University of the Philippines

Bar Review Institute

LAW ON PUBLIC OFFICERS

Roentgen F. Bronce

A. General Principles

1. Definition of Public Office

• Right, authority and duty, created and conferred by law, by

which, for a given period either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with
some portion of the sovereign functions of government, to be
exercised by that individual for the benefit of the
public (Fernandez v. Sto. Tomas, G.R. No. 116418, 1995)

2. Characteristics/Elements of Public Office

• Right, authority and duty

• Created and conferred by law

➢ Created by: 1) the Constitution;

2) law;
3) authority of law (Secretary of DOTC v.
Mabalot, G.R. No. 138200, 2002)

Example of creation of public office by authority of law:

▪ The President’s continuing authority to reorganize the
administrative structure of the Office of the President
(OP) under Sec. 31, Book III, Administrative Code:
As to Office of the President Proper (OPP) : consolidate,
merge and abolish units thereof
As to agencies under OP: Transfer agencies and
functions

• Fixed by law or enduring at the pleasure of creating power

• Investment of sovereign functions

• To be exercised for the benefit of the public

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Public office is a public trust. (1st sentence, Sec. 1, Art. XI,

Constitution)1

Illustrative cases on nature of public office:

➢ Not property; not a contract. (Segovia v. Noel, 47 Phil 543,

1925)
➢ Not property within the sense of the constitutional
guaranties of due process of law; but public trust or agency.
(Cornejo v. Gabriel, 41 Phil.188, 1920)
 But from the standpoint of the security of tenure
guaranteed by the Constitution, the mantle of
protection afforded by due process could rightfully
be invoked. (Morfe v. Mutuc, 22 SCRA 424, 1968)
➢ No vested interest or an estate in an office, or even an
absolute right to hold it (National Land Titles and Deeds v.
CSC, G.R. No. 84301, 1993)

• The Public Officer

a. Definitions

• For the purpose of applying the provisions of this and the

preceding titles of this book, any person who, by direct
provision of the law, popular election or appointment by
competent authority, shall take part in the performance of
public functions in the Government of the Philippine Islands,
or shall perform in said Government or in any of its branches
public duties as an employee, agent or subordinate official, of
any rank or class, shall be deemed to be a public officer. (Art.
203, RPC)
• Public officer includes elective and appointive officials and
employees, permanent or temporary, whether in the classified
or unclassified or exempt service receiving compensation, even
nominal, from the government as defined in the preceding
subparagraph. (Sec. 2[b], RA 3019)
• “Officer” as distinguished from “clerk” or “employee”, refers
to a person whose duties, not being of a clerical or manual
nature, involves the exercise of discretion in the performance of

1 Hereinafter, Articles cited are of the Constitution, unless otherwise indicated

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the functions of the government. When used with reference to

a person having authority to do a particular act or perform a
particular function in the exercise of governmental power,
“officer” includes any government employee, agent or body
having authority to do the act or exercise that function. (Sec.
14, Introductory Provisions, Administrative Code of 1987)

➢ The word "includes" used in defining a public officer in Sec.

2(b) [of RA 3019] indicates that the definition is not
restrictive. (Preclaro v. Sandiganbayan, G.R. No. 111091, 1995)

b. Classifications

• Appointive
• Elective

Substantial distinctions exist between elective officials and

appointive officials. (Fariñas v. Executive Secretary, G.R. No.
147387, 2003)

Criteria Elective Appointive

Mode of Election Appointment/Designation
Acquisition of (Mandate of the by authority
Title electorate)

Term Definite; to be Either in permanent

removed only capacity or at the pleasure
upon stringent of appointing power
conditions

Prohibition Expressly Prohibited to engage in

allowed to take partisan activities or
part in political participate in any election
and electoral
activities

Q: The President created an ad hoc body, described as an “independent collegial

body” under the Office of the President Proper, to investigate corruption
committed by third-level officials. Is this body a public office?

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A : Yes. The facts are similar to the case of Biraogo vs. Philippine Truth
Commission (G.R. No. 192935, 2010). Though it has been described as an
"independent collegial body," it is essentially an entity within the Office of
the President Proper and subject to his control. Doubtless, it constitutes a
public office, as an ad hoc body is one.

Q : A was appointed to head a Commission created by the President through an

Executive Order. He did not receive salary for this position. In an investigation
by the Ombudsman against the alleged anomalous activities of the Commission,
A argued that he is not a public officer, because he did not receive any salary
from the Commission. Is A’s argument tenable?

A : No. Salary is a usual but not a necessary criterion for determining the
nature of the position. It is not conclusive. The salary is a mere incident and
forms no part of the office. Where a salary or fees is annexed, the office is
provided for it is a naked or honorary office, and is supposed to be accepted
merely for the public good. (Laurel)

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B. Modes of Acquiring Title to Public Office

1. By Appointment

• Definition

➢ Selection by the proper authority of an individual who is to

exercise the functions of an office. (Sevilla v. Court of Appeals,
G.R. No. 88498, 1992)
➢ Different from designation, which connotes merely the
imposition of additional duties, upon a person already in
the public service. (Id.)

• Nature

➢ Essentially executive in nature and legislature may not

interfere with its exercise (Pimentel, Jr. v. Ermita, G.R. No.
164978, 2005)
➢ Essentially discretionary and cannot be controlled, not even
by the Court, as long as it is exercised properly by the
appointing authority. (Domingo v. Ochoa, Jr., G.R. Nos.
226648-49, 2019)

2. By Election – covered by Election Laws

3. By Succession – see Local Governments and Constitutional Law

2013 Bar

While Congress was in session, the President appointed eight acting Secretaries.
A group of Senators from the minority bloc questioned the validity of the
appointments in a petition before the Supreme Court on the ground that while
Congress is in session, no appointment that requires confirmation by the
Commission on Appointments, can be made without the latter's consent, and
that an undersecretary should instead be designated as Acting Secretary.

Should the petition be granted?

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A: No, the Petition should not be granted. The power to appoint is essentially
executive in nature, and the legislature may not interfere with the exercise of
this power, except in those instances when the Constitution expressly allows
it to interfere. (Pimentel v. Ermita)

C. Modes and Kinds of Appointment

1. Permanent or Temporary

• Permanent- issued to one who meets all the requirements for the
position to which he is being appointed, including the appropriate
eligibility prescribed (Sec. 27[1], Book V, Administrative Code)
• Temporary—Issued to a person who meets all the requirements for
the position to which he is being appointed except the appropriate
civil service eligibility. Such temporary appointment shall not exceed
twelve months, but the appointee may be replaced sooner if a
qualified civil service eligible becomes available. (Sec. 27, Book V,
Administrative Code)
➢ Permanent and temporary appointments are two distinct
acts of the appointing authority. (Province of Camarines Sur v. CA,
246 SCRA 281, 1995)

2. Regular or Ad Interim

• Constitutional Basis

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

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appointments shall be effective only until disapproved by the

Commission on Appointments or until the next adjournment of the
Congress.(Sec. 16, Art. VII)

➢ There are four (4) groups of officers whom the President shall
appoint under this provision. Appointments of officers under the
sentence shall require confirmation by the Commission on
Appointments. (Sarmiento v. Mison, G.R. 79974, 1987)

• Distinctions between Regular and Ad Interim Appointments

Subject Regular Ad Interim

When While Congress is in When Congress is not in
appointment session session
made

Effectivity After confirmation of the Immediately, but ceases to

Commission on be valid if disapproved
Appointments (bypassed) by Commission
on Appointments or upon
adjournment by Congress
without the Commission
acting on the appointment

• Illustrative Cases
➢ An ad interim appointment is a permanent appointment. (PLM v.
IAC, 140 SCRA 22, 1985; Matibag v. Benipayo, G.R. No. 149036,
2002)
➢ An interim appointment can no longer be withdrawn by the
President once the appointee has qualified into office. The fact that
it is subject to confirmation by the Commission on Appointments
does not alter its permanent character. (Matibag v. Benipayo, G.R.
No. 149036, 2002)

➢ Appointment of the Chairman of the Commission on Human

Rights does not need confirmation by the Commission on
Appointments because it is not mentioned in the first sentence of
Sec. 16. (Bautista v. Salonga, G.R. No. 86439, 1989)

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2016 Bar

While Congress was not in session, the President appointed Antero as Secretary
of the Department of Tourism (DOT), Benito as Commissioner of the Bureau of
Immigration (BI), Clodualdo as Chairman of the Civil Service Commission
(CSC), Dexter as Chairman of the Commission on Human Rights (CHR), and
Emmanuel as Philippine Ambassador to Cameroon. The following day, all the
appointees took their oath before the President, and commenced to perform the
functions of their respective offices.

[a] Characterize the appointments, whether permanent or temporary; and

whether regular or interim, with reasons.

A: The appointments of Antero, Clodualdo and Emmanuel are ad interim

appointments because they were appointed while Congress was not in
session. Their appointments are also permanent. (PLM v. IAC; Matibag v.
Benipayo). On the other hand, the appointment of Benito as Commissioner of
BI and of Dexter as Chairman of Human Rights are permanent and regular.
(Sarmiento v. Mison; Bautista v. Salonga)

[b] A civil society group, the Volunteers Against Misguided Politics (VAMP),
files suit, contesting the legality of the acts of the appointees and claiming that
the appointees should not have entered into the performance of the functions of
their respective offices, because their appointments had not yet been confirmed
by the Commission on Appointments. Is this claim of VAMP correct? Why or
why not?

A: The claim is untenable. Ad interim appointments are immediately

effective until disapproved by the Commission on Appointments, or until the
next adjournment of Congress. (Matibag v. Benipayo) On the other hand, Benito
and Dexter could have assumed their offices immediately as their
appointments need not be confirmed by the Commission on Appointments.
(Sarmiento v. Mison; Bautista v. Salonga

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2019 Bar

A was appointed by the President as a Commissioner of the Commission on

Election (COMELEC) while Congress was not in session. Pending confirmation
of his appointment by the Commission on Appointments, A started to perform
his official functions in the COMELEC, such as attending en banc sessions,
hearing election protests, signing Resolutions, issuing Orders, and appearing
before Congress during budget hearings.

Atty. B questioned before the Supreme Court the exercise of official functions by
A, stating that his ad interim appointment is not a permanent appointment but a
temporary one pending confirmation by the Commission on Appointments, and
thus, prohibited under Article IX-C of the 1987 Constitution which states that
"[i]n no case shall any Member [of the COMELEC] be appointed or designated
in a temporary or acting capacity."

A) Is Atty. B’s contention correct? Explain.

A: Atty. B’s contention is incorrect. An ad interim appointment is a permanent

appointment and takes effect immediately and can no longer be withdrawn
by the President once the appointee has qualified into office. The fact that it
is subject to confirmation by the Commission on Appointments does not alter
its permanent character. Hence, A’s ad interim appointment as COMELEC
Commissioner cannot be considered as a temporary or acting appointment
that is prohibited by Sec. 1(2), Art. IX-C of the Constitution. (Matibag v.
Benipayo)

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D. Eligibility and Qualification Requirements

1. Standard of Merit and Fitness

• Appointments in the civil service shall be made only according to

merit and fitness to be determined, as far as practicable, and except to
positions which are policy-determining, primarily confidential, or
highly technical, by competitive examination. (Sec. 2[2], Art. IX-B)
o Rule of construction: Merit and fitness is the standard for ALL
appointments in the civil service
o GR (General Rule): merit and fitness is determined by competitive
examination
o ER (Exception to the Rule): For policy-determining,
primarily confidential, highly technical positions.

2. Qualification

• Qualification in an appropriate examination: required for

appointment to positions in the 1st and 2nd levels. (Sec. 21 [7],
Book V, Administrative Code)

➢ For 3rd level: passing the CES examinations administered by

the CES Board. (PEZA Board of Directors v. Mercado, G.R. No.
172144, 2010)

• Qualification standard = minimum requirements for a class of

positions in terms of education, training and experience, civil
service eligibility, physical fitness, and other qualities required for
successful performance. (Sec. 22 [1], Book V, Administrative Code)

▪ Qualifications: formal and informal (intangibles)

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➢ Formal: age, number of academic units in a certain course,

seminars attended
➢ Informal/Intangibles: resourcefulness, team spirit, courtesy,
initiative, loyalty, ambition, prospects for the future, and
best interests of the service. (Gaspar v. CA, 190 SCRA 774,
1990)

▪ Continuing nature of eligibility and qualification

requirements
➢ Must exist at the commencement of the term and during
occupancy of the office. (Aguila v. Genato, G.R. No. L-55151,
1981)
❖ Qualification of integrity is a continuing
requirement. (Republic v. Sereno, G.R. No. 237428,
2018)

2010 Bar

Q: True or False. Acquisition of civil service eligibility during tenure of a

temporary appointee does not automatically translate to a permanent
appointment.

A: True. The permanent appointment is not a continuation of the temporary

appointment. These are two distinct acts of the appointing authority. (Province
of Camarines Sur vs. CA, 246 SCRA 281, 1995)

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E. Disabilities and Inhibitions of Public Officers

1. General Disqualifications

a. Participation in immediately preceding election

• No candidate who has lost in any election shall, within one year
after such election, be appointed to any office in the Government
or any government-owned or controlled corporations or in any of
their subsidiaries. (Sec. 6, Art. IX-B, Constitution)
▪ ER: losing candidates in barangay elections (Sec. 94 [b], LGC)

b. Multiple positions/Incompatible Positions

• As to elective officers
No elective official shall be eligible for appointment or designation
in any capacity to any public office or position during his tenure.
(Sec. 7, Art. IX-B, Constitution)
ER: Unless allowed by the Constitution (see discussions
under Specific Disqualifications)
• As to appointive officers
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. (Sec. 7, Art. IX-B, Constitution)
ER: Unless otherwise allowed by law OR by the primary
functions of his position. (Id.)
➢ A government official may occupy two government offices
and perform the functions of both as long as there is no

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incompatibility. (Public Interest Center Inc. v. Elma, G.R. No.

138965, 2006)

➢ What is the Doctrine of Incompatibility?

Whether one office is subordinate to the other, in the sense
that one office has the right to interfere with the other.
Incompatibility between two offices, is an inconsistency in
the functions of the two. (Id.)

