR OF

ELIGIBLITY of one who has been electedor appointed to public office.

The right to public office should be

strictly construed against ineligibility.

E. Qualifications usually Prescribed

1. For President (Sec. 2, Art. VI,Constitution) and Vice President (Sec. 3,

Art. VII, Constitution) Natural-born citizen

40 years old on day of election

resident of the Philippines for at least 10

yrs immediately preceding election day

2. For Senator (Sec. 3, Art. VI,Constitution)

Natural-born citizen


able to read and write

registered voter

resident of the Philippines for not lessthan two years immediately precedingelection day

3. For Congressmen (Sec. 6, Art. VI,

Constitution)



able to read and write

registered voter in district in which he

shall be elected

resident thereof for not less than one

year immediately preceding election day

4. Supreme Court Justice Natural born citizen

at least 40 years old

15 years or more a judge or engaged in

law practice

of proven CIPI (competence, integrity,

probity and independence)

5. Civil Service Commissioners (Sec. 1 [1],Art. IXB. Constitution)


35 years old at time of appointment

proven capacity for public administration

not a candidate for any elective positionin elections immediately precedingappointment

6. COMELEC Commissioners (Sec. 1[1],Art. IXC)



college degree holder

not a candidate for elective position in

election immediately precedingappointment

chairman and majority should be

members of the bar who have beenengaged in the practice of law for at least10 years

7. COA Commissioners Natural-born citizen


CPA with >10 year of auditing experience

or

Bar member engaged in practice of law

for at least 10 years

Not have been candidates for elective

position in elections immediatelypreceding appointment

Cayetano v. Monsod

Practice of law means any activity,in or out of court, which requires theapplication of law, legal procedure,knowledge, training and experience.Generally, to practice law is to give noticeor render any kind of service whichrequires the use in any degree of legalknowledge or skill.

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Aquino v. COMELEC

Residency of not less than 1 yearprior to the elections for the position ofCongressman. In election law, residencerefers to domicile, i.e. the place where aparty actually or constructively has hispermanent home, where he intends toreturn. To successfully effect a change ofdomicile, the candidate must prove an

actual removal or an actual change ofdomicile. Here, it was held that leasing acondominium unit in the district was not toacquire a new residence or domicile butonly to qualify as a candidate.

Marcos v. COMELEC

Domicile, which includes the twinelements of actual habitual residence, andanimus manendi, the intention of remaining there permanently. It was heldthat domicile of origin is not easily lost,and that in the absence of clear and

positive proof of a successful change ofdomicile, the domicile of origin should bedeemed to continue.

F. Religious Test or Qualification

No religious test shall be required for the

exercise of civil or political rights. (Art.III, Sec. 5, 1987 Constitution)

G. Disqualifications to Hold Public Office

IN GENERAL: Individuals who lack any

of the qualifications prescribed by theConstitution or by law for a public officeare ineligible or disqualified from holdingsuch office.

General Disqualifications under the

Constitutiona) No candidate who lost in an

election, shall, within one yearafter such election, be appointed toany office in Government (Art. IX-BSec. 6)

b) No elective official shall be eligiblefor appointment or designation inany capacity to any public office or

position during his tenure (Art. IX-B Sec. 7(1))c) Unless otherwise allowed by law or

by the primary functions of hisposition, no appointive official shallhold any other position inGovernment (Art. IX-B Sec 7 (2))

Note: In National Amnesty Commissionv COA, when another office is heldby a public officer in an ex officiocapacity, as provided by law and asrequired by the primary functionsof his office, there is no violation.

Specific Disqualifications under the

Constitution

1) The President, Vice President, theMembers of the Cabinet and theirdeputies or assistants shall not,unless otherwise provided in theConstitution, hold any other office oremployment during their tenure (Art.VII, Sec. 13)

2) No Senator or Member of the House

of Representatives may hold anyother office or employment in theGovernment, or any subdivision,agency or instrumentality thereof,including government-owned orcontrolled corporations or their

subsidiaries, during his term withoutforfeiting his seat. Neither shall he beappointed to any office which mayhave been created or theemoluments thereof increased duringthe term for which he was elected(Art. VI, Sec 13)

3) The Members of the Supreme Courtand of other courts established bylaw shall not be designated to anyagency performing quasi-judicial oradministrative functions (Art. VIII,Sec. 12)

4) No Member of a Constitutional

Commission shall, during his tenure,hold any other office or employment.(Art. IX-A, Sec. 2)

5) Previous disqualification applies tothe Ombudsman and his Deputies(Art. XI, Sec. 8)

6) The Ombudsman and his Deputiesshall not be qualified to run for anyoffice in the election immediatelysucceeding their cessation from office(Art. XI, Sec. 11)

7) Members of ConstitutionalCommissions, the Ombudsman andhis Deputies must not have been

candidates for any elective positionin the elections immediatelypreceding their appointment (Art IX-B, Sec. 1; Art. IX-C, Sec. 1; Art. IX-D, Sec. 1; Art XI, Sec. 8)

8) Members of ConstitutionalCommissions, the Ombudsman and

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his Deputies are appointed to a termof seven (7) years, without

reappointment (Sec. 1(2) of Arts. IX-B, C, D; Art. XI, Sec. 11)

The spouse and relatives byconsanguinity or affinity within thefourth civil degree of the Presidentshall not during his tenure beappointed as Members of theConstitutional Commissions, or the

Office of the Ombudsman, or asSecretaries, Undersecretaries,chairmen or heads of bureaus oroffices, including government owned-or controlled corporations (Art. VIII,Sec. 13)

OTHER DISQUALIFICATIONS

1. Mental or physical incapacity

2. Misconduct or crime: persons convictedof crimes involving moral turpitude areusually disqualified from holding public

office.

3. Impeachment

4. Removal or suspension from office:where there is no constitutional orstatutory declaration of ineligibility forsuspension or removal from office, thecourts may not impose the disability

5. Previous tenure of office: for example,a person who has been elected and hasheld the office of President is

absolutely disqualified for reelection

6. Consecutive terms:a. Vice-President = 2 consecutive

termsb. Senator = 2 consecutive termsc. Representative = 3 consecutive

termsd. Elective local officials = 3

consecutive terms

i. Voluntary renunciation of theoffice for any length of timeshall not be considered as an

interruption in the continuityof his service for the full termfor which he was elected.

7. Holding more than one office: toprevent offices of public trust from

accumulating in a single person, and toprevent individuals from deriving,

directly or indirectly, any pecuniarybenefit by virtue of their dual position-holding

i. Civil Liberties Union v. ExecutiveSecretary

1. Section 7, Article IX-B of the

Constitution is meant to lay downthe general prohibition againstthe holding of multiple offices oremployment in the governmentsubsuming both elective andappointive public officials, unlessotherwise allowed by law or bythe primary functions of hisposition. This provision shouldnot be applied to the President,Vice-President and cabinetmembers since the Constitution,in Section 13, Article VII,prescribes a stricter prohibition

on the mentioned officials.

2. To apply the exceptions found inSection 7, Article IX-B to Section

13, Article VII would obliteratethe distinction set by the framersof the Constitution as to thehigh-ranking officials of theExecutive branch.

3. However, the prohibition underSection 13, Article VII is not tobe interpreted as coveringpositions held without additional

compensation in ex-officiocapacities as provided by law andas required by the primaryfunctions of the concernedofficials office.

8. Relationship with the appointing power

i. Exceptions to rule on nepotism:a. persons employed in a confidential

capacityb. teachersc. physiciansd. members of the Armed Forces of

the Philippines

9. Office newly created or theemoluments of which have beenincreased

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10. Being an elective official: electiveofficials are not eligible forappointment or designation in anycapacity to any public office or positionduring his tenure; he may beappointed provided he forfeits his seat

11. Having been a candidate for anyelective position

12. Under the Local Government Code

a. Those sentenced by final judgmentfor an offense involving moralturpitude or for an offense

punishable by 1 year or more ofimprisonment, within 2 years afterserving sentence;

b. Those removed from office as aresult of an administrative case;

c. Those convicted by final judgmentfor violating the oath of allegiance tothe Republic;

d. Those with dual citizenship;

e. Fugitive from justice in criminal ornon-political cases here or abroad;

f. Permanent residents in a foreigncountry or those who have acquiredthe right to reside abroad andcontinue to avail of the same rightafter the effectivity of the LocalGovernment Code;

g. The insane or feeble-minded.

IV. FORMATION OF OFFICIAL RELATION

A. Modes of Commencing Official Relation

Election

Appointment

Others:

Succession by operation of law;

Direct provision of law, e.g. ex-officio

officers

B. Election

Selection or designation by a popular

vote

C. Appointment

1. Definition

Designation Appointment

Definition Imposition of additionalduties uponan existing

Selection of anindividual tooccupy acertain public

office office by oneauthorized bylaw to makesuch selection

Extent of Powers

Limited Comprehensive

Security of

tenure?

No. Yes.

Whendeemedabandonmentof prior office

Assumptionof adesignatedposition isnot deemedabandonmentof the 1stposition

Assumption ofa 2ndappointiveposition isusually deemedabandonmentof the firstoffice.

2. Nature of Appointing Power

The power to appoint is intrinsically an

executive act involving the exercise ofdiscretion. (Concepcion v. Paredes)

The power and prerogative to a vacant

position in the civil service is lodged withthe appointing authority.

3. Classification of Appointments

Permanent : extended to a person

possessing the requisite qualifications,including the eligibility required, for theposition, and thus protected by theconstitutional guaranty of security oftenure

- lasts until they are lawfullyterminated

Temporary : an acting appointment; it is

extended to one who may not possessthe requisite qualifications or eligibilityrequired by law for the position, and isrevocable at will, w/o the necessity ofjust cause or a valid investigation

- lasts until a permanent appointmentis issued

Mere fact that a position belongs to the

Career Service of the Civil ServiceCommission does not automaticallyconfer security of tenure. Where theappointee doe not possess thequalifications for the position, theappointment is temporary and may beterminated at will

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Acceptance of a temporary appointment

results in the termination of officialrelationship with former position.(Romualdez III v CSC)

A mere designation does not confer

security of tenure, as the persondesignated occupies the position only inan acting capacity (Sevilla v CA)

Where the appointment is subject to

conditions, it is not permanent. However,where the temporary appointment is fora fixed period, the appointment may berevoked only at the expiration of theperiod or if revocation made before suchexpiration, it must be for a valid cause.

4. Steps in Appointing Process

For Appointments which require

confirmation:

Regular Appointments1. Nomination by the President2. Confirmation by the Commission on

Appointments3. Issuance of the commission4. Acceptance by the appointee

Ad-Interim Appointments1. Nomination by the President2. Issuance of the commission3. Acceptance by the appointee4. Confirmation by the Commission on

Appointments

For Appointments which do not require

confirmation1. Appointment by the appointing

authority2. Issuance of the commission3. Acceptance by the appointee

Note: Where the appointment is to thecareer service of the Civil Service, attestationof the Civil Service Commission is required

3. Presidential Appointees

The following shall be nominated and

appointed by with the consent of theCommission on Appointments

- Heads of the executive departments

(Art. VII, Sec. 16, 1987 Const.);- Ambassadors (ibid);- Other public ministers and consuls

(ibid);- Officers of the armed forces from the

rank or colonel or naval captain (ibid);

- Other officers whose appointments arevested in him by the Constitution

(ibid), including ConstitutionalCommissioners (Art. IX-B, Sec. 1 (2)for CSC; Art. IX-C, Sec. 1 (2) forCOMELEC; Art. IX-D, Sec. 1 (2) forCOA).