➢ Consultancy is deemed private practice of profession.

(Posadas v. Sandiganbayan, G.R. No. 189767, 2012)

c. Nepotism (Nepotic Appointments)

• Two provisions on nepotism under our laws:
o Sec. 59, Book V, Administrative Code
o Sec. 79, Local Government Code (LGC)

Subject Administrative Code LGC

Coverage National positions; Local positions
positions in national
agencies
Relative Relative up to the 3rd Relative up to 4th
degree of consanguinity degree of
or affinity consanguinity or
affinity
Relative of Appointing or Appointing or
whom (the recommending recommending
Public authority, bureau or authority
Officer) office head, supervising
authority
Exceptions a) persons employed in a None indicated
confidential capacity, (b)
teachers, (c) physicians,
and (d) members of the
Armed Forces of the
Philippines

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• Illustrative cases

➢ Covers promotional appointments (not just original

appointments) (Debulgado vs. CSC, 237 SCRA 184, 1994)

➢ Covers appointments made by a group of individuals acting as a

body. (CSC v. Cortes, G.R. No. 200103, 2014)

➢ Does not require the existence of a government position in

the plantilla of an organization, nor budgetary allocation therefor
nor that the appointee received benefits as a result of the
appointment for its application. (Bagaoisan v. Office of the
Ombudsman for Mindanao, Davao City, G.R. No. 242005, 2019)

2010 Bar

Q: True or False.

The rule on nepotism does not apply to designations made in favor of a

relative of the authority making a designation.

A: False. The rule on nepotism applies. Designation is included under

appointment in this sense, or else, the rules on nepotism would be
meaningless as an appointing authority may just designate a relative to a
vacant position. What cannot be done directly cannot be done indirectly.
(Laurel vs. CSC)

2. Specific Disqualifications

a. Members of Congress

• No Senator or Member of the House of Representatives may hold

any other office or employment in the Government. (Sec. 13, Art.
VI)

▪ ER: What is provided by the Constitution, i.e. ex officio

Membership in the JBC for the Chairman of the Committee on
Justice (see Sec. 8 [1], Art. VIII)

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• 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. (Id.)

▪ Example:

Sen. A’s 2nd term as Senator is from 2013- 2019. During this
term, he authored the law that created Agency X. In 2018, he
resigned from the Senate, and was appointed by the President
to head Agency X. Is this a valid appointment? A: No. The
prohibition speaks of term, which in A’s case, was from 2013-
2019. He was appointed in 2018.

b. President, Vice President, Cabinet Members/Deputies/Assistants

• 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. xxx (Sec. 13, Art. VII)

▪ ERs: 1) President as head of NEDA (Sec. 9, Art. XII); 2) Vice

President as Member of the Cabinet (2nd pa., Sec. 3, Art. VII); 3)
Secretary of Justice as member of the Judicial and Bar Council
(Sec. 8 [1], Art. VIII)

• Disqualification of presidential relatives

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. (2nd pa.,
Sec. 13, Art. VII)

Note: compare this with Sec. 59, Book V, Administrative

Code (Nepotism), supra

c. Justices and Judges

The Members of the Supreme Court and of other courts established by

law shall not be designated to any agency performing quasi-judicial
or administrative functions. (Sec. 12, Art. VIII)

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d. Commissioners of Constitutional Commissions

• No Member of a Constitutional Commission shall, during his

tenure, hold any other office or employment. xxx (Sec. 2, Art. IX-
A)

• Not have been candidates for any elective position in the

immediately preceding elections. (Sec. 1[1], Art. IX-B; Sec. 1[1],
Art. IX-C; Sec. 1[1], Art. IX-D)

e. Ombudsman and Deputies

• During their tenure, they shall be subject to the same

disqualifications and prohibitions as provided for in Section 2 of
Article IX-A of this Constitution. (2nd pa., Sec. 8, Art XI)
• Not have been candidates for any elective office in the
immediately preceding election. (Sec. 8, Art. XI)

f. Members of the Armed Forces

No member of the armed forces in the active service shall, at any time,
be appointed or designated in any capacity to a civilian position in
the Government including government-owned or controlled
corporations or any of their subsidiaries. (Sec. 5[4], Art. XVI)

2013 Bar

Patricio was elected member of the House of Representatives in the May 2010
Elections. His opponent Jose questioned Patricio's victory before the House of
Representatives Electoral Tribunal and later with the Supreme Court.

In a decision promulgated in November 2011, the Court ruled in Jose's favor;

thus, Patricio was ousted from his seat in Congress. Within a year from that
decision, the President can appoint Patricio __________.

(A) only as a member of the board of directors of any government owned and
controlled corporation

B) only as a deputy Ombudsman

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(C) only as a Commissioner of the Civil Service Commission

(D) only as Chairman of the Commission on Elections

(E) to any position as no prohibition applies to Patricio

3. Inhibitions

a. Additional, Double, Indirect Compensation (ADIC)

No elective or appointive public officer or employee shall receive

additional, double, or indirect compensation, unless specifically
authorized by law, nor accept without the consent of the Congress,
any present, emolument, office, or title of any kind from any foreign
government.

Pensions or gratuities shall not be considered as additional, double,

or indirect compensation. (Sec. 8, Art. IX-B, Constitution)

➢ A retiree receiving pension or gratuity can continue to receive

such pension or gratuity even if he accepts another government
position to which another compensation is attached. (Santos v.
Court of Appeals, G.R. No. 139792, 2000)

b. Acceptance of Gift from Foreign Government

No elective or appointive public officer or employee shall receive

additional, double, or indirect compensation, unless specifically
authorized by law, nor accept without the consent of the Congress,
any present, emolument, office, or title of any kind from any
foreign government. (1st pa., Sec. 8, Art. IX-B)

c. Multiple Positions/Incompatible positions

See discussions under Disqualifications, supra

d. Electioneering or Partisan Political Campaign/Activity

• No officer or employee in the civil service shall engage, directly or

indirectly, in any electioneering or partisan political campaign.
(Sec. 2[4], Art. IX-B, Constitution)

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• No member of the military shall engage directly or indirectly in

any partisan political activity, except to vote. (2nd pa., Sec. 3, Art.
XVI, Constitution)

• Nothing herein provided shall be understood to prevent any

officer or employee from expressing his views on current
political problems or issues, or from mentioning the names of
candidates for public office whom he supports. (Sec. 55, Book V,
Administrative Code)

e. Financial Accommodations to Certain Public Officers

No loan, guaranty, or other form of financial accommodation for any

business purpose may be granted, directly or indirectly, by any
government-owned or controlled bank or financial institution to the
President, the Vice-President, the Members of the Cabinet, the
Congress, the Supreme Court, and the Constitutional Commissions,
the Ombudsman, or to any firm or entity in which they have
controlling interest, during their tenure. (Sec. 16, Art. XI,
Constitution)

f. Practice of Profession

• No Senator or Member of the House of Representatives may

personally appear as counsel before any court of justice or before
the Electoral Tribunals, or quasi-judicial and other administrative
bodies. (Sec. 14, Art. VI)

• The President, Vice-President, the Members of the Cabinet, and

their deputies or assistants xxx shall not, during said tenure,
directly or indirectly, practice any other profession xxx (Sec. 13,
Art. VII, Constitution)

• Neither shall he [Member of Constitutional Commission] engage

in the practice of any profession xxx (Sec. 2, Art. IX-A,
Constitution)

• All governors, city and municipal mayors are prohibited from

practicing their profession or engaging in any occupation other
than the exercise of their functions as local chief executives.

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▪ ER: Sanggunian members may practice their professions,

engage in any occupation, or teach in schools except during
session hours, subject to conditions. (see Sec. 90, LGC)

• Rule for rest of public officers

[Public officials and employees shall not] Engage in the private

practice of their profession unless authorized by the Constitution
OR law, provided, that such practice will not conflict or tend to
conflict with their official functions (Sec. 7, RA 6713)

g. Participation in Business

• The President, Vice-President, the Members of the Cabinet, and

their deputies or assistants xxx shall not, during said tenure,
directly or indirectly, xxx participate in any business xxx (Sec. 13,
Art. VII, Constitution)

• Neither shall he [Member of Constitutional Commission] engage

xxx in the active management or control of any business which in
any way be affected by the functions of his office xxx (Sec. 2, Art.
IX-A, Constitution)

h. Financial Interest in Contract, Franchise, Privilege or Transaction

• The President, Vice-President, the Members of the Cabinet, and

their deputies or assistants xxx shall not, during said tenure,
directly or indirectly xxx be financially interested in any contract
with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality
thereof, including government-owned or controlled corporations
or their subsidiaries. xxx (Sec. 13, Art. VII)

• Nor shall he [Member of Constitutional Commission] be

financially interested, directly or indirectly, in any contract with,
or in any franchise or privilege granted by the Government, any of
its subdivisions, agencies, or instrumentalities, including
government-owned or controlled corporations or their
subsidiaries. (Sec. 2, Art. IX-A)

• Neither shall he [Member of Congress], directly or indirectly, be

interested financially in any contract with, or in any franchise or

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special privilege granted by the Government, or any subdivision,

agency, or instrumentality thereof, including any government-
owned or controlled corporation, or its subsidiary, during his term
of office. He shall not intervene in any matter before any office of
the Government for his pecuniary benefit or where he may be
called upon to act on account of his office. (Sec. 14, Art. VI)

• It shall be unlawful hereafter for any Member of the Congress

during the term for which he has been elected, to acquire or
receive any personal pecuniary interest in any specific business
enterprise which will be directly and particularly favored or
benefited by any law or resolution authored by him previously
approved or adopted by the Congress during the same term. This
section shall apply to any other public officer who recommended
the initiation in Congress of the enactment or adoption of any
law or resolution, and acquires or receives any such interest
during his incumbency.

It shall likewise be unlawful for such member of Congress or

other public officer, who, having such interest prior to the
approval of such law or resolution authored or recommended by
him, continues for thirty days after such approval to retain such
interest.

• Rule for rest of public officers:

Public officials and employees shall not, directly or indirectly,

have any financial or material interest in any transaction
requiring the approval of their office. (Sec. 7, RA 6713)

i. Nepotism

See discussions above

j. Detail or Reassignment During Campaign Period

No detail or reassignment whatever shall be made within three (3)

months before any election. (Sec. 58, Book V, Administrative Code)

k. Intervention of Relatives on Business, Transaction, Contract or

Application

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It shall be unlawful for the spouse or for any relative, by

consanguinity or affinity, within the third civil degree, of the
President of the Philippines, the Vice-President of the Philippines,
the President of the Senate, or the Speaker of the House of
Representatives, to intervene, directly or indirectly, in any business,
transaction, contract or application with the Government. (Sec. 5, RA
3019)

l. Other Prohibited Acts and Transactions

• Public officials and employees during their incumbency shall not:

a) Own, control, manage or accept employment as officer,

employee, consultant, counsel, broker, agent, trustee or nominee in
any private enterprise regulated, supervised or licensed by their
office unless expressly allowed by law;

(b) Recommend any person to any position in a private

enterprise which has a regular or pending official transaction with
their office.

(c) Use or divulge, confidential or classified information

officially known to them by reason of their office and not made
available to the public, either to further their private interests, or
give undue advantage to anyone; or prejudice the public interest.

(d) Solicit or accept, directly or indirectly, any gift, gratuity,

favor, entertainment, loan or anything of monetary value from
any person in the course of their official duties or in connection
with any operation being regulated by, or any transaction which
may be affected by the functions of their office. (Sec. 7, RA 6713)

o Unsolicited gifts or presents of small or insignificant value

offered or given as a mere ordinary token of gratitude or
friendship according to local customs or usage, shall be
excepted from the provisions of this Act. (Sec. 14, RA 3019)

• To receive, directly or indirectly, and for private persons to give,

or offer to give, any gift, present or other valuable thing to any
occasion, including Christmas, when such gift, present or other
valuable thing is given by reason of his official position,
regardless of whether or not the same is for past favor or favors or
the giver hopes or expects to receive a favor or better treatment in

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the future from the public official or employee concerned in the

discharge of his official functions. Included within the prohibition
is the throwing of parties or entertainments in honor of the official
or employees or his immediate relatives. (PD 46)

2015 Bar

Q: Professor Masipag who holds a plantilla or regular item in the University of

the Philippines (UP) is appointed as an Executive Assistant in the Court of
Appeals (CA). The professor is considered only on leave of absence in UP while
he reports for work at the CA which shall pay him the salary of the Executive
Assistant. The appointment to the CA position was questioned, but Professor
Masipag countered that he will not collect the salary for both positions; hence,
he cannot be accused of receiving double compensation. Is the argument of the
Professor valid? Explain.

A: Professor Masipag is correct in arguing that there is no violation of the

constitutional provision on “double compensation.” However, he cannot
accept the position in the Court of Appeals (CA) because this position is
incompatible with his regular item in UP. Hence, his acceptance of the CA
position would violate the prohibition on holding of multiple positions
under Section 7, Art. IX-B of the 1987 Constitution.

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F. Powers and Duties of Public Officers

1. Powers

a. Scope

• Express or implied, and that which is incidental to the office

➢ There must be a delegation of such authority, either express or

implied. In the absence of a valid grant, they are [government
officers] devoid of power. (Villegas v. Subido, L-26534, 1969)

b. Doctrine of Ratification

• Although the act of a public officer may not be binding on the

State because he has exercised his powers defectively, his acts may
be ratified.

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o ER: does not apply where there is want of power in the

public officer to perform the original act. (De Leon, citing
Am. Jur.)

• The State shall not be bound by the mistakes or errors of its

officers or agents in the exercise of their functions. (Sec. 10, Book I,
Administrative Code)

➢ The State is not estopped by the mistakes or errors of its

officials and agents. (Republic v. Hachero, G.R. No. 200973,
2016)

2. Duties

a. Kinds

• Duties to the public

➢ Owed to the public collectively, to the body politic, and not
to any particular individual. Ex: the governor owes a duty to
the public to see that the laws are properly executed, that fit
and competent officials are appointed by him, that unworthy
and ill-considered acts of the legislature do not receive his
approval (Vinzons-Chato vs. Fortune, G.R. No. 141309
[MR],2008)

• Duties to Individuals
➢ The second class above referred to includes those who, while
they owe to the public the general duty of a proper
administration of their respective offices, yet become, by
reason of their employment by a particular individual to do
some act for him in an official capacity, under a special and
particular obligation to him as an individual. Ex: Sheriff or
constable in serving civil process for a private suitor, a
recorder of deeds in recording the deed or mortgage of an
individual, a clerk of court in entering up a private judgment,
a notary public in protesting negotiable paper. (Id.)

b. Performance

➢ An officer to whom a discretion is entrusted cannot delegate it to

another, the presumption being that he was chosen because he

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was deemed fit and competent to exercise that judgment and

discretion, and unless the power to substitute another in his
place has been given to him, he cannot delegate his duties to
another. (Binamira v. Garrucho, G.R. No. 92008, 1990)

➢ The rule that requires an administrative officer to exercise his own

judgment and discretion does not preclude him from utilizing, as
a matter of practical administrative procedure, the aid of
subordinates to investigate and report to him the facts, on the
basis of which the officer makes his decisions. It is sufficient that
the judgment and discretion finally exercised are those of the
officer authorized by law. (American Tobacco v. Director of Patents,
G.R. No. L-26803, 1975)

c. Presumption of Regularity in the Performance of Official Functions

➢ Presumption is rebuttable by affirmative evidence of

irregularity or of any failure to perform a duty. (People vs.
Sanchez, G.R. No. 205787, 2017)

d. List of Duties

• Hold office as public trust

Public office is a public trust. Public officers and employees must

at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism
and justice, and lead modest lives. (Sec. 1, Art. XI)

• Owe allegiance to the Constitution and the State

o All public officers and employees shall take an oath or

affirmation to uphold and defend this Constitution (Sec. 4,
Art. IX-B)

o Public officers and employees owe the State and this

Constitution allegiance at all times, and any public officer or
employee who seeks to change his citizenship or acquire the
status of an immigrant of another country during his tenure
shall be dealt with by law. (Sec. 18, Art. XI)

• Submit Statement of Assets, Liabilities and Net Worth (SALN)

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o A public officer or employee shall, upon assumption of office

and as often thereafter as may be required by law, submit a
declaration under oath of his assets, liabilities, and net worth.
In the case of the President, the Vice-President, the Members of
the Cabinet, the Congress, the Supreme Court, the
Constitutional Commissions and other constitutional offices,
and officers of the armed forces with general or flag rank, the
declaration shall be disclosed to the public in the manner
provided by law. (Section 17, Art. XI)

o Reiterated in: Sec. 7, RA 3019 and Sec. 8, RA 6713

➢ The offense [failure to submit SALN] is penal in character

and is a clear breach of the ethical standards set for public
officials and employees…a public official who has failed
to comply with the requirement of filing the SALN cannot
be said to be of proven integrity and the Court may
consider him/her disqualified from holding public office.
(Republic v. Sereno, G.R. No. 237428, 2018)

➢ It should be emphasized that the laws on SALN aim to

curtail the acquisition of unexplained wealth.
Consequently, absent any intent to commit a wrong, and
having accounted for the source of the "undisclosed
wealth," as in this case, petitioner cannot be adjudged
guilty of the charge of Dishonesty; but at the most, of
mere negligence for having failed to accomplish her SALN
properly and accurately. (Daplas v. Department of Finance,
G.R. No. 221153, 2017)

➢ Minor or explainable errors in the SALN, which cannot be

related to an attempt to conceal illicit activities, should not
be punishable. (Iglesias v. Office of the Ombudsman, G.R. No.
180745, 2017)

• Divestment

A public official or employee shall avoid conflicts of interest at all

times. When a conflict of interest arises, he shall resign from his
position in any private business enterprise within thirty (30) days
from his assumption of office and/or divest himself of his
shareholdings or interest within sixty (60) days from such

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assumption. The same rule shall apply where the public official or
employee is a partner in a partnership. (Sec. 9, RA 6713)

• Observance of norms

Every public official and employee shall observe the following as

standards of personal conduct in the discharge and execution of
official duties: (a) Commitment to public interest; (b)
Professionalism; (c) Justness and sincerity; (d) Political neutrality;
(e) Responsiveness to the public; (f) Nationalism and patriotism;
(g) Commitment to democracy; and (h) Simple living. (Sec. 4, RA
6713)

• Other duties

In the performance of their duties, all public officials and

employees are under obligation to: (a) Act promptly on letters and
requests; (b) Submit annual performance reports; (c) Process
documents and papers expeditiously; (d) Act immediately on the
public's personal transactions; and (e) Make documents
accessible to the public. (Sec. 5, RA 6713)

2012 Bar

Q: Who is required by the Constitution to submit a declaration under oath of

his assets, liabilities, and net worth?

A: All public officers and employees. (Section 17, Art. XI)

2010 Bar

Q: True or False. A discretionary duty of a public officer is never delegable.

A: True. An officer to whom a discretion is entrusted cannot delegate it to

another, the presumption being that he was chosen because he was deemed
fit and competent to exercise that judgment and discretion, and unless the
power to substitute another in his place has been given to him, he cannot
delegate his duties to another. (Binamira v. Garrucho)

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Some experts have also suggested this alternative answer:

B. False. The statement that a discretionary duty of a public officer can never be
delegated is false. It can be delegated if the delegation is authorized (Mechem, A
Treatise on the Law of Public Offices and Officers, p. 368).

Note: What is common with these suggested answers is that the delegation of the discretionary
duty is allowed only if authorized. The rule is still non-delegation, and therefore, the first
suggested answer is preferred as it states both the general rule and the exception, and is lifted
from jurisprudence.

G. Rights of Public Officers

1. Right to Office

To exercise the right, authority and duty which was invested on him by
law.

2. Security of Tenure

• No officer or employee of the civil service shall be removed or

suspended except for cause provided by law. (Sec. 2 [3], Art. IX-B)

• Temporary employees of the Government shall be given such

protection as may be provided by law. (Sec. 6, Art. IX-B)

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• They [workers] shall be entitled to security of tenure, humane

conditions of work, and a living wage. (2nd pa., Sec. 3, Art. XIII)

➢ The constitutional and statutory guarantee of security of tenure

is extended to those in the career and non-career service
positions, and the cause under which an employee may be
removed or suspended must naturally have some relation to the
character or fitness of the officer or employee, for the discharge
of the functions of his office, or expiration of the project for
which the employment was extended. Further, well-entrenched is
the rule on security of tenure that once such an appointment is
issued and the moment the appointee assumes a position in the
civil service under a completed appointment, he acquires a legal,
not merely equitable right (to the position), which is protected
not only by statute, but also by the Constitution [Article IX-B,
Section 2, paragraph (3)] and cannot be taken away from him
either by revocation of the appointment, or by removal, except
for cause AND with previous notice and hearing. (Civil Service
Commission v. Magnaye, Jr., G.R. No. 183337, 2010)

➢ An official or employee cannot be arbitrarily removed from the

service without according him his constitutional right to due
process. (Bureau of Customs Employees Association v. Teves, G.R. No.
181704, 2011)

3. Self-Organization

• The right of the people, including those employed in the public

and private sectors, to form unions, associations, or societies for
purposes not contrary to law shall not be abridged. (Sec. 8, Art. III)

• It shall guarantee the rights of all workers to self-organization,

collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law.
They shall also participate in policy and decision-making
processes affecting their rights and benefits as may be provided by
law. (2nd pa. Sec. 3, Art XIII)

• The right to self-organization shall not be denied to government

employees. (Sec. 2[5], Art. IX-B)

• Right to strike is prohibited

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➢ Employees in the public service may not engage in strikes.

While the Constitution recognizes the right of government
employees to organize, they are prohibited from staging
strikes, demonstrations, mass leaves, walk-outs and other
forms of mass action which will result in temporary stoppage
or disruption of public services. To grant employees of the
public sector the right to strike, there must be a clear and direct
legislative authority therefor. (Bangalisan v. Court of Appeals,
G.R. No. 124678, 1997)

➢ As events evolved, they assembled in front of the GSIS main

office building during office hours and staged rallies and
protests, and even tried to convince others to join their cause,
thus provoking work stoppage and service-delivery
disruption. Any collective activity undertaken by government
employees with the intent of effecting work stoppage or
service disruption in order to realize their demands or force
concessions, economic or otherwise, is a prohibited concerted
mass action and doubtless actionable
administratively. (Government Service Insurance System v.
Kapisanan ng mga Manggagawa sa GSIS, G.R. No. 170132, 2006)

4. Compensation and other Pecuniary Benefits

The Congress shall provide for the standardization of compensation

of government officials and employees, including those in
government-owned or controlled corporations with original charters,
taking into account the nature of the responsibilities pertaining to,
and the qualifications required for their positions. (Secs. 5-8, Art. IX-B)

5. Different and Applicable Leaves

6. Retirement Pay

Pensions or gratuities shall not be considered as additional, double, or

indirect compensation. (2nd pa., Sec. 8, Art. IX-B)

Q: Members of the union staged pickets in front of their office during their
lunch breaks to air their grievances about the non-payment of their Collective
Negotiation Agreement incentives. They also sported t-shirts with inscriptions

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on the grant of incentives during an office activity, and continued to wear the
same inside the premises of the office during the office hours. Do these acts
constitute prohibited mass actions?

A: No. Without the intent at work stoppage or service disruption, the

concerted activity is not prohibited. The time and place of the activity are not
determinative of the prohibition. Whether done within government hours, a
concerted activity is allowed if it is without any intent at work stoppage.
(Davao City Water District v. Aranjuez, G.R. No. 194192 [Resolution], 2015)

H. Liabilities of Public Officers

• Three-fold Liability Rule

See discussions under Accountability, infra

• Liability of Superior Officers

o A public officer shall not be civilly liable for acts done in the
performance of his official duties, unless there is a clear showing
of bad faith, malice or gross negligence.

o Any public officer who, without just cause, neglects to perform a

duty within a period fixed by law or regulation, or within a

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reasonable period if none is fixed, shall be liable for damages to

the private party concerned without prejudice to such other
liability as may be prescribed by law.

o A head of a department or a superior officer shall not be civilly

liable for the wrongful acts, omissions of duty, negligence, or
misfeasance of his subordinates, unless he has actually
authorized by written order the specific act or misconduct
complained of. (Sec. 38, Book I, Administrative Code)

o Application of Command Responsibility

➢ On criminal accountability

To hold someone liable under the doctrine of command

responsibility, the following elements must obtain: a) the
existence of a superior-subordinate relationship between the
accused as superior and the perpetrator of the crime as his
subordinate; b) the superior knew or had reason to know that
the crime was about to be or had been committed; and c) the
superior failed to take the necessary and reasonable measures
to prevent the criminal acts or punish the perpetrators
thereof. As the President is not part of the chain of command
in the PNP, it follows that he does not exercise command
responsibility over this civilian organization. (Nacino v. Office of
the Ombudsman, G.R. Nos. 234789-91, 2019)

➢ On administrative accountability

In the absence of substantial evidence of gross neglect of the

Regional Director, administrative liability could not be based
on the principle of command responsibility. The negligence of
petitioner's subordinates is not tantamount to his own
negligence. It was not within the mandated responsibilities of
petitioner to conduct actual monitoring of projects. (Principe v.
Fact-Finding & Intelligence Bureau, G.R. No. 145973, 2002)

➢ True, this Court has held in several cases that in the absence of
substantial evidence of gross negligence of the petitioner,
administrative liability could not be based on the principle
of command responsibility. (Montallana v. Office of the
Ombudsman, G.R. No. 179677, 2012)

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• Liability of Subordinate Officers

No subordinate officer or employee shall be civilly liable for acts

done by him in good faith in the performance of his duties.
However, he shall be liable for willful or negligent acts done by him
which are contrary to law, morals, public policy and good customs
even if he acted under orders or instructions of his superiors. (Sec. 39,
Book I, Administrative Code)

• Liability of Local Government Officials

Local government units and their officials are not exempt from
liability for death or injury to persons or damage to property. (Sec
24, LGC)

1. Preventive Suspension and Back Salaries

➢ There are two kinds of preventive suspension of civil service

employees who are charged with offenses punishable by removal or
suspensions: (1) preventive suspension pending investigation; and
(2) preventive suspension pending appeal if the penalty imposed by
the disciplining authority is suspension or dismissal and, after
review, the respondent is exonerated. (Gloria v. CA, G.R. No. 131012,
1999)

a. Preventive suspension pending investigation

• Of the subordinate officer or employee under the authority of

proper disciplining authority

▪ Charge: involves dishonesty, oppression or grave misconduct,

or neglect in the performance of duty, or if there are reasons to
believe that the respondent is guilty of charges which would
warrant his removal from the service. (Sec. 51, Book V,
Administrative Code)
▪ Period to decide = ninety (90) days after the date of
suspension of the respondent who is not a presidential
appointee.
▪ If there is no decision, the respondent shall be automatically
reinstated in the service: Provided, That when the delay in the
disposition of the case is due to the fault, negligence or petition

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of the respondent, the period of delay shall not be counted in

computing the period of suspension herein provided. (Sec. 52,
Book V, Administrative Code)

• Of an employee by the Ombudsman

Not more than six (6) months, without pay, except when the
delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of the
respondent, in which case the period of such delay shall not be
counted in computing the period of suspension herein provided.
(Sec. 24, RA 6770)

• Of a local elective official (by the President for provincial, HUC,

ICC officials; by Governor for component city and municipal
officials; by the Mayor for barangay officials)

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. (Sec. 63, LGC)

• Illustrative cases

➢ Not a penalty but only a means of enabling the disciplining

authority to conduct an unhampered investigation. (Id.)