The following can be appointed by the

President without the need for CA

approval All other officers of the government

whose appointments are not otherwiseprovided for by law;

Those whom he may be authorized by

law to appoint;

Members of the Supreme Court;

Judges of lower courts;

Ombudsman and his deputies

Kinds of Presidential Appointments

Regular: made by the President whileCongress is in session after thenomination is confirmed by theCommission of Appointments, andcontinues until the end of the term.Ad interim: made while Congress is notin session, before confirmation by theCommission on Appointments;immediately effective and ceases to bevalid if disapproved or bypassed by theCommission on Appointments. This is apermanent appointment and it beingsubject to confirmation does not alter itspermanent character.

-

o Recess appointment power keeps

in continuous operation thebusiness of government whenCongress is not in session.

o The appointment shall cease to be

effective upon rejection by theCommission on Appointments, or ifnot acted upon, at theadjournment of the next session,regular or special, of Congress.

Matibag v. Benipayo (April 2, 2002)

An ad interim appointment is a

permanent appointment because it takeseffect immediately and can no longer bewithdrawn by the President once theappointee has qualified into office. Thefact that it is subject to confirmation by theCommission on Appointments does notalter its permanent character. The

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Constitution itself makes an ad interimappointment permanent in character by

making it effective until disapproved by theCommission on Appointments or until thenext adjournment of Congress.

An ad interim appointment isdistinguishable from an actingappointment which is merely temporary,good until another permanent appointment

is issued.

Said appointment is also distinguishedfrom the exercise of presidentialprerogative requiring confirmation by theCommission on Appointments whenCongress is in session. In the latter, thePresident nominates, and only upon theconsent of the Commission onAppointments may the person thus namedassume office. It is not so with referenceto ad interim appointments, as they takeeffect at once. The individual chosen maythus qualify and perform his function

without loss of time.

In this case, the ad interimappointments of the COMELEC

Commissioners, being permanentappointments, do not violate theConstitutional prohibition on temporary oracting appointments of COMELECCommissioners.

Moreover, the failure of theCommission on Appointments to confirmthe ad interim appointment does notamount to a disapproval by the said

Commission. There is no dispute that anad interim appointee disapproved by theCOA can no longer be extended a newappointment. On the other hand, a by-passed appointee, or one whoseappointment has not been finally actedupon the merits by the COA, may beappointed again by the President.

D. Qualification Standards andRequirements under the Civil Service Law

1. Qualification Standards

Express the minimum requirements for aclass of positions in terms of education,training and experience, civil serviceeligibility, physical fitness, and otherqualities required for successfulperformance. (Sec. 22, Book V, EO 292)

It shall be the responsibility of the

departments and agencies to establish,administer and maintain the qualificationstandards on a continuing basis as anincentive to career advancement. (Sec.7, Rule IV, Omnibus Rules)

Their establishment, administration, and

maintenance shall be the responsibility ofthe department / agency, with theassistance and approval of the CSC and

in consultation with the Wage andPosition Classification Office (ibid)

Shall be established for all positions in

the 1st and 2nd levels (Sec. 1, Rule IV,

Omnibus Rules)

2. Political Qualifications for an Office(i.e., membership in a political party)

GENERAL RULE: Political qualifications

are not required for public office.- EXCEPTIONS:

o Membership in the electoral

tribunals of either the House ofRepresentatives or Senate (Art. VI,

Sec. 17, 1987 Const.);o Party-list representation;

o Commission on Appointments;

o Vacancies in the Sanggunian (Sec.

45, Local Government Code)

3. Property Qualifications

In the cases of Maquera v. Borra and

Aurea v. COMELEC, the Supreme Courtheld that property qualifications areinconsistent with the nature and essenceof the Republican system ordained in ourConstitution and the principle of social

justice underlying the same. The Courtreasoned out that "sovereignty resides inthe people and all government authorityemanates from them, and this, in turn,implies necessarily that the right to voteand to be voted shall not be dependentupon the wealth of the individualconcerned. Social justice presupposesequal opportunity for all, rich and pooralike, and that, accordingly, no personshall, by reason of poverty, be denied thechance to be elected to public office."

4. Citizenship

Aliens not eligible to public office

5. Effect of removal of qualificationsduring the term

The officer must be terminated.

6. Effect of pardon upon thedisqualification to hold public office

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Sec. 9, Chapter II, Title III Book IV of

the Admin Code provides that allprovincial and city prosecutors and theirassistants shall be appointed by thePresident upon recommendation of theSecretary of Justice. The phrase uponrecommendation of the Sec. of Justiceshould be interpreted to be a mereadvise, which is persuasive in characterbut is not binding or obligatory upon the

person to whom it is made.

F. Effectivity of Appointment

An appointment takes effect immediately

upon its issuance by the appointingauthority. (Rule V, Sec. 10, OmnibusRules).

G. Effects of a complete, final andirrevocable appointment

GENERAL RULE: An appointment, once

made, is irrevocable and not subject toreconsideration.

A completed appointment vests a legalright. It cannot be taken away EXCEPTfor cause, and with previous notice andhearing (due process).

Qualification: Where the assent,

confirmation, or approval of some otherofficer or body is needed before theappointment may be issue and bedeemed complete.

EXCEPTIONS:

- When the appointment is an absolutenullity (Mitra v. Subido);

- When there is fraud on the part of theappointee (Mitra v. Subido);

- Midnight appointmentso A President or Acting President is

prohibited from makingappointments 2 months

immediately before the nextpresidential elections and up to theend of his term. (Art. VII, Sec. 15,1987 Const.)

o Exception: Temporary

appointments to executivepositions when continuedvacancies therein will prejudicepublic service or endanger public

safety.

H. Jurisdiction of the Civil ServiceCommission (CSC)

The following are within the exclusivejurisdiction of the CSC: Disciplinary casesand cases involving personnel action

affecting the employees of the CivilService, including appointment through

certification, promotion, transfer,reinstatement, reemployment, detail,reassignment, demotion and separation,as well as employment status andqualification standards.

Includes the authority to recall anappointment which has been initiallyapproved when it is shown that the same

was issued in disregard of pertinent CSClaws, rules and regulations.

The CSC is not a co-manager or surrogateadministrator of government offices andagencies. Its authority is limited toapproving or reviewing appointments.