➢ There shall be no indefinite suspension pending

investigation, whether the respondent officials are
presidential or non-presidential appointees. The law abhors
indefinite preventive suspension because the indefiniteness
violates the constitutional guarantees under the due process
and equal protection clauses, as well as the right of public
officers and employees to security of tenure. (Baculi v. Office of
the President, G.R. Nos. 188681 & 201130, 2017)

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b. Preventive suspension pending appeal

➢ Punitive although it is in effect subsequently considered illegal if

respondent is exonerated and the administrative decision finding
him guilty is reversed. (Id.)

c. Effect on back salaries

• No right to back salaries for the period of preventive suspension

pending investigation

But

▪ There is right to back salaries during the period of preventive

suspension pending appeal if employee is exonerated

➢ Because respondent is penalized before his sentence is

confirmed that he should be paid his salaries in the event he is
exonerated. It would be unjust to deprive him of his pay as a
result of the immediate execution of the decision against him
and continue to do so even after it is shown that he is innocent
of the charges for which he was suspended. (Id.)

➢ However, the mere reduction of the penalty on appeal does not

entitle a government employee to back salaries if he was not
exonerated of the charges. (Office of the Ombudsman v. Espina,
G.R. No. 213500, 2018)

▪ What constitutes exoneration?

➢ The payment of back salaries, during the period of

suspension of a member of the civil service who is
subsequently ordered reinstated, may be decreed only if the
employee is found innocent of the charges which caused the
suspension AND when the suspension is unjustified. Where
the employee is completely exonerated of the administrative
charge or acquitted in the criminal case arising from the same
facts based on a finding of innocence, the second requirement
becomes subsumed in the first. (Civil Service Commission v.
Cruz, G.R. No. 187858, 2011)

➢ If the exoneration of the employee is relative (as

distinguished from complete exoneration), an inquiry into

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the factual premise of the offense charged and of the offense

committed must be made. If the administrative offense found
to have been actually committed is of lesser gravity than the
offense charged, the employee cannot be considered
exonerated if the factual premise for the imposition of the
lesser penalty remains the same. The employee found guilty
of a lesser offense may only be entitled to back salaries when
the offense actually committed does not carry the penalty of
more than one month suspension or dismissal. Otherwise, a
determination of the act/s and offense/s actually committed
and of the corresponding penalty imposed has to be made. On
the suspension/dismissal aspect, this second condition is met
upon a showing that the separation from office is not
warranted under the circumstances because the government
employee gave no cause for suspension or dismissal. This
squarely applies in cases where the government employee did
not commit the offense charged, punishable by suspension or
dismissal (total exoneration); or the government employee is
found guilty of another offense for an act different from that
for which he was charged. (Id.)

d. Appeal upon Exoneration/ Party Adversely Affected

➢ A judgment of exoneration in an administrative case is appealable,

and that the CSC, as the agency mandated by the Constitution to
preserve and safeguard the integrity of our civil service system,
and/or the appointing authority, such as a mayor who exercises
the power to discipline or remove an erring employee, qualifies as
parties adversely affected by the judgment who can file an
appeal. (Geronga v. Varela, G.R. No. 160846, 2008)

➢ The government party appealing must be the one prosecuting the

case and not the disciplining authority or tribunal which heard
the administrative case. (Montoya v. Varilla, G.R. No. 180146, 2008)

2011 Bar

X, an administrative officer in the Department of Justice, was charged with

grave misconduct and preventively suspended for 90 days pending
investigation. Based on the evidence, the Secretary of Justice found X guilty as
charged and dismissed him from the service. Pending appeal, X's dismissal was

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executed. Subsequently, the Civil Service Commission (CSC) reversed the

Secretary’s decision and the reversal became final and executory. What is the
effect of X's exoneration?

(A) X is entitled to reinstatement and back salaries both during his 90-day
preventive suspension and his suspension pending appeal.

(B) X is entitled to reinstatement and back salaries corresponding only to the

period of delay caused by those prosecuting the case against him.

(C) X is entitled to reinstatement but not to back salaries on ground of "damnum

absque injuria.”

D) X is entitled to reinstatement and back salaries during his suspension

pending appeal.

2. Illegal dismissal, Reinstatement, and Back Salaries

a. Reinstatement

Any person who has been permanently appointed to a position in the

career service and who has, through no delinquency or misconduct,
been separated therefrom, may be reinstated to a position in the same
level for which he is qualified. (Sec. 26,[4], Book V, Administrative
Code)

b. Back Salaries

➢ Any employee illegally dismissed from office is entitled to

reinstatement. Similarly, he or she is entitled to the payment of his
or her backwages from the time of his or her dismissal until his or
her actual reinstatement. (Campol v. Balao-as, G.R. No. 197634,
2016)

➢ Any other employment he or she obtains while the case

challenging his or her dismissal is pending does not bar his or her
right to be reinstated. This entitlement to full backwages also
means that there is no need to deduct Campol's earnings from his
employment with PAO from the award. (Id.)

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Q: What is the entitlement of a public officer who has been illegally

dismissed, but has retired?

A: In view of the retirement, reinstatement is no longer feasible. As such, the

back wages should be computed from the time of the officer’s illegal
dismissal up to his compulsory retirement. In addition, he is entitled to
receive the retirement benefits he should have received if he were not
illegally dismissed. (Saunar v. Ermita, G.R. No. 186502, 2017)

I. Immunity of Public Officers

1. Nature of Immunity

The State may not be sued without its consent (Sec. 3, Art. XVI)

➢ While the doctrine appears to prohibit only suits against the state
without its consent, it is also applicable to complaints filed against
officials of the state for acts allegedly performed by them in the
discharge of their duties. It must be noted, however, that the rule is
not so all-encompassing as to be applicable under all circumstances.

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(Philippine Agila Satellite Inc. v. Trinidad-Lichauco, G.R. No. 142362,

2006)

2. When Inapplicable

➢ It is a different matter where the public official is made to account in

his capacity as such for acts contrary to law and injurious to the
rights of plaintiff. Inasmuch as the State authorizes only legal acts by
its officers, unauthorized acts of government officials or officers are
not acts of the State, and an action against the officials or officers by
one whose rights have been invaded or violated by such acts, for the
protection of his rights, is not a suit against the State within the rule
of immunity of the State from suit. The rationale for this ruling is that
the doctrine of state immunity cannot be used as an instrument for
perpetrating an injustice. (Id.)

➢ All this is not to say that in no case may a public officer be sued as
such without the previous consent of the state. To be sure, there are a
number of well-recognized exceptions. It is clear that a public officer
may be sued as such to compel him to do an act required by law, as
where, say, a register of deeds refuses to record a deed of sale; or to
restrain a Cabinet member, for example, from enforcing a law claimed
to be unconstitutional; or to compel the national treasurer to pay
damages from an already appropriated assurance fund; or the
commissioner of internal revenue to refund tax over-payments from a
fund already available for the purpose; or, in general, to secure a
judgment that the officer impleaded may satisfy by himself without
the government itself having to do a positive act to assist him.
(Sanders v. Veridiano, G.R. No. L-46930, 1988)

Q: Chairman X of the Presidential Commission on Good Government was

charged with violations of the Procurement Act. He argues that he holds a
Cabinet rank, and therefore, is considered as the President's alter ego or political
agent. Hence, his act was also the President’s. As the President is immune from
suit, he avers that he is also immune from suit. Is this defense tenable?

A: No. Alter egos of the President are not immune from suit simply because
their acts are considered acts of the President if not repudiated. In fact,
the 1987 Constitution is replete with provisions on the constitutional

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principles of accountability and good governance that should guide a public

servant. The rule is that unlawful acts of public officials are not acts of the
State and the officer who acts illegally is not acting as such but stands in the
same footing as any other trespasser.. (Sabio v. Sandiganbayan, G.R. Nos. 233853-
54, 2019)

J. Distinguish: De Facto and De Jure Officers

1. Definitions

a. De Jure: A de jure officer is one who is deemed, in all respects, legally

appointed and qualified and whose term of office has not
expired. (Funa v. Chairman, Civil Service Commission, G.R. No. 191672,
2014)

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➢ A judge de jure is one who is exercising the office of a judge as a

matter of right. He is an officer of a court which has been duly and
legally elected or appointed. (Luna v. Rodriguez, G.R. No. 12647,
1917)

b. De Facto: One who has the reputation of being the officer that he
assumes to be, and yet is not a good officer in point of law. (Torres v.
Ribo, G.R. No. L-2051, 1948). A de facto officer is one who derives his
appointment from one having colorable authority to appoint, if the
office is an appointive office, and whose appointment is valid on its
face. He may also be one who is in possession of an office, and is
discharging its duties under color of authority, by which is meant
authority derived from an appointment, however irregular or
informal, so that the incumbent is not a mere volunteer.(Funa)

➢ A judge de facto is one whose acts, though not those of a lawful

officer, the law, upon principles of policy and justice will hold
valid so far as they involve the interest of the public and third
persons, where the duties of the office were exercised: (a)
Without a known appointment or election, but under such
circumstances of reputation or acquiescence as were calculated
to induce people, without inquiry, to submit to or invoke his
action, supposing him to be the officer he assumes to be; (b)
under color of a known or valid appointment or election,
where the officer has failed to conform to some precedent
requirement or conditions, for example, a failure to take the oath
of give a bond or similar defect; (c) under color of a known
election or appointment, void because the officer was not
eligible, or because there was a want of power in the electing or
appointing body, or by reason of some defect or irregularity in
its exercise, such ineligibility, want of power or defect being
unknown to the public; and (d) under color of an election, or
appointment, by or pursuant to a public unconstitutional law,
before the same is adjudged to be such. (Luna)

➢ A public official or employee who assumed office under an

incomplete appointment is merely a de facto officer for the
duration of his occupancy of the office for the reason that he
assumed office under color of a known appointment which is
void by reason of some defect or irregularity in its exercise.
(Corpuz v. Court of Appeals, G.R. No. 123989, 1998)

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➢ With the respondent's appointment as the MENRO having

been rendered ineffective by the lack of the appropriation
ordinance, he was nonetheless a de facto officer whose acts
were as valid as those performed by a de jure officer. (CSC v.
Unda, G.R. No. 213237, 2017)

➢ As incumbent elective official, respondent Gordon is ineligible

for appointment to the position of Chairman of the Board and
Chief Executive of SBMA; hence, his appointment thereto
pursuant to a legislative act that contravenes the Constitution
cannot be sustained. He may be considered a de facto officer…
under color of an election, or appointment, by or pursuant to
a public unconstitutional law, before the same is adjudged to
be such. (Flores v. Drilon)

c. Usurper

One who takes possession of the office without any color of right or
authority, either actual or apparent. (De Leon, citing AmJur)

2. Elements

a. De Jure

i. A de jure office exists

ii. Officer is legally qualified for the office
iii. Officer is lawfully chosen to such office
iv. Officer lawfully performs the duties of such office

b. De Facto
i. A validly existing public office (a de jure office)
ii. Color of title to the office or general acquiescence by the public
iii. Actual physical possession of the office in good faith
(Tuanda v. Sandigabayan, G.R. No. 110544 October 17, 1995)

➢ The primordial concern that the doctrine seeks to address

remains to be the protection of the public, who rely on the
acts of a person performing the duties of an office pursuant
to an irregular or defective authority. Precluding its
application to cases where there was no good faith possession
of the office, despite having a color of authority or right to the
office, would render the doctrine's purpose nugatory. (Arroyo
v. Court of Appeals, G.R. No. 202860, 2019)

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3. Right to Compensation

a. De Jure: Rightfully entitled to compensation

b. De Facto: Entitled to receive compensation for actual services
rendered, only when no de jure officer is declared (Gen. Manager v.
Monserate, G.R. No. 129616, 2002) and when he is in good faith ( Id.;
Monroy vs. CA, 20 SCRA 620, 1967 )

➢ GR: De jure officer has right to recover the salary received by

the de facto officer during the wrongful tenure.
The de facto officer takes the salaries at his risk and with the
responsibility to account to the de jure officer whatever amount
that he or she received. (Arroyo)
➢ ER: De Facto Officer is entitled when there is no de jure
officer and the former is in good faith.
❖ The Court, in allowing de facto officers to keep the salaries of
the de jure office, relies on the principle of equity.
The de facto officer who performed the functions of the
office in good faith, and actually rendered services for the
benefit of the public, must be compensated. (Id.)
❖ The rule is that where there is a de jure officer, a de
facto officer, during his wrongful incumbency, is not
entitled to the emoluments attached to the office, even if
he occupied the office in good faith. (Monserate, G.R. No.
129616, 2002)

4. Effects of Acts

a. De Jure: Valid, subject to exceptions (such as when he is acting

beyond the scope of his authority)
b. De Facto: Valid as to the public until his title to the office is adjudged
insufficient (De Leon)

➢ For clarity, the de facto officer doctrine confers validity to

the actions of an officer having illegitimate title to the office, as
if he or she was acting as a de jure officer. Its effect is similar to
the ratification of acts done outside the scope of one's
authority...(Arroyo)

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5. Liabilities

De Facto officer generally has the same degree of liability and

accountability for official acts as de jure officer, but de facto status cannot
be an excuse for criminal responsibility (De Leon, citing AmJur)

6. Distinctions

Subject De Jure De Facto Usurper

Right to the Has lawful Possesses office No color of right or
Office right and title and performs title to the office
to the office its duties under
color of right
Effects of Acts Valid Valid as to the Invalid
public until
title to the
office is
adjudged as
insufficient
Compensation Rightfully Conditionally Not entitled
entitled to entitled to
compensation receive
compensation
only when
there is no de
jure officer and
he acted in
good faith
Removal Cannot be Cannot be May be ousted both
ousted even in ousted directly and
a direct collaterally; collaterally
proceeding may be ousted
in a direct
proceeding
(quo warranto)

7. Remedy of Quo Warranto to Question Title

• Nature

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➢ A quo warranto proceeding is the proper legal remedy to

determine the right or title to the contested public office or to oust
the holder from its enjoyment. (Republic v. Sereno, G.R. No. 237428,
2018) 2

• Standing

➢ A quo warranto proceeding is an action by the government against

individuals unlawfully holding an office. The remedy of quo
warranto is vested in the people, and not in any private individual
or group, because disputes over title to public office are viewed as
a public question of governmental legitimacy and not merely a
private quarrel among rival claimants.
➢ The only time that an individual, in his own name, may bring an
action for quo warranto is when such individual has a claim over
the position in question. (Id.)

• Respondent (the De Facto Officer)

➢ Does not bind his successor

A judgment against a public officer in regard to a public right

binds his successor in office. This rule, however, is not
applicable in quo warranto cases. A judgment in quo warranto
does not bind the respondent's successor in office, even though
such successor may trace his title to the same source. This follows
from the nature of the writ of quo warranto itself. It is never
directed to an officer as such, but always against the person — to
determine whether he is constitutionally and legally authorized to
perform any act in, or exercise any function of the office to which
he lays claim. (Mendoza v. Allas, G.R. No. 131977, 1999)

• Prescription

Nothing contained in this Rule shall be construed to authorize an

action against a public officer or employee for his ouster from office
unless the same be commenced within one (1) year after the cause of

2Distinguish quo warranto in elective office and quo warranto in appointive office. (2012 bar
exam)

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such ouster, or the right of the petitioner to hold such office or

position, arose, nor to authorize an action for damages in accordance
with the provisions of the next preceding section unless the same be
commenced within one (1) year after the entry of the judgment
establishing the petitioner's right to the office in question. (Sec. 11,
Rule 66, ROC)

➢ A person claiming to a position in the civil service must

institute the proper proceedings to assert his right within the
one-year period, otherwise, not only will he be considered to
have waived his right to bring action therefor but worse, he
will be considered to have acquiesced or consented to the very
matter that he is questioning. (Romualdez-Yap v. CSC, G.R. No.
104226, 1993)

➢ When the government is the real party in interest, and is

proceeding mainly to assert its rights, there can be no defense
on the ground of laches or prescription. Indubitably, the basic
principle that "prescription does not lie against the State"
which finds textual basis under Article 1108 (4) of the Civil
Code, applies in this case. (Sereno)

• Effect when granted

In case of usurpation of a public office, when the respondent is found

guilty of usurping, intruding into, or unlawfully holding or exercising
a public office, position or franchise, the judgment shall include the
following: (a) the respondent shall be ousted and excluded from the
office; (b) the petitioner or relator, as the case may be, shall recover
his costs; and (c) such further judgment determining the respective
rights in and to the public office, position or franchise of all the
parties to the action as justice requires. (Id.)

• Quo warranto and impeachment

Aside from the difference in their origin and nature, quo warranto and
impeachment may proceed independently of each other as these
remedies are distinct as to (1) jurisdiction (2) grounds, (3) applicable
rules pertaining to initiation, filing and dismissal, and (4) limitations.
Nevertheless, for the guidance of the bench and the bar, and to
obliviate confusion in the· future as to when quo warranto as a remedy
to oust an ineligible public official may be availed of, and in keeping
with the Court's function of harmonizing the laws and the rules with

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the Constitution, the Court herein demarcates that an act or omission

committed prior to or at the time of appointment or election relating
to an official's qualifications to hold office as to render such
appointment or election invalid is properly the subject of a quo
warranto petition, provided that the requisites for the
commencement thereof are present. Contrariwise, acts or omissions,
even if it relates to the qualification of integrity, being a continuing
requirement but nonetheless committed during the incumbency of
a validly appointed and/or validly elected official, cannot be the
subject of a quo warranto proceeding, but of something else, which
may either be impeachment if the public official concerned is
impeachable, and the act or omission constitutes an impeachable
offense, or disciplinary, administrative or criminal action, if
otherwise. (Id.)

2010 Bar

Q: True or False. A person who occupies an office that is defectively created is

a de facto officer.

A: False. A requisite to be a de facto officer is the existence of a validly created

office. (Tuanda v. Sandiganbayan).

2009 Bar

Q: TRUE or FALSE. A de facto public officer is, by right, entitled to receive

the salaries and emoluments attached to the public office he holds.

A: False. As a general rule, the de facto officer is not entitled to compensation

for his services. (Monroy v. CA) As an exception, he may collect his salaries
and emoluments if he assumed his office in good faith and there is no de jure
officer claiming title to the office. (Arroyo v. Lee)

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Q: A and B were applicants to the position of Executive Director in Agency X.

Both are qualified, though B occupies the next lower position, and has been with
the agency for a longer time. The head of the agency picked A. B complained
that he should have been selected, and instituted an action for quo warranto
against A in the RTC. Is the action proper?

A: No. The action is in the nature of a protest that is decided in the first
instance by the head of the agency, subject to appeal to the CSC. Also, B does
not have standing to sue as he is not entitled to the position as a matter of
right. (see Mantala v. Salvador, G.R. No. 101646, 1992)

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K. Termination of Official Relations

1. Death or Permanent Disability

2. Retirement

a. Members of the Judiciary

The Members of the Supreme Court and judges of lower courts shall
hold office during good behavior until they reach the age of seventy
years or become incapacitated to discharge the duties of their
office. (Sec. 11, Art. VIII)

b. Other government officers and employees

Unless the service is extended by appropriate authorities, retirement

shall be compulsory for an employee of sixty-five (65) years of age
with at least fifteen (15) years of service: Provided, That if he has less
than fifteen (15) years of service, he may be allowed to continue in the
service in accordance with existing civil service rules and regulations.
(Sec. 13(b), R.A. 8291 (GSIS Law))

3. Abolition of Office

See “continuing authority of the President to reorganize the Office of the

President” under “General Principles”, supra

4. Expiration of Term/Tenure

➢ The concept of security of tenure, however, labors under a variation

for primarily confidential employees due to the basic concept of a
"primarily confidential" position. Serving at the confidence of the
appointing authority,
the primarily confidential employee's term of office expires when
the appointing authority loses trust in the employee. When this
happens, the confidential employee is not "removed" or "dismissed"
from office; his term merely "expires" and the loss of trust and
confidence is the "just cause" provided by law that results in the
termination of employment. (Government of Camarines Norte v.
Gonzales, G.R. No. 185740, 2013)

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➢ The concept of holdover when applied to a public officer implies

that the office has a fixed term and the incumbent is holding onto
the succeeding term. It is usually provided by law that officers
elected or appointed for a fixed term shall remain in office not only
for that term but until their successors have been elected and
qualified. Where this provision is found, the office does not become
vacant upon the expiration of the term if there is no successor elected
and qualified to assume it, but the present incumbent will carry over
until his successor is elected and qualified, even though it be beyond
the term fixed by law. Absent an express or implied constitutional or
statutory provision to the contrary, an officer is entitled to stay in
office until his successor is appointed or chosen and has
qualified. The legislative intent of not allowing holdover must be
clearly expressed or at least implied in the legislative
enactment, otherwise it is reasonable to assume that the law-making
body favors the same. (Lecaroz v. Sandiganbayan, G.R. No. 130872,
1999)

5. Resignation

a. Requisites

i) an intention to relinquish a part of the term;

ii) an act of relinquishment; and
iii) an acceptance by the proper authority.

➢ The final or conclusive act of a resignation's acceptance is the

notice of acceptance. The incumbent official would not be in a
position to determine the acceptance of his resignation unless
he had been duly notified therefor. (Republic v. Singun, G.R. No.
149356, 2008)

b. Ipso facto resignation of appointive officials upon filing of

Certificates of Candidacy

• Any person holding a public appointive office or position,

including active members of the Armed Forces of the Philippines,
and officers and employees in government-owned or controlled
corporations, shall be considered ipso facto resigned from his
office upon the filing of his certificate of candidacy. (Sec. 66, OEC);
(Quinto v. COMELEC, G.R. No. 189698 [MR], 2010)

• Reiterated under Sec. 13, RA 9369

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c. Resignations of local elective officials

Resignations by elective local officials shall be deemed effective only

upon acceptance by the following authorities:

(1) The President, in the case of governors, vice-governors, and

mayors and vice-mayors of highly urbanized cities and
independent component cities;
(2) The governor, in the case of municipal mayors, municipal vice-
mayors, city mayors and city vice-mayors of component cities;
(3) The sanggunian concerned, in the case of sanggunian members;
and
(4) The city or municipal mayor, in the case of barangay officials.
(Sec. 82, LGC)

➢ Acceptance is necessary for resignation of a public officer to

be operative and effective, otherwise the officer is subject to
the penal provisions of Article 238 of the Revised Penal
Code. (Joson III v. Nario, G.R. No. 91548, 1990)

6. Abandonment of Office

a. Definition

➢ Abandonment of an office has been defined as the voluntary

relinquishment of an office by the holder, with the intention of
terminating his possession and control thereof. Therefore, there
are two essential elements of abandonment: first, an intention to
abandon and, second, an overt or "external" act by which the
intention is carried into effect. (Sangguniang Bayan of San Andres v.
Court of Appeals, G.R. No. 118883, 1998)

b. Distinction with resignation

Indeed, abandonment of office is a species of resignation; while

resignation in general is a formal relinquishment, abandonment is a
voluntary relinquishment through nonuser. Nonuser refers to a
neglect to use a privilege or a right. (Id.)

c. Effect of abandonment; Dropping from the rolls

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➢ Based on current rules, a public officer or employee may be

dropped from the rolls for AWOL without prior notice, under
any of the following circumstances: (1) the public officer or
employee was continuously absent without approved leave for at
least 30 working days; or (2) the public officer or employee had
established a scheme to circumvent the rule by incurring
substantial absences, though less than 30 working days, three
times in a semester, such that a pattern was readily apparent.
Dropping from the rolls is not disciplinary in nature. It shall not
result in the forfeiture of any benefit of the public official or
employee concerned nor in said public official or employee's
disqualification from reemployment in the government. Thus, the
concerned public official or employee need not be notified or be
heard. (Civil Service Commission v. Plopinio, G.R. No. 197571, 2017)

7. Acceptance of Incompatible Office

See Disqualifications and Inhibitions, supra

8. Criminal Conviction

• Effects of the penalties of perpetual or temporary absolute

disqualification. - The penalties of perpetual or temporary absolute
disqualification for public office shall produce the following effects:

1. The deprivation of the public offices and employments which

the offender may have held even if conferred by popular
election.

2. The deprivation of the right to vote in any election for any

popular office or to be elected to such office.

3. The disqualification for the offices or public employments and

for the exercise of any of the rights mentioned.

In case of temporary disqualification, such disqualification as is

comprised in paragraphs 2 and 3 of this article shall last during the
term of the sentence.

4. The loss of all rights to retirement pay or other pension for any
office formerly held. (Sec. 30, RPC)

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• Effect of the penalties of perpetual or temporary special

disqualification. - The penalties of perpetual or temporal special
disqualification for public office, profession or calling shall produce
the following effects:

1. The deprivation of the office, employment, profession or

calling affected;

2. The disqualification for holding similar offices or employments

either perpetually or during the term of the sentence according to
the extent of such disqualification

9. Recall

The power of recall for loss of confidence shall be exercised by the

registered voters of a local government unit to which the local elective
official subject to such recall belongs. (Sec. 69, LGC)

10. Impeachment

a. Impeachable Public Officers

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. (Sec. 2, Art. XI)

b. Grounds

a) Culpable violation of the Constitution; b) treason; c) bribery; d)

graft and corruption; e) other high crimes,; f) betrayal of public trust.
(Sec. 2, Art. XI)

c. Process

(1) The House of Representatives shall have the exclusive power to

initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any

Member of the House of Representatives or by any citizen upon

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a resolution of endorsement by any Member thereof, which shall

be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days
thereafter. The Committee, after hearing, and by a majority vote of
all its Members, shall submit its report to the House within sixty
session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by
the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall
be necessary either to affirm a favorable resolution with the
Articles of Impeachment of the Committee, or override its
contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is

filed by at least one-third of all the Members of the House, the
same shall constitute the Articles of Impeachment, and trial by
the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same

official more than once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases
of impeachment. When sitting for that purpose, the Senators shall
be on oath or affirmation. When the President of the Philippines is
on trial, the Chief Justice of the Supreme Court shall preside, but
shall not vote. No person shall be convicted without the
concurrence of two-thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than

removal from office and disqualification to hold any office
under the Republic of the Philippines, but the party convicted
shall nevertheless be liable and subject to prosecution, trial, and
punishment according to law.

(8) The Congress shall promulgate its rules on impeachment to

effectively carry out the purpose of this section. (Sec. 3, Art. XI)

➢ The term "to initiate" refers to the filing of the impeachment

complaint coupled with Congress' taking initial action of said
complaint. Having concluded that the initiation takes place by
the act of filing and referral or endorsement of the
impeachment complaint to the House Committee on Justice or,

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by the filing by at least one-third of the members of

the House of Representatives with the Secretary General of
the House, the meaning of Section 3 (5) of Article XI becomes
clear. Once an impeachment complaint has been initiated,
another impeachment complaint may not be filed against the
same official within a one year period. (Francisco, Jr. v. House of
Representatives, G.R. Nos. 160261, 2003)
11. Removal Through Quo Warranto

See discussions on Quo Warranto, supra

12. Prescription of Right to Office

See discussions on Quo Warranto and the case of Romualdez-Yap, supra

13. Dismissal as Penalty of Disciplinary Action

• Grounds

➢ Here, it was shown that Clave was previously found guilty by the
GSIS of simple neglect of duty. Applying Section 52 (B) of
the Revised Rules on Administrative Cases in the Civil Service, the
penalty of dismissal imposed by the GSIS and affirmed by the
CSC should instead be imposed on Clave. (Civil Service
Commission v. Clave, G.R. Nos. 194645 & 194665, 2012)

➢ Considering that this is the second time respondent F/SInsp.

Rolando T. Reodique is found liable for the offense of conduct
prejudicial to the best interest of the service, the penalty
of dismissal from the service shall be imposed on him.
(Villanueva v. Reodique, G.R. Nos. 221647 & 222003, 2018)

➢ Under the Civil Service Law and its implementing rules on

administrative cases, the penalty for the second offense of simple
misconduct is dismissal from the service. (Presidential Broadcast
Staff-Radio Television Malacañang v. Tabasa, G.R. No. 234624, 2020)

➢ Gross negligence in the performance of duty is classified as a

grave offense for which the penalty of dismissal is imposed.
(Fernandez v. Office of the Ombudsman, G.R. No. 193983, 2012)

➢ Public officers who, in the course of performing their regulatory

functions, brazenly extort money, incessantly haggle, bribe,

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knowingly use falsified copies of official issuances to justify

extortion, threaten to withhold benefits and services, deny
possession of official receipts to payors, profess undue influence
over their colleagues, and unabashedly exclaim that extortion and
bribery are standards in the government are guilty of grave
misconduct. She is to suffer the penalty of dismissal from service,
along with its accessory penalties of cancellation of eligibility,
forfeiture of retirement benefits, and perpetual disqualification
from employment in government. (Office of the Ombudsman v.
Regalado, G.R. Nos. 208481-82, 2018)

2019 Bar

W, the incumbent Congressman of the Province of Albay, decided to run for

Governor. He filed his certificate of candidacy (CoC) for Governor without
resigning from his post and continued exercising his duties as Congressman,
such as attending plenary sessions and committee hearings in the House of
Representatives. One of W's fiercest critics, X, claimed that W should not be
dispensing the functions of a Congressman since he is deemed ipso facto
resigned as such upon his filing of a CoC for Governor of Albay.