I. Appointments to the Civil ServiceSCOPE: Embraces all branches,

subdivisions, instrumentalities andagencies of the Government, includingGOCCs with original charters (Art. IX-BSec. 2(1), Constitution)

Classes of Service

a) Career Service Entrance based onmerit and fitness determined by

competitive examinations, or based onhighly technical qualifications,opportunity for advancement to highercareer positions and security of tenure.

b) Non-career Service Entrance onbases other than those of the usualtestes. Tenure limited to a periodspecified by law or which is coterminouswith the appointing authority or the

duration of a particular project. Ex.elective officials, Department Heads andMembers of Cabinet

Requisites:

(i) Shall be made only according tomerit and fitness to be determined,as far as practicable

(ii) By competitive examination

Exempt from the competitive

examination requirements areappointments to positions which are:

Policy determining - in which theofficer lays downprincipal or fundamentalguidelines or rules; orformulates a method of

action for government orany of its subsidiaries

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Primarily Confidential denotingnot only confidence in

the aptitude of theappointee for the dutiesof the office but primarilyclose intimacy whichensures freedom ofintercourse withoutembarrassment orfreedom from misgivings

or betrayals onconfidential matters ofthe state(Proximity Rule asenunciated in De losSantos v Mallare)-

Highly Technical requirespossession of technicalskill or training in asuperior degree. ex. CityLegal Officer

NOTE: It is the nature of the

position which determineswhether a position is policydetermining, primarilyconfidential or highly technical

Other Personnel ActionsPromotion is a movement from one position to

another with increase in duties andresponsibilities as authorized by law andusually accompanied by an increase in pay.

(i) Next-in-rank rule . The person nextin rank shall be given preference in

promotion when the positionimmediately above his is vacated.But the appointing authority stillexercises discretion and is notbound by this rule, although he isrequired to specify the specialreason or reasons for notappointing the officer next-in-rank

(ii) Automatic Reversion rule Allappointments involved in a chain ofpromotions must be submittedsimultaneously for approval by the

Commission. The disapproval of

the appointment of a personproposed to a higher positioninvalidates the promotion of thosein the lower positions andautomatically restores them totheir former positions. However,

the affected persons are entitled topayment of salaries for services

actually rendered at a rate fixed intheir promotional appointments(Sec. 13 of the Omnibus RulesImplementing EO 292) For this ruleto apply, the following mustconcur:

a) there must be aseries of

promotionsb) all promotional

appointments aresimultaneouslysubmitted to theCommission forapproval

c) the Commissiondisapproves theappointment of aperson to a higherposition.

Appointment through Certification is issued to

a person who has been selected from a listof qualified persons certified by the CivilService Commission from an appropriateregister of eligibles, and who meets all the

qualifications prescribed for the position

Transfer is a movement from one position toanother which is of equivalent rank, levelor salary without break in service. Thismay be imposed as an administrativeremedy.

- An unconsented transfer violatessecurity of tenure. However this doesnot apply to a holder of a temporary

appointment or to Career ExecutiveService Personnel whose status andsalaries are based on their ranks andnot on the positions to which they areassigned

Reinstatement Any person who has beenpermanently appointed to a position inthe career service and who has, throughno delinquency or misconduct, beenseparated therefrom, may be reinstatedto a position in the same level for whichhe is qualified.- It is technically the issuance of a

new appointment and is discretionaryon the part of the appointing power; itcannot be the subject of an applicationfor a writ of mandamus- However, the bestowal of executiveclemency completely obliterates theadverse effects of the administrative

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decision which found him guilty ofdishonesty. This signifies that

petitioner need no longer apply forreinstatement as he is restored ipsofacto upon the issuance of clemency

Detailis the movement of an employee fromone agency to another without theissuance of an appointment, and shallbe allowed only for a limited period in

the case of employees occupyingprofessional, technical and scientificpositions. It is temporary in nature.

Reassignment An employee may bereassigned from one organizational unitto another in the same agency, providedthat such reassignment shall not involvea reduction in rank, status or salary. It isa management prerogative of the CSCand any dept or agency embraced in theCivil Service and does not constituteremoval without cause.- But like detail, the reassignment

should have a definite date or duration.Otherwise, it is tantamount to afloating assignment, thus a diminutionin status or rank

Reemployment Names of persons who

have been appointed permanently topositions in the career service and whohave been separated as a result ofreduction in force and/or reorganization,shall be entered in a list from whichselection from reemployment shall bemade.

V. ASSUMPTION AND TERM OR TENURE OFOFFICE

A. Qualification to Office

1. Appointment and Qualification to OfficeDistinguished

Appointment is the act of being designated

to a public office by the appointingauthority.

Qualification is the act of signifying one's

acceptance of the appointive position. This

generally consists of the taking /subscribing / filing of an official oath, andin certain cases, of the giving of an officialbond, as required by law. (Mechem)

Borromeo v. Mariano

A judge may not be made a judgeof another district without his consent.

Appointment and qualification to office areseparate and distinct things. Appointmentis the sole act of the appointee. There isno power which can compel a man toaccept the office.

2. Effect of Failure to Qualify

Failure to qualify is deemed evidence ofrefusal of the office.

It is a ground for removal

- If qualification is a condition precedent,failure to qualify ipso facto deemedrejection of the office

- If not condition precedent, failure isnot ipso facto rejection

Justifiable reasons for delay in qualifying:

sickness, accident, and other fortuitousevents that excuse delay.

The Omnibus Election Code provides that

the officer must qualify (i.e., take hisoath of office and assume office) within 6

months from proclamation. Otherwise,the position will be deemed vacant.

- Exception: If the non-assumption ofoffice is due to a cause beyond hiscontrol.

Qualification is significant because it

designates when security of tenure begins.

B. Oath of Office

1. Definition

An oath is an outward pledge whereby

one formally calls upon God to witness tothe truth of what he says or to the factthat he sincerely intends to do what hesays.

It is not indispensable. It is a mere

incident to the office and constitutes no

part of the office itself. However, thePresident, Vice-President and ActingPresident are required by theConstitution (Art. VII, Sec. 5) to take anoath or affirmation before entering intothe execution of their office. Such oath-taking is mandatory.