Assuming that W is instead, an incumbent Undersecretary of the Department

of National Defense, what is the effect of the filing of his CoC for the position
of Governor of Albay to said post? Explain.

A : W is considered ipso facto resigned from his position as Undersecretary of

the Department of National Defense upon filing his CoC. (Sec. 13, RA 9369;
Sec. 66, OEC; Quinto v. COMELEC, G.R. No. 189698, 2010)

2019 Bar

Q: Who are the impeachable officers under the 1987 Constitution? Briefly
explain the process of impeaching them thereunder.

A: Article XI Sec. 2 of the 1987 Constitution provides that the following are
impeachable officers: The President, the Vice-President, the Members of the
Supreme Court, the Members of the Constitutional Commissions, and the
Ombudsman.

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(For the process, see Section 3, Art. XI)

L. Civil Service

1. Scope

• The civil service embraces all branches, subdivisions,

instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original
charters. (Sec. 2 (1), Art. IX-B)

➢ The civil service now covers only government-owned or

controlled corporations with original or legislative charters,
that is those created by an act of Congress or by special law,
and not those incorporated under and pursuant to a general
legislation. (Trade Unions of the Philippines and Allied Services v.
National Housing Corp., G.R. No. L-49677, 1989)

a. Career Service

• The Career Service shall be characterized by (1) entrance based

on merit and fitness to be determined as far as practicable by
competitive examination, or based on highly technical
qualifications; (2) opportunity for advancement to higher
career positions; and (3) security of tenure.
The Career Service shall include:
(1) Open Career positions for appointment to which prior
qualification in an appropriate examination is required;
(2) Closed Career positions which are scientific, or highly
technical in nature; these include the faculty and academic
staff of state colleges and universities, and scientific and
technical positions in scientific or research institutions
which shall establish and maintain their own merit systems;
(3) Positions in the Career Executive Service; namely,
Undersecretary, Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director, Assistant

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Regional Director, Chief of Department Service and other

officers of equivalent rank as may be identified by the
Career Executive Service Board, all of whom are appointed
by the President;
(4) Career officers, other than those in the Career Executive
Service, who are appointed by the President, such as the
Foreign Service Officers in the Department of Foreign
Affairs;
(5) Commissioned officers and enlisted men of the Armed
Forces which shall maintain a separate merit system;
(6) Personnel of government-owned or controlled
corporations, whether performing governmental or
proprietary functions, who do not fall under the non-career
service; and
(7) Permanent laborers, whether skilled, semi-skilled, or
unskilled. (Sec. 7, Book V, Administrative Code)

• Classes of positions in the career service appointment to which

requires examinations shall be grouped into three major levels
as follows:
(a) The first level shall include clerical, trades, crafts, and
custodial service positions which involve non-professional
or subprofessional work in a non-supervisory or
supervisory capacity requiring less than four years of
collegiate studies;
(b) The second level shall include professional, technical,
and scientific positions which involve professional,
technical, or scientific work in a non-supervisory or
supervisory capacity requiring at least four years of college
work up to Division Chief level; and
(c) The third level shall cover positions in the Career
Executive Service. (Sec. 8(1), Administrative Code)

b. Non-Career Service

The Non-Career Service shall be characterized by (1) entrance on

bases other than those of the usual tests of merit and fitness
utilized for the career service; and (2) tenure which is limited to
a period specified by law, or which is coterminous with that of
the appointing authority or subject to his pleasure, or which is
limited to the duration of a particular project for which purpose
employment was made.
The Non-Career Service shall include:

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(1) Elective officials and their personal or confidential staff;

(2) Secretaries and other officials of Cabinet rank who hold
their positions at the pleasure of the President and their
personal or confidential staff(s);
(3) Chairman and members of commissions and boards
with fixed terms of office and their personal or confidential
staff;
(4) Contractual personnel or those whose employment in
the government is in accordance with a special contract to
undertake a specific work or job, requiring special or
technical skills not available in the employing agency, to be
accomplished within a specific period, which in no case
shall exceed one year, and performs or accomplishes the
specific work or job, under his own responsibility with a
minimum of direction and supervision from the hiring
agency; and
(5) Emergency and seasonal personnel. (Sec. 9, Book V,
Administrative Code)

➢ A position is considered to be primarily confidential

when there is a primarily close intimacy between the
appointing authority and the appointee, which ensures
the highest degree of trust and unfettered communication
and discussion on the most confidential of matters
[proximity test]. Moreover, in classifying a position as
primarily confidential, its functions must not be routinary,
ordinary and day to day in character. It is the nature of the
position that finally determines whether a position is
primarily confidential, policy determining or highly
technical and that executive pronouncements can be no
more than initial determinations that are not conclusive in
case of conflict. As reiterated in subsequent cases, such
initial determination through executive declaration or
legislative fiat does not foreclose judicial review. (Civil
Service Commission v. Pililla Water District, G.R. No. 190147,
2013)

c. Career Executive Service

• Covered public officers

Positions in the Career Executive Service; namely,

Undersecretary, Assistant Secretary, Bureau Director, Assistant

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Bureau Director, Regional Director, Assistant Regional

Director, Chief of Department Service and other officers of
equivalent rank as may be identified by the Career Executive
Service Board, all of whom are appointed by the President (Sec.
7(3), Book V)

➢ In order for a position to be covered by the CES, two

elements must concur. First, the position must either be
(1) a position enumerated under the Administrative Code
of 1987, i.e., Undersecretary, Assistant Secretary, Bureau
Director, Assistant Bureau Director, Regional Director,
Assistant Regional Director, Chief of Department Service,
or (2) a position of equal rank as those enumerated, and
identified by the Career Executive Service Board to be
such position of equal rank. Second, the holder of the
position must be a presidential appointee. Failing in any
of these requirements, a position cannot be considered as
one covered by the third-level or CES. (Civil Service
Commission v. Court of Appeals, G.R. Nos. 185766 &
185767,2010)

• Security of tenure

➢ Acquisition of security of tenure [as to third level] is

governed by the rules and regulations promulgated by
the CESB. (Career Executive Service Board v. Civil Service
Commission, G.R. No. 196890, 2018)

➢ Within the Career Executive Service, personnel can be

shifted from one office or position to another without
violation of their right to security of tenure because their
status and salaries are based on their ranks and not on their
jobs. (Cuevas v. Bacal, G.R. No. 139382, 2000)

• The Career Executive Service Board (CESB)

➢ While the CESB has been granted the power to prescribe

entrance requirements for the third-level of the civil service,
this power cannot be construed as the authority to modify
the qualifications specifically set by law for certain
positions. It is also beyond the power of the CESB to
question or overrule the specific qualifications imposed
by Congress for the subject positions. (Career Executive

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Service Board v. Civil Service Commission, G.R. No. 197762,

2017)

2. Appointments to the Civil Service

a. Appointments to the civil service in general

Appointments in the civil service shall be made only according to

merit and fitness to be determined, as far as practicable, and, except
to positions which are policy-determining, primarily confidential, or
highly technical, by competitive examination. (Sec. 2 (2), Art. IX-B)

b. Appointments by the President

➢ The following elements should always concur in the making of a

valid (which should be understood as both complete and effective)
appointment: (1) authority to appoint and evidence of the
exercise of the authority; (2) transmittal of the appointment
paper and evidence of the transmittal; (3) a vacant position at the
time of appointment; and (4) receipt of the appointment paper
and acceptance of the appointment by the appointee who
possesses all the qualifications and none of the
disqualifications. The concurrence of all these elements should
always apply, regardless of when the appointment is made,
whether outside, just before, or during the appointment ban. These
steps in the appointment process should always concur and
operate as a single process. There is no valid appointment if the
process lacks even one step. (Velicaria-Garafil v. Office of the
President, G.R. Nos. 203372, 206290, 209138 & 212030, 2015)

3. Personnel Actions

a. Promotion

A promotion is a movement from one position to another with an

increase in duties and responsibilities as authorized by law and
usually accompanied by an increase in pay. The movement may be
from one department or agency to another or from one organizational
unit to another in the same department or agency. (Sec. 26(2), Book V,
Administrative Code)

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➢ The concept of "next in rank" does not impose any mandatory or

peremptory requirement to appoint the person occupying
the next lower position in the occupational group of the office.
What the Civil Service Law and the Administrative Code of
1987 provide is that if a vacancy is filled up by promotion, the
person holding the position next in rank thereto "shall be
considered for promotion" (P.D. 807, Sec. 19 (3); E.O. 292, Bk. V,
Sec. 20 (3). In other words, one who is "next in rank" to a vacancy
is given preferential consideration for promotion to the vacant
position, but it does not necessarily follow that he alone and no
one else can be appointed. There is no vested right granted
the next in rank nor a ministerial duty imposed on the
appointing authority to promote the holder to the vacant
position. (Panis v. Civil Service Commission, G.R. No. 102948, 1994)

➢ While those who are next in rank to a vacant position may be

given some preference, no one has a vested right to a government
position. Seniority and salary grades should be given their due
weight but should not trump the public interest. (Abad v. Dela
Cruz, G.R. No. 207422, 2015)

b. Transfer

A transfer is a movement from one position to another which is of

equivalent rank, level, or salary without break in service involving
the issuance of an appointment. It shall not be considered disciplinary
when made in the interest of public service, in which case, the
employee concerned shall be informed of the reasons therefor. If the
employee believes that there is no justification for the transfer, he may
appeal his case to the Commission. The transfer may be from one
department or agency to another or from one organizational unit to
another in the same department or agency: Provided, however, That
any movement from the non-career service to the career service shall
not be considered a transfer. (Sec. 26(3), Book V, Administrative
Code)

c. Reinstatement

Any person who has been permanently appointed to a position in the

career service and who has, through no delinquency or misconduct,
been separated therefrom, may be reinstated to a position in the

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same level for which he is qualified. (Sec. 26(4), Book V,

Administrative Code)

See discussions on “Reinstatement” under Liabilities of Public

Officers, supra

d. Reemployment

Names of persons who have been appointed permanently to positions

in the career service and who have been separated as a result of
reduction in force or reorganization, shall be entered in a list from
which selection for reemployment shall be made. (Sec. 26(5), Book
V, Administrative Code)

e. Detail
,
A detail is the movement of an employee from one agency to
another without the issuance of an appointment and shall be
allowed, only for a limited period in the case of employees
occupying professional, technical and scientific positions. If the
employee believes that there is no justification for the detail, he may
appeal his case to the Commission. Pending appeal, the decision to
detail the employee shall be executory unless otherwise ordered by
the Commission. (Sec. 26(6), Book V, Administrative Code)

f. Reassignment

An employee may be reassigned from one organizational unit to

another in the same agency: Provided, That such reassignment shall
not involve a reduction in rank, status or salary. (Sec. 26(7), Book
V, Administrative Code)

➢ Reassignments differ from transfers, and public employees

with appointments that are not station-specific may be
reassigned to another station in the exigency of public
service. In such instances, the reassignment may be indefinite
and exceed one (1). (Yangson v. Department of Education, G.R.
No. 200170, 2019)

g. Secondment

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➢ A secondment is a movement of an employee from one

department or agency to another which is temporary in nature.
It may or may not require the issuance of an appointment, and
may involve an increase in compensation and benefits.
Acceptance of a secondment is voluntary on the part of the
employee. [xxx] Furthermore, a secondment being temporary in
nature, the payment of salaries of a seconded employee shall be
borne by the receiving agency and the seconded employee shall
be on leave without pay in his mother agency for the duration of
his secondment. (Señeres v. Sabido IX, G.R. No. 172902, 2015)

h. Illegal actions

• Demotion

➢ A demotion means that an employee is moved or appointed

from a higher position to a lower position with decreased
duties and responsibilities, or with lesser status, rank, or
salary. (Yangson)
• Constructive dismissal
➢ Occurs whether or not there is diminution in rank, status, or
salary if the employee's environment has rendered it
impossible for him or her to stay in his or her work. It may be
due to the agency head's unreasonable, humiliating, or
demeaning actuations, hardship because geographic location,
financial dislocation, or performance of other duties and
responsibilities inconsistent with those attached to the
position. (Yangson)
➢ A reassignment may be deemed a constructive dismissal if
the employee is moved to a position with a more servile or
menial job as compared to his previous position. It may occur
if the employee was reassigned to an office not in the
existing organizational structure, or if he or she is not given a
definite set of duties and responsibilities. It may be deemed
constructive dismissal if the motivation for the reassignment
was to harass or oppress the employee on the pretext of
promoting public interest. This may be inferred from
reassignments done twice within a year, or during a change of
administration of elective and appointive officials. However,
demotion and constructive dismissal are never presumed and
must be sufficiently proven. (Id.)

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4. The Civil Service Commission

a. Composition

The Civil Service shall be administered by the Civil Service

Commission composed of a Chairman and two Commissioners who
shall be natural-born citizens of the Philippines and, at the time of
their appointment, at least thirty-five years of age, with proven
capacity for public administration, and must not have been
candidates for any elective position in the elections immediately
preceding their appointment. (Sec. 1[1], Art. IX-B)

b. Appointment and Term

The Chairman and the Commissioners shall be appointed by the

President with the consent of the Commission on Appointments for
a term of seven years without reappointment. Of those first
appointed, the Chairman shall hold office for seven years, a
Commissioner for five years, and another Commissioner for three
years, without reappointment. Appointment to any vacancy shall be
only for the unexpired term of the predecessor. In no case shall any
Member be appointed or designated in a temporary or acting
capacity. (Sec. 1[2], Art. IX-B)

c. Powers

The Civil Service Commission, as the central personnel agency of the

Government, shall establish a career service and adopt measures to
promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service. It shall strengthen
the merit and rewards system, integrate all human resources
development programs for all levels and ranks, and institutionalize a
management climate conducive to public accountability. It shall
submit to the President and the Congress an annual report on its
personnel programs. (Sec. 3, Art. IX-B)

Q: X’s started his career in Agency X in 1997. He rose through the ranks, and
received another promotional appointment in 2011. It was discovered later on
that his purported Bachelor’s degree (a requirement for the office) is fake. May
the CSC recall a previously approved appointment to civil service without
prior notice and hearing?

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A: Yes. The CSC may recall an appointment for not meeting the
qualification standard. The recall or invalidation of an appointment does
not require a full-blown, trial-type proceeding. In approving or
disapproving an appointment, the CSC only examines the conformity of
the appointment with applicable provisions of law and whether the
appointee possesses all the minimum qualifications and none of the
disqualifications. Thus, in contrast to administrative disciplinary actions, a
recall does not require notice and hearing. (Civil Service Commission v. Cutao,
G.R. No. 225151, 2020)

M. Accountability

1. Types of Accountability

• Threefold liability rule

➢ The "threefold liability rule" holds that the wrongful acts or

omissions of a public officer may give rise to civil, criminal and
administrative liability. This simply means that a public officer
may be held civilly, criminally, and administratively liable for a
wrongful doing. Thus, if such violation or wrongful act results in
damages to an individual, the public officer may be held civilly
liable to reimburse the injured party. If the law violated attaches a
penal sanction, the erring officer may also be punished criminally.
Finally, such violation may also lead to suspension, removal from
office, or other administrative sanctions. (Ramiscal v. Commission on
Audit, G.R. No. 213716, 2017)

➢ The action that may result for each liability under the
"threefold liability rule" may proceed independently of one
another, as in fact, the quantum of evidence required in each case
is different. (Id.)

a. Administrative

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• Prescription

➢ We have in earlier cases ruled that administrative offenses do

not prescribe. Administrative offenses by their very nature
pertain to the character of public officers and employees. In
disciplining public officers and employees, the object sought is
not the punishment of the officer or employee but the
improvement of the public service and the preservation of the
public's faith and confidence in our government. (Melchor v.
Gironella, G.R. No. 151138, 2005)

➢ The right of the government to exercise administrative

supervision over erring public officials is lost when they cease
their functions in office. Consequently, the government must
commence an administrative case while they are in office;
otherwise, the disciplining body would no longer have any
jurisdiction over them. The administrative case contemplated
under the threefold liability rule is one that goes into the
conduct of the public official and is intended to be
disciplinary. (Ramiscal)

• Effect of retirement
➢ Retirement from the service during the pendency of an
administrative case does not render the case moot and
academic. (Office of the Ombudsman v. Dechavez, G.R. No.
176702, 2013)

• Effect of resignation
➢ The resignation of a public servant does not preclude the
finding of administrative liability to which he or she shall
still be answerable. Cessation from office because
of resignation does not warrant the dismissal of the
administrative complaint filed while the respondent was still
in the service. (Villena-Lopez v. Lopez, A.M. No. P-15-3411,
2020)

❖ What is clear from the records is that Andutan was forced

to resign more than a year before the Ombudsman filed the
administrative case against him. Additionally, even if we
were to accept the Ombudsman's position

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that Andutan foresaw the filing of the case against him, his
forced resignation negates the claim that he tried to prevent
the filing of the administrative case. Although the
Ombudsman is not precluded by Section 20 (5) of R.A.
6770 from conducting the investigation, the Ombudsman
can no longer institute an administrative case
against Andutan because the latter was not a public
servant at the time the case was filed. (Office of the
Ombudsman v. Andutan, Jr., G.R. No. 164679, 2011)

• Effect of death of respondent public officer

➢ GR: Death of the respondent in an administrative case does not
preclude a finding of administrative liability. (Civil Service
Commission v. Juen, G.R. No. 200577, 2016)
❖ ER: Death of the respondent in an administrative case
precludes the finding of administrative liability when: a)
due process may be subverted; b) on equitable and
humanitarian reasons; and c) the penalty imposed would
render the proceedings useless. (Civil Service Commission v.
Juen, G.R. No. 200577, 2016)

• Doctrine of Condonation (Aguinaldo Doctrine)

▪ Nature

➢ The rule is that a public official cannot be removed for

administrative misconduct committed during a prior term,
since his re-election to office operates as a condonation of the
officer's previous misconduct to the extent of cutting off the
right to remove him therefor. (Aguinaldo v. Santos, G.R. No.
94115, 1992)

➢ Generally speaking, condonation has been defined as "[a]

victim's express or implied forgiveness of an offense,
[especially] by treating the offender as if there had been no
offense.” (Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-
27, 2015)

▪ Application

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➢ The foregoing rule, however, finds no application

to criminal cases pending against petitioner for acts he may
have committed during the failed coup. (Aguinaldo)

➢ The condonation doctrine would not apply to appointive

officials since, as to them, there is no sovereign will to
disenfranchise. (CSC v. Sojor, 57 Phil. 52, 2008)

➢ It is apparent that the most important consideration in the

doctrine of condonation is the fact that the misconduct was
done on a prior term and that the subject public official was
eventually re-elected by the same body politic. It is
inconsequential whether the said re-election be on another
public office or on an election year that is not immediately
succeeding the last, as long as the electorate that re-elected the
public official be the same. In this case, the respondent was re-
elected as mayor by the same electorate that voted for him
when the violation was committed. (Office of the Ombudsman v.
Vergara, G.R. No. 216871, 2017)

▪ Abandonment

➢ It should, however, be clarified that this Court's abandonment

of the condonation doctrine should be prospective in
application for the reason that judicial decisions applying or
interpreting the laws or the Constitution, until reversed, shall
form part of the legal system of the Philippines. (Carpio-
Morales)

➢ The prospective application of Carpio-Morales should be

reckoned from April 12, 2016 because that was the date on
which this Court had acted upon and denied with finality the
motion for clarification/motion for partial reconsideration
thereon. (Crebello v. Ombudsman, G.R. No. 232325, 2019; Herrera
v. Mago, G.R. No. 231120, 2020)

2019 Bar

Mayor X and his City Administrator, Y, are political buddies who assumed their
respective offices in 2010. Sometime in January 2012, Y proposed to Mayor X the
entry into a ₱5,000,000.00 loan agreement with ABC Foundation, a non-stock
and non-profit organization in which the two had a long-standing personal

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involvement. The loan agreement was duly executed in the same year but was
never authorized and approved by the Sangguniang Panlungsod. It was further
found that the same constituted a fraudulent scheme to defraud the City
Government.

Meanwhile. Mayor X won another term during the May 2013 Elections and Y
continued on as his City Administrator. A year after, or in May 2014,
administrative charges for grave misconduct, serious dishonesty, and conduct
prejudicial to the best interest of the service were filed against them before the
Office of the Ombudsman. In defense, Mayor X argued that his subsequent
reelection in May 2013 absolved him from any administrative liability for any
alleged anomalous activity during his first term in office.

Y raised the same defense of condonation, having been retained by Mayor X as

City Administrator for a second term. On December 10, 2015, the Ombudsman
rendered its ruling in the case, finding both Mayor X and Y administratively
liable. Citing the Supreme Court’s Decision in Carpio-Morales v. Court of
Appeals (G.R. Nos. 217126-27), which was initially promulgated on November
10, 2015, the Ombudsman rejected their defense of condonation. With the
motions for reconsideration of Mayor X and Y having been denied by the
Ombudsman on March 10, 2016, they elevated thee matter to the Court of
Appeals.

Q: a) Did the Ombudsman err in not giving credence to the defense of

condonation as raised by Mayor X? Explain.

A: Yes, the Ombudsman erred in rejecting Mayor X’s defense. In Carpio, the
Court held that the abandonment of the condonation doctrine is prospective
in application. In this case, the administrative charge was based on X’s acts in
2012 prior to the promulgation of Carpio in 2016. (Carpio-Morales v. CA)

(b) How about Y? Can he validly invoke the condonation doctrine to absolve
him of the charge? Explain.

A: No. The condonation doctrine applies only to elective officials. As City

Administrator, Y is an appointive official. (CSC vs. Sojor)

b. Criminal

• Title VII, Revised Penal Code (CRIMES COMMITTED BY PUBLIC

OFFICERS)
• RA 3019 (Anti-Graft and Corrupt Practices Act)

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• RA 6713 (Code of Conduct and Ethical Standards for Public

Officials and Employees)
• RA 1379, “AN ACT DECLARING FORFEITURE IN FAVOR OF
THE STATE ANY PROPERTY FOUND TO HAVE BEEN
UNLAWFULLY ACQUIRED BY ANY PUBLIC OFFICER OR
EMPLOYEE AND PROVIDING FOR THE PROCEEDINGS
THEREFOR”
• PD 46, supra

c. Civil

• Any person suffering material or moral loss because a public

servant or employee refuses or neglects, without just cause, to
perform his official duty may file an action for damages and
other relief against the latter, without prejudice to any
disciplinary administrative action that may be taken. (Art. 27, Civil
Code)

• Any public officer or employee, or any private individual, who

directly or indirectly obstructs, defeats, violates or in any
manner impedes or impairs any of the following rights and
liberties [constitutional rights] of another person shall be liable to
the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a
periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due
process of law;
(7) The right to a just compensation when private property
is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers,
and effects against unreasonable searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or
societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly to
petition the Government for redress of grievances;

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(14) The right to be a free from involuntary servitude in any

form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and
counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy and public trial, to
meet the witnesses face to face, and to have compulsory
process to secure the attendance of witness in his behalf;
(17) Freedom from being compelled to be a witness against
one's self, or from being forced to confess guilt, or from
being induced by a promise of immunity or reward to make
such confession, except when the person confessing
becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual
punishment, unless the same is imposed or inflicted in
accordance with a statute which has not been judicially
declared unconstitutional; and
(19) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not

the defendant's act or omission constitutes a criminal
offense, the aggrieved party has a right to commence an
entirely separate and distinct civil action for damages, and
for other relief. Such civil action shall proceed
independently of any criminal prosecution (if the latter be
instituted), and may be proved by a preponderance of
evidence.
The indemnity shall include moral damages. Exemplary
damages may also be adjudicated.
The responsibility herein set forth is not demandable from a
judge unless his act or omission constitutes a violation of
the Penal Code or other penal statute. (Sec. 32, Civil Code)

➢ Juxtaposed with Article 32 of the Civil Code, the

principle may now translate into the rule that an
individual can hold a public officer personally
liable for damages on account of an act or omission
that violates a constitutional right only if it results
in a particular wrong or injury to the
former. (Vinzons-Chato v. Fortune)

• When a member of a city or municipal police force refuses or

fails to render aid or protection to any person in case of danger

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to life or property, such peace officer shall be primarily liable

for damages, and the city or municipality shall be subsidiarily
responsible therefor. The civil action herein recognized shall be
independent of any criminal proceedings, and a preponderance
of evidence shall suffice to support such action. (Sec. 34, Civil
Code)

• The right of the State to recover properties unlawfully

acquired by public officials or employees, from them or from
their nominees or transferees, shall not be barred by
prescription, laches, or estoppel. (Sec. 15, Art. XI)

➢ Applies only to civil actions for recovery of ill-gotten

wealth, and not to criminal cases. Conversely, prescription
of criminal cases is governed by special laws on
prescription. (Republic v. Desierto, G.R. No. 136506, 2001)

2. The Ombudsman and the Office of the Special Prosecutor

a. Creation

• There is hereby created the independent Office of the

Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military
establishment may likewise be appointed. (Sec. 5, Art. XI)

• The existing Tanodbayan shall hereafter be known as the Office of

the Special Prosecutor. It shall continue to function and exercise its
powers as now or hereafter may be provided by law, except those
conferred on the Office of the Ombudsman created under this
Constitution. (Sec. 7, Art. XI)

b. Guarantee of Independence and Fiscal Autonomy

• There is hereby created the independent Office of the

Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military
establishment may likewise be appointed. (Sec. 5, Art. XI)

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• The Office of the Ombudsman shall enjoy fiscal autonomy. Its

approved annual appropriations shall be automatically and
regularly released. (Sec. 14, Art. XI)

➢ Section 8 (2) of RA 6770 is unconstitutional by granting

disciplinary jurisdiction to the President over a Deputy
Ombudsman, in violation of the independence of the
Office of the Ombudsman. The Court did not consider the
Office of the Special Prosecutor to be constitutionally within
the Office of the Ombudsman and is, hence, not entitled to
the independence the latter enjoys under
the Constitution. (Gonzales III v. Office of the President of the
Philippines, G.R. Nos. 196231 & 196232, 2014)

c. Qualifications

The Ombudsman and his Deputies shall be natural-born citizens of

the Philippines and at the time of their appointment, at least forty
years old, of recognized probity, and independence, and members of
the Philippine Bar, and must not have been candidates for any
elective office in the immediately preceding election. The
Ombudsman must have for ten years or more been a judge or
engaged in the practice of law in the Philippines. During their
tenure, they shall be subject to the same disqualifications and
prohibitions as provided for in Section 2 of Article IX-A of this
Constitution. (Sec. 8, Art. XI)

d. Appointment

The Ombudsman and his Deputies shall be appointed by the

President from a list of at least six nominees prepared by the Judicial
and Bar Council, and from a list of three nominees for every vacancy
thereafter. Such appointments shall require no confirmation. All
vacancies shall be filled within three months after they occur. (Sec. 9,
Art. XI)

e. Term

The Ombudsman and his Deputies shall serve for a term of seven
years without reappointment. They shall not be qualified to run for
any office in the election immediately succeeding their cessation from
office. (Sec. 11, Art. XI)