However, as per Nachura Only when

the public officer has satisfied the

prerequisite of taking his oath of officecan his right his position be consideredplenary and complete. Until then, theholdover officer is the rightful occupant(Lecaroz v Sandiganbayan)

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2. Persons Authorized to Administer Oaths

Notaries public;

Judges;

Clerks of court;

Secretary of House / Senate;

Secretary of Exec. Departments;

Bureau Directors;

Register of Deeds;

Provincial governors;

City mayors;

Municipal mayors;

Any other officer in the service of the

government of the Philippines whoseappointment is vested in the President

Any other officer whose duties, as defined

by law or regulation, require presentationto him of any statement under oath

3. Persons Obliged to Administer Oaths inAll Instances,

Notaries public

Municipal judges

Clerks of court

4. Time of Taking the Oath of Office

A public officer must take his oath of office

before entering upon the discharge of hisduties.

5. Requalification

If a public officer is re-elected or re-

appointed, he must take another oath and

fulfill the other condition precedents beforeassuming office. The oath and otherqualifications made prior to assumption ofhis previous office will not be valid forsubsequent terms of office.

C. Giving of Bonds

1. The Bond

It is in the nature of an indemnity bond

rather than a penal or forfeiture bond.

It is an obligation binding the sureties to

make good the officers default.

It is required not for the benefit of the

office holder, but for the protection of thepublic interest and is designed to indemnifythose suffering loss or injury by reason ofmisconduct or neglect in office.

2. Persons Required to Give Bond

Accountable public officers or those to

whom are entrusted the collection andcustody of public money;

Public ministerial officers whose actions

may affect the rights and interests ofindividuals.

3. Effect of Failure to Give Bond within thePrescribed Period

If not condition precedent, failure to give

bond merely constitutes a ground forforfeiture of the office. It is not forfeiture ofthe office ipso facto.

If condition precedent, failure to give bondwithin the prescribed period renders theoffice vacant.

D. Term and Tenure of Office

1. Term of Office and Tenure of OfficeDistinguished

2. Power of the Legislature to Fix andChange the Term of Office

Where the term is fixed by the

Constitution, Congress has no power toalter the term.- But such term of office can be

shortened or extended by the vote ofthe people ratifying a constitutionalamendment.

Where the term is not fixed, Congress may

fix the terms of officers other than those

provided for in the Constitution. Congress has the power to change the

tenure of officers holding offices created byit. However, if the term is lengthened andmade to apply to the incumbents, thiscould be tantamount to a legislativeappointment which is null and void.

3. When Term of Office Dependent upon"Pleasure of the President"

Congress can legally and constitutionally

make the tenure of certain officialsdependent upon the pleasure of thePresident. (Alba v. Evangelista)

Where the office is held at the pleasure of

the appointing power and such appointingpower can exercise the power of removalat his mere discretion, the public officermay be removed without notice or hearing.(Alba v. Evangelista)

Term of Office Tenure of Office

De jure De facto

Fixed and definite period oftime during which theofficer may claim to holdthe office as of right

Period during which incumbent actually hthe office. It mayshorter than the term.

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Needless to say, powers expressly granted

by law are within the scope of the publicoffice.

C. Territorial Extent of Powers of PublicOfficer

GENERAL RULE: Where a public officer is

authorized by law to perform the duties ofhis office at a particular place, action at a

place not authorized by law is ordinarilyinvalid. (Note: This rule is applicable to allpublic officers whose duties are essentiallylocal in nature, e.g. judges.)

EXCEPTIONS:

- Consuls;- Police officers, who may arrest persons

for crimes committed outside Philippineterritory;

- Doctrine of hot pursuit

D. Duration of Authority of Public Officers

The duration of the authority of public

officers is limited to that term during which

he is, by law, invested with the rights andduties of the office.

E. Construction of Grant of Powers

Strict construction. Grant of powers will be

construed as conferring only those powerswhich are expressly imposed or necessarilyimplied.

F. Classification of Powers

Discretionary Ministerial

Definition Acts whichrequire theexercise of reason indeterminingwhen, where,and how to

exercise thepower

Acts which areperformed in agiven state offacts, in aprescribedmanner, inobedience to

the mandate oflegal authority,without regardto or theexercise of hisown judgmentupon thepropriety orimpropriety ofthe act done(Lamb v.Phipps)

Can be Generally, NO. Generally, YES.

delegated?Exception:

When thepower tosubstitute /delegate hasbeen given

Exception:When the lawexpresslyrequires the actto beperformed bythe officer inperson and / orprohibits such

delegation

When ismandamusproper?

Only if the dutyto dosomething hasbeen delayedfor anunreasonableperiod of time.In these cases,mandamus willusually compelthe officer tomake a

decision, butwill not dictate

as to what thedecision will orshould be.

In all cases.

Is publicofficerliable?

Generally notliable

Exceptions: ifthere is fraudor malice

Liable if dutyexercisedcontrary to themannerprescribed bylaw.

1. Discretionary Power Discretion, when applied to public

functionaries, means a power or rightconferred upon them by law of actingofficially in certain circumstances,according to the dictates of their own judgment and conscience, uncontrolled bythe judgment or conscience of others.(Lamb v. Phipps)

General Rule: Mandamus will not issue to

control or review the exercise of discretionof a public officer where the law imposeson him the right or duty to exercise judgment in reference to any matter inwhich he is required to act (Aprueba v.Ganzon).

Exception:

(i) Where there is grave abuse ofdiscretion, manifest injustice orpalpable excess of authority

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equivalent to a denial of a settledright to which the petitioner is

entitled, and where there is noother plain, speedy or adequateremedy. (First Phil. Holdings Corpv Sandiganbayan)

(j) Writ may issue to compel theexercise of discretion but not thediscretion itself (BF Homes vNational Water Resources Council)

Judgment v Discretion

Judgment is a judicial function, thedetermination of a question of law. There isonly one way to be right.Discretion is the faculty conferred upon acourt or other officer which he may decidethe question either way and still be right.

2. Ministerial Power

A purely ministerial act is one which an

officer or tribunal performs in a given stateof facts, in a prescribed manner, inobedience to the mandate of legal

authority, without regard to or the exerciseof his own judgment upon the propriety orimpropriety of the act done. A ministerialact is one to which nothing is left to thediscretion of the person who must perform.It is a simple, definite duty arising underconditions admitted or proved to exist andimposed by law. It is a precise act,accurately marked out, enjoined uponparticular officers for a particular purpose.

(Lamb v. Phipps)

Lamb v. Phipps

Auditors and comptrollers, asaccounting officers, are generally regardedas quasi-judicial officers. They performmere ministerial duties only in cases wherethe sum due is conclusively fixed by law orpursuant to law. Except in such cases, theaction of the accounting officers uponclaims coming before them for settlementand certification of balances found by themto be due, is not merely ministerial but judicial and discretionary. Mandamus willtherefore not issue.

Torres v. Ribo

The powers of the Board ofCanvassers are quasi-judicial and thereforediscretionary.

Aprueba v. Ganzon

Mandamus will not issue to control orreview the exercise of discretion of a public

officer where the law imposes on him theright or duty to exercise judgment inreference to any matter in which he isrequired to act.

The privilege of operating a marketstall under license is not absolute butrevocable under an implied lease contract

subject to the general welfare clause.

Mandamus never lies to enforce theperformance of contractual obligations.

Miguel v. Zulueta

Public officers may properly becompelled by mandamus to remove orrectify an unlawful act if to do so is withintheir official competence.

G. Duties of Public Officers

1. General (Constitutional) duties ofpublic officers

a) To be accountable to the people; to

serve them with utmost responsibility,integrity, loyalty and efficiency to actwith patriotism and justice, and to leadmodest lives (Art. XI, Sec. 6)

b) To submit a declaration under oath ofhis assets, liabilities and new worthupon assumption of office and as oftenthereafter as may be required by law(Art. XI, Sec 17)

c) To owe the State and the Constitution

allegiance at all times (Art. XI, Sec.18)

2. Specific CasesThe Solicitor Generals duty to represent

the government except in criminalcases or civil cases for damages arisingfrom felony, is mandatory (Gonzales vChavez)

The government is not estopped fromquestioning the acts of its officials,more so if they are erroneous orirregular

H. Time of Execution of Powers

1. Where not indicated

Within a reasonable time

2. Where indicated

Merely directory

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Exceptions:

- When there is something in the statutewhich shows a different intent(Araphoe City v. Union Pac);

- Where a disregard of the provisions ofthe statute would injuriously affect apublic interest or public right;

- When the provision is accompanied bynegative words importing that the actsshall not be done in any other manner

or time than that designated.

I. Ratification of Unauthorized Acts

1. If act was absolutely void at the time itwas done

Cannot be ratified

2. If merely voidable

Can be ratified and rendered valid

3. Government not estopped by theunauthorized or illegal acts of officers

As between an individual and his

government, the individual cannot plead

the void act of an official to shield him fromthe demand of the government that he(the individual) fulfill an obligation whichhe has contracted with the government,after the benefits accruing to him as aresult of that obligation have been

received. The government can neither beestopped nor prejudiced by the illegal actsof its servants. (Government v. Galarosa)

Hilado v. Collector

A tax circular issued on a wrongconstruction of the law cannot give rise to

a vested right that can be invoked by ataxpayer.

I. Accountability and Responsibility ofPublic Officers and Employees

Norm of Performance of Duties: standards

of personal conduct provided for in Sec. 4,RA 6713- Commitment to public interest;- Professionalism;

- Justness and sincerity;- Political neutrality;- Responsiveness to the public;- Nationalism and patriotism;- Commitment to democracy;- Simple living

J. Prohibitions

(a) Partisan political activity No officer oremployee of the civil service shall engage,directly or indirectly, in any electioneeringor partisan political campaign. (Sec. IX-B,Sec. 5(3))

The Civil Service Law prohibits

engaging directly or indirectly in anypartisan political activity or takingpart in any election except to vote;or use the official authority to coerce

in the political activity of any personor body

Armed Force shall be insulated from

partisan politics. No member of themilitary shall engage directly orindirectly in any partisan politicalactivity, except to vote

However, this prohibition does NOT

prevent expression of views oncurrent political problems (Caltex vBonifacio)

This provision is diff from Sec. 79 BP

881 which makes it unlawful for anyperson or any political party toengage in election campaign orpartisan political activity exceptduring campaign period. Electioncampaign or partisan political activityrefers to an act designed to promotethe election or defeat of acandidate/s to public office. If donefor the purpose of enhancing thechances of aspirants for nominationfor candidacy to a public office by apolitical party, it shall not beconsidered as election campaign orpartisan political activity.

(b) Additional or double compensation. Noelective or appointive public officer oremployee shall receive additional, double,or indirect compensation unless specificallyauthorized by law, nor accept without theconsent of Congress, any presentemolument, office or title of any kind fromany foreign government (Art. IX-B, Sec. 8)

(c) Prohibition against loans. No loan,guaranty, or other form of financialaccommodation for any business purposemay be granted, directly or indirectly, by

any government-owned or controlled bankor financial institution to the ff: 1)President

2) Vice President3) Members of the Cabinet4) The Congress5) The Supreme Court

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6) The Constitutional Commissions(7) The Ombudsman

(8) To any firm to which they havecontrolling interest during their tenure

(d) Limitation on Laborers Shall not beassigned to perform clerical activities

(e) Detail or assignment No detail orreassignment shall be made within threemonths before any election without theapproval of the Comelec

(f) Nepotism All appointments made in favorof a relative (within the third civil degree ofconsanguinity or affinity) of the appointing

authority or the chief of the bureau oroffice, of the persons exercising immediatesupervision over him are prohibited. Thiscovers all appointments and designations,including subsequent personnel actions(ex. promotion, reinstatement etc).

VII. RIGHTS AND PRIVILEGES OF PUBLIC

OFFICERS

A. Right to Office

It is the right to exercise the powers of the

office to the exclusion of others.

B. Right to Salary or Compensation

1. BASIS

The legal title to the office and the fact

that the law attaches compensation to hisoffice

2. GENERAL RULES

A public officer is not entitled tocompensation for services rendered underan unconstitutional statute or provisionthereof.

- Exception: If some other statuteprovides otherwise.

If no compensation is fixed by law, the

public officer is assumed to have acceptedthe office to serve gratuitously.

After services have been rendered by a

public officer, the compensation thusearned cannot be taken away by asubsequent law. However, he cannotrecover salary for a period during which he

performed no services. One without legal title to office either by

lawful appointment or election andqualification is not entitled to recoversalary or compensation attached to theoffice.

One who intrudes into or usurps a public

office has no right to the salary oremoluments attached to the office.

3. Some Constitutional ProvisionsAffecting Salaries

No increase in the salaries of members

of Congress shall take effect until afterthe expiration of the full term of theMembers of the Senate and the House

of Representatives who approved theincrease (Art. VI, Sec 10)

Salaries of the President and Vice

President shall be fixed by law and

shall not be decreased during theirtenure. No increase shall take effectuntil after the expiration of the term ofthe incumbent during which suchincrease was approved (Art. VII, Sec.6)

The salary of members of the Judiciary

shall not be decreased during theircontinuance in office (Art. VIII, Sec.10) however, imposition of income

taxes on salaries of judges does notconstitute unconstitutional diminutionof salaries (Nitafan v Tan)

Additional, double or indirect

compensation are prohibited (Art. IX-B,Sec. 8)

Standardization of compensation (Art.

IX-B, Sec. 5) RA 6758, the SalaryStandardization Law was passed incompliance with the constitutionalprovision.

4. Compensation not an element of publicoffice

Compensation is not indispensable to

public office. It is not part of the office butmerely incident thereto. It is sometimesexpressly provided that certain officers

shall receive no compensation, and a lawcreating an office without any provision forcompensation may carry with it theimplication that the services are to berendered gratuitously.

5. Salary, Wages, and Per Diems Definedand Distinguished

Salary: time-bound

Wages: service-bound Per Diem: allowance for days actually

spent for special duties

6. Salary of Public Officer Not Subject toAttachment

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The salary of a public officer or employee

may not, by garnishment, attachment, ororder of execution, be seized before beingpaid by him, and appropriated for thepayment of his debts.

Money in the hands of public officers,

although it may be due governmentemployees, is not liable to the creditors ofthese employees in the process ofgarnishment because the sovereign State

cannot be sued in its own courts except byexpress authorization by statute. (Directorof Commerce and Industry v. Concepcion)

7. Future or Unearned Salaries Cannot beAssigned

The salary or emoluments in public office

are not considered the proper subject ofbarter and sale. (22 R.C.L. 541)

8. Agreements Affecting CompensationHeld Void

An agreement by a public officer respecting

his compensation may rightfully be

considered invalid as against public policywhere it tends to pervert suchcompensation to a purpose other than thatfor which it was intended, and to interferewith the officer's free and unbiasedjudgment in relation to the duties of his

office. (This is usually with reference tounperformed services and the salary orfees attached thereto.)

9. Right to Recover Salary: De JureOfficer and De Facto Officer

Where a duly proclaimed elective official

who assumes office is subsequently ousted

in an election protest, the prevailing partycan no longer recover the salary paid tothe ousted officer. The ousted officer, whoacted as de facto officer during hisincumbency, is entitled to thecompensation, emoluments and allowanceswhich are provided for the position(Rodriguez v. Tan).

- Exception: If there was fraud on thepart of the de facto officer which wouldvitiate his election.

A de jure officer recover from--

the government: when the government

continues to pay the de facto officereven after the notice of adjudication ofthe protest in favor of the de jureofficer.

a de facto officer: when notice of

adjudication of the title to the de jureofficer has been given, and the de

facto officer still continues to exerciseduties and receive salaries and

emoluments.

an intruder / usurper: at all instances.

Monroy v. CA and del Rosario

Where a mayor filed a certificate ofcandidacy for congressman then withdrewsuch certificate and reassumed the position

of mayor, thus preventing the vice-mayorfrom discharging the duties of the positionof mayor, the mayor should reimburse tothe vice-mayor, as the right rightfuloccupant of the position of mayor, thesalaried which he had received.

Rodriguez v. Tan

Where a duly proclaimed electiveofficial who assumes office is subsequentlyousted in an election protest, the prevailingparty can no longer recover the salary paidto the ousted officer. The ousted officer,

who acted as de facto officer during hisincumbency, is entitled to thecompensation, emoluments and allowanceswhich are provided for the position.

Exception: If there was fraud onthe part of the de facto officer whichwould vitiate his election.

10. Additional or Double CompensationProhibited

Additional Double

There is only 1

position, but thepublic officer isgetting additionalcompensation.

.

There are 2 positions,

and with additionalfunctions andemoluments for bothpositions

Pensions / gratuities are not considered as

additional, double, or indirectcompensation. (Sec. 8, Art. IX-B, 1987Constitution)

By its very nature, a bonus partakes of an

additional remuneration or compensation.

(Peralta v. Auditor General)

An allowance for expenses incident to the

discharge of the duties of office is not anincrease of salary, a prerequisite, nor anemolument of office. (Peralta v. Auditor-General)

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11. Recovery of Salary During Period ofSuspension

If preventively suspended, he cannot

recover salary.- But If he is subsequently exonerated,

he can.

If he was given penalty of removal from

office, but was completely exonerated uponappeal, he can recover back wages andother monetary benefits.

If the reinstatement was not the result ofexoneration but an act of liberality by theCourt of Appeals, not entitled tocompensation as he has not rendered any

service

If he was given penalty of removal from

office, but his penalty was commuted fromremoval to mere suspension, or demotion,he cannot recover because he was stillfound guilty although the penalty wasreduced.

If the suspension / removal from office is

unjustified, he can recover.

C. Doctrine of Official Immunity

1. The Doctrine

A public officer enjoys qualified, not

absolute immunity. The protectiongenerally applies only to activities withinthe scope of office that are in good faithand are not reckless, malicious or corrupt.

2. Purpose of the Doctrine

To indirectly protect the sovereign by

protecting the public official in theperformance of his governmental function

As a result of the immunity extended, the

fearless and effective administration of thepolicies of the government is promoted.

3. Presidential Immunity from Suit

Enjoyed only during the tenure of the

President.

After his tenure, the Chief Executive

cannot invoke immunity from suit forcivil damages arising out of acts doneby him while he was President (Estradav Desierto, March 2, 2001)

D. Right to Preference in Promotion

But the right does not prevail over thediscretion of the appointing authority

E. Right to Vacation and Sick LeaveHowever, in Maleniza v COA, it was held

that elective officials are not entitled toaccrued vacation and sick leave credits

because they have no official hours ofwork

NOTE: However, this ruling may beconsidered abandoned by the LocalGovt Code which states in Sec. 81 thatelective local officials shall be entitledto the same leave privileges as thoseenjoyed by appointive local officials

F. Right to Maternity Leave

G. Right to Retirement PayRetirement pay is liberally construed in

favor of the retiree (Proferata v Drilon)The money value of the terminal leave of a

retiring government official shallcomputed at the retirees HIGHESTmonthly salary (Belicena v Sec. ofFinance)

H. Others

Right to reimbursement for expenses

incurred in the due performance of hisduty. But a public officer who uses a

government vehicle is not entitled to,nor can he charge, a transportationallowance (Domingo v COA, Oct. 7,1998)

Right to be indemnified against any

liability which they may incur in thebona fide discharge of their duties

Right to longevity pay

Separation Pay to be given to Civil

Service employees who are separated

from the service not for cause but byreason of reorganization (Sec. 16, ArtXVIII)

Right to additional allowances and

benefits under the Local GovernmentCode. LGUs may provide additionalallowances and benefits to nationalgovernment officials stationed to theirmunicipality or city.

VIII. Liability of Public Officers

General Rule: A public officer is not liable for

injuries sustained by another as a consequenceof official acts done within the scope of hisofficial authority.

Exception: As otherwise provided by law:

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1. A public officer shall not be civillyliable for acts done in the

performance of his official duties,unless there is a clear showing ofbad faith, malice or negligence(Sec. 38(1) Admin Code)

2. No subordinate officer or employeeshall be civilly liable for acts doneby him in good faith in the

performance of his duties. Howeverhe shall be liable for willful ornegligent acts done by him whichare contrary to law, morals, publicpolicy and good customs even ifhe acted under orders orinstructions of his superiors (Sec.39, Admin Code)

3. However, under the Local GovtCode, Sec. 24, Local governmentsand their officials are not exemptfrom liability for death or injury topersons or damage to property

Statutory Liability

1. Art. 27, Civil Code: Any personsuffering moral or material lossbecause a public officer refuses orneglects, without just cause, toperform his official duty, may filean action for damages and otherrelief against the public officer. Thisis without prejudice toadministrative disciplinary actionagainst the officer

2. Art. 32, Civil Code: Liability of

public officer for violation ofconstitutional rights of individuals

3. Art. 34, Civil Code: Liability of peaceofficers who fail to respond or giveassistance to persons in danger of

injury to life or property [Note: Themunicipal corporation is subsidiarilyliable]

4. Sec. 38(2) Chapter 9, Book IAdmin Code: Any public officerwho, without just cause, neglectsto perform a duty within a period

fixed by law or regulation, or withina reasonable period if none isfixed, shall be liable for damages tothe private party concernedwithout prejudice to such other

Threefold Liability Rule.

The wrongful acts or omissions of a publicofficer may give rise to civil, criminal and

administrative liability. An action can proceedindependently of the others. Dismissal or relieffrom the criminal action/liability does not carrywith it relief from administrative liability

When a Public Officer if Subject to CivilLiability

The following must concur:

- injury to the individual must beestablished

- the public officer must have violated aright or duty owed to the individualclaiming damages

- the officer must have maliciously andin bad faith acted outside the scope ofhis / her authority (ultra vires)

Even mistakes committed by such public

officer are not actionable as long as it isnot shown that they were motivated bymalice or gross negligence amounting tobad faith.

Phil. Racing Club v. Bonifacio

In this case, the members of theCommission on Races declared a horserace cancelled due to a faulty start, butonly after holders of the winning ticketswere able to claim their prizes. Because ofsuch declaration, the Philippine Racing Clubalso made a refund to the holders of thelosing tickets. A suit was filed against the

Commission, charging them with civilliability.

The Court found the

Commissioners acted outside the scope oftheir authority as they only had the powerto supervise, and not control, the conductof races. However, they were absolvedfrom liability because they acted in theirofficial capacity in the honest belief thatthey had such power.

The Court opined that in order thatacts may be done within the scope ofofficial authority, it is not necessary thatthey be prescribed by statute, or that theybe specifically directed or requested by asuperior officer. It is sufficient if they are

done by an officer in relation to matterscommitted by law to his control orsupervision, or that they have more or lessconnection to the department under whoseauthority the officer is acting.

Kinds of Liability of Ministerial Officers

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Nonfeasance : neglect or refusal, without

sufficient excuse, to perform an act whichit was the officers legal duty to theindividual to perform

Misfeasance : failure to use, in the

performance of a duty owing to anindividual, that degree of care, skill anddiligence

Malfeasance : the doing, either through

ignorance, inattention or malice, of thatwhich the officer has no legal right to do atall

It is the general rule that good faith

and absence of malice constitute nodefense in an action to hold aministerial officer liable for damagescaused by nonfeasances ormisfeasances. However, good faith orhonest mistake may be shown inmitigation of damages.

Liability of Superior Officer for Acts ofSubordinate

GENERAL RULE: Public officers are notcivilly liable to 3rd persons for the wrongfulacts, omissi

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