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➢ Pertinent to Sec. 10, Art. XI of the 1987 Constitution, it is only as

to the rank and salary that the Ombudsman and the deputies
shall be the same with the chairman and members, respectively,
of the constitutional commissions. Harmonizing Sec. 11, Art. XI
of the 1987 Constitution with Sec. 8 (3) of R.A. No. 6770, in any
vacancy for the positions of Ombudsman and the deputies,
whether as a result of the expiration of the term or death,
resignation, removal, or permanent disability of the predecessor,
the successor shall always be appointed for a full term of seven
years. Unlike the constitutional commissions in Art. IX of
the 1987 Constitution, the seven-year term of office of the first
appointees for Ombudsman and the deputies is not reckoned
from 2 February 1987, but shall be reckoned from their date of
appointment. Accordingly, the present Ombudsman and
deputies shall serve a full term of seven years from their date
of appointment unless their term is cut short by death,
resignation, removal, or permanent disability. (Ifurung v.
Carpio-Morales, G.R. No. 232131, 2018)

f. Rank

The Ombudsman and his Deputies shall have the rank of Chairman
and Members, respectively, of the Constitutional Commissions, and
they shall receive the same salary, which shall not be decreased
during their term of office. (Sec. 10, Art. XI)

➢ It must be stressed that the Office of the Ombudsman is not a

constitutional commission. (Id.)

g. Powers and Duties

Under the 1987 Constitution Under RA 6770 (The Ombudsman Act

of 1989)
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. (Sec. 6, Art. XI)

The Ombudsman and his Deputies, as The Ombudsman and his Deputies, as
protectors of the people, shall act protectors of the people, shall act
promptly on complaints filed in any form promptly on complaints filed in any form
or manner against public officials or or manner against officers or employees of
employees of the Government, or any the Government, or of any subdivision,

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subdivision, agency or instrumentality agency or instrumentality thereof,

thereof, including government-owned or including government-owned or
controlled corporations, and shall, in controlled corporations, and enforce their
appropriate cases, notify the complainants administrative, civil and criminal liability
of the action taken and the result thereof. in every case where the evidence warrants
(Sec. 12, Art. XI) in order to promote efficient service by the
Government to the people. (Sec. 13)

The Office of the Ombudsman shall have The Office of the Ombudsman shall have
the following powers, functions, and the following powers, functions and
duties: (Sec. 13, Art. XI) duties: (Sec. 15)

(1) Investigate on its own, or on complaint (1) Investigate and prosecute on its own or
by any person, any act or omission of any on complaint by any person, any act or
public official, employee, office or agency, omission of any public officer or
when such act or omission appears to be employee, office or agency, when such act
illegal, unjust, improper, or inefficient. or omission appears to be illegal, unjust,
improper or inefficient. It has primary
jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this
primary jurisdiction, it may take over, at
any stage, from any investigatory agency
of Government, the investigation of such
cases;

(2) Direct, upon complaint or at its own (2) Direct, upon complaint or at its own
instance, any public official or employee instance, any officer or employee of the
of the Government, or any subdivision, Government, or of any subdivision,
agency or instrumentality thereof, as well agency or instrumentality thereof, as well
as of any government-owned or controlled as any government-owned or controlled
corporation with original charter, to corporations with original charter, to
perform and expedite any act or duty perform and expedite any act or duty
required by law, or to stop, prevent, and required by law, or to stop, prevent, and
correct any abuse or impropriety in the correct any abuse or impropriety in the
performance of duties. performance of duties;

(3) Direct the officer concerned to take (3) Direct the officer concerned to take
appropriate action against a public official appropriate action against a public officer
or employee at fault, and recommend his or employee at fault or who neglect to
removal, suspension, demotion, fine, perform an act or discharge a duty
censure, or prosecution, and ensure required by law, and recommend his
compliance therewith. removal, suspension, demotion, fine,
censure, or prosecution, and ensure
compliance therewith; or enforce its
disciplinary authority as provided in
Section 21 of this Act: provided, that the

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refusal by any officer without just cause to

comply with an order of the Ombudsman
to remove, suspend, demote, fine, censure,
or prosecute an officer or employee who is
at fault or who neglects to perform an act
or discharge a duty required by law shall
be a ground for disciplinary action against
said officer;
(4) Direct the officer concerned, in any (4) Direct the officer concerned, in any
appropriate case, and subject to such appropriate case, and subject to such
limitations as may be provided by law, to limitations as it may provide in its rules of
furnish it with copies of documents procedure, to furnish it with copies of
relating to contracts or transactions documents relating to contracts or
entered into by his office involving the transactions entered into by his office
disbursement or use of public funds or involving the disbursement or use of
properties, and report any irregularity to public funds or properties, and report any
the Commission on Audit for appropriate irregularity to the Commission on Audit
action. for appropriate action;
(5) Request any government agency for (5) Request any government agency for
assistance and information necessary in assistance and information necessary in
the discharge of its responsibilities, and to the discharge of its responsibilities, and to
examine, if necessary, pertinent records examine, if necessary, pertinent records
and documents. and documents;
(6) Publicize matters covered by its (6) Publicize matters covered by its
investigation when circumstances so investigation of the matters mentioned in
warrant and with due prudence. paragraphs (1), (2), (3) and (4) hereof,
when circumstances so warrant and with
due prudence: provided, that the
Ombudsman under its rules and
regulations may determine what cases
may not be made public: provided,
further, that any publicity issued by the
Ombudsman shall be balanced, fair and
true;

(7) Determine the causes of inefficiency, (7) Determine the causes of inefficiency,
red tape, mismanagement, fraud, and red tape, mismanagement, fraud, and
corruption in the Government and make corruption in the Government, and make
recommendations for their elimination recommendations for their elimination
and the observance of high standards of and the observance of high standards of
ethics and efficiency. ethics and efficiency;

(8) Promulgate its rules of procedure and (8) Administer oaths, issue subpoena and
exercise such other powers or perform subpoena duces tecum, and take
such functions or duties as may be testimony in any investigation or inquiry,
provided by law. including the power to examine and have
access to bank accounts and records;

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(9) Punish for contempt in accordance

with the Rules of Court and under the
same procedure and with the same
penalties provided therein;

(10) Delegate to the Deputies, or its

investigators or representatives such
authority or duty as shall ensure the
effective exercise or performance of the
powers, functions, and duties herein or
hereinafter provided;

(11) Investigate and initiate the proper

action for the recovery of ill-gotten and/or
unexplained wealth amassed after
February 25, 1986 and the prosecution of
the parties involved therein.

➢ The Office of the Ombudsman is empowered to determine if

there exists probable cause or "whether there exists a reasonable
ground to believe that a crime has been committed, and that the
accused is probably guilty thereof and, thereafter, to file the
corresponding information with the appropriate courts." This
determination is done by means of a preliminary
investigation. (Morales, Jr. v. Carpio-Morales, G.R. No. 208086,
2016)
➢ Notwithstanding the term "recommend," [under Sec. 13 (3), Art.
XI of the Constitution], the said provision, construed together
with the pertinent provisions in Republic Act No. 6770, is not
only advisory in nature but is actually mandatory within the
bounds of law.|(Office of the Ombudsman v. Court of Appeals, G.R.
No. 160675, 2006)

h. Officials Subject to Authority

The Office of the Ombudsman shall have disciplinary authority over

all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of
the Cabinet, local government, government-owned or controlled

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corporations and their subsidiaries, except over officials who may be

removed only by impeachment or over Members of Congress, and the
Judiciary. (Sec. 21, RA 6770)

2018 Bar

Q: State whether or not the following acts are constitutional:

(d) The appointment by the President as Deputy Ombudsman of a lawyer
who has been engaged in the practice of law for five years.
A: Constitutional. Only the Ombudsman is required to have been engaged
in the practice of law for at least ten years prior to his appointment. (Sec. 8,
Art. XI)

2017 Bar

Q: May a complaint for disbarment against the Ombudsman prosper during

her incumbency? Explain your answer.

A: A complaint for disbarment cannot be filed against the Ombudsman

during her incumbency. Article XI, Sec. 8 of the 1987 Philippine Constitution
imposes membership of the Philippine Bar as a qualification to be an
Ombudsman. The Ombudsman is removable only by impeachment. If the
Ombudsman were to be disbarred, he would be removed from office without
undergoing impeachment. (Article XI, Section 2 of the 1987 Philippine
Constitution)

2012 Bar

Judge Red is the Executive Judge of Green City. Red is known to have corrupt
tendencies and has a reputation widely known among practicing lawyers for
accepting bribes. Ombudsman Grey, wishing to "clean up" the government from
errant public officials, initiated an investigation on the alleged irregularities in
the performance of duties of Judge Red.

Q: Does the Ombudsman have authority to conduct investigation over crimes

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or offenses committed by public officials that are NOT in connection or

related at all to the official’s discharge of his duties and functions? Explain.

A: The Ombudsman can investigate crimes or offenses committed by public

officers which are not connected with the performance of their duties. Under
Section 13(1), Article XI of the Constitution, the Ombudsman can investigate
any act or omission of a public official that is illegal. The clause "any [illegal]
act or omission of any public official" is broad enough to embrace any crime
committed by a public official. The law does not qualify the nature of the
illegal act or omission of the public official or employee that the Ombudsman
may investigate. It does not require that the act or omission be related to or be
connected with or arise from, the performance of official duty. (Deloso v.
Domingo, G.R. No. 90591,1990)

2009 Bar

Q: TRUE or FALSE. Decisions of the Ombudsman imposing penalties in

administrative disciplinary cases are merely recommendatory.

A: False. Their decisions imposing penaties are mandatory. (Republic v. Bajao)

2018 Bar

Ascertain the constitutionality of the following act:

An investigation conducted by the Ombudsman against a Commissioner of

the Commission on Audit for serious misconduct.

A: Constitutional. The Ombudsman retains the power to investigate any

serious misconduct in office allegedly committed by officials removable by
impeachment, for the purpose of filing a verified complaint for impeachment,
if warranted. (Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27, 2015)

3. The Sandiganbayan

a. Creation

• PD 1486, PD 1606, RA 7975, RA 8249, RA 10660

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• The present ant-graft court known as the Sandiganbayan shall

continue to function and exercise its jurisdiction as now or
hereafter may be provided by law. (Sec. 4, Art. XI)

b. 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;
(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.

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(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.

c. Illustrative cases

➢ On the power to preventively suspend a Member of Congress

Section 16 (3), Article VI of the Constitution — which deals with

the power of each House of Congress inter alia to 'punish its
Members for disorderly behavior, and 'suspend or expel a
Member' by a vote of two-thirds of all its Members subject to the
qualification that the penalty of suspension, when imposed,
should not exceed sixty days — is unavailing, as it appears to be
quite distinct from the suspension spoken of in Section 13 of RA
3019, which is not a penalty but a preliminary, preventive
measure, prescinding from the fact that the latter is not being
imposed on petitioner for misbehavior as a Member of the House
of Representatives. Republic Act No. 3019 does not exclude from
its coverage the members of Congress and that, therefore,
the Sandiganbayan did not err in thus decreeing the assailed
preventive suspension order. (Defensor-Santiago v. Sandiganbayan,
G.R. No. 128055, 2001)

➢ On officials with positions under SG 27 and above

Petitioner mayor's position having been classified as Grade 27 in

accordance with R.A. No. 6758, and having been charged with

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violation of Section 3 (e) of R.A. 3019, petitioner is subject to the

jurisdiction of the Sandiganbayan, as defined by Section 4 a. of P.D.
No. 1606, as amended by Section 2 of R.A. No. 7975. By virtue of
the same Section 4 a., as amended, his co-accused are also subject to
the Anti-Graft Court's jurisdiction. (Rodrigo, Jr. v. Sandiganbayan,
G.R. No. 125498, 1999)

Q: Petitioner, a former Secretary of Justice (SG 31), was charged with violations
of RA 9165 or the Comprehensive Dangerous Drugs Act, which she allegedly
committed during her incumbency. Under the said law, the RTC has jurisdiction
over violations thereof. The Information was filed with the RTC. She argues that
based on the allegations, the Sandiganbayan has the jurisdiction to try and hear
the case against her, not the RTC. Is the Petitioner correct?

A: No. The exclusive original jurisdiction over violations of RA 9165 is not

transferred to the Sandiganbayan whenever the accused occupies a position
classified as Grade 27 or higher, regardless of whether the violation is alleged
as committed in relation to office. RA 9165 is the special law excluding from
the Sandiganbayan's jurisdiction violations of RA 9165 committed by such
public officers. In the latter case, jurisdiction is vested upon the RTCs
designated by the Supreme Court as drugs court, regardless of whether the
violation of RA 9165 was committed in relation to the public officials' office.
(De Lima v. Guerrero, G.R. No. 229781, 2017)

N. Term Limits

➢ Tenure and term of office have well-defined meanings in law and

jurisprudence. The term means the time during which the officer may
claim to hold the office as of right, and fixes the interval after which the
several incumbents shall succeed one another. The tenure represents the
term during which the incumbent actually holds the office. The term of

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office is not affected by the hold-over. The tenure may be shorter than
the term for reasons within or beyond the power of the incumbent.
There is no principle, law or doctrine by which the term of an office may
be extended by reason of war. (Fetalino v. Commission on Elections, G.R.
No. 191890, 2012)

1. Senators/Representatives

• Six years that shall commence, unless otherwise provided by law, at

noon on the thirtieth day of June next following their election. No
Senator shall serve for more than two consecutive terms. Voluntary
renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the
full term for which he was elected. (Sec. 4, Art. VI)

• Three years which shall begin, unless otherwise provided by law, at

noon on the thirtieth day of June next following their election.

No Member of the House of Representatives shall serve for more

than three consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected.
(Sec. 7, Article VI)

2. President/Vice President

Six years which shall begin at noon on the thirtieth day of June next
following the day of the election and shall end at noon of the same date
six years thereafter. The President shall not be eligible for any
reelection. No person who has succeeded as President and has served as
such for more than four years shall be qualified for election to the same
office at any time.

No Vice-President shall serve for more than two consecutive terms.

Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of the service for the full
term for which he was elected. (Sec. 4, Art. VII)

3. Justices and Judges

Until they reach the age of seventy years or become incapacitated to

discharge the duties of their office. (Sec. 11, Art. VIII)

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4. Constitutional Commissions

• Seven years without reappointment. (Sec. 1[2], Art. IX-B; Sec. 1[2],
Art. IX-C; Sec. 1[2], Art. IX-D)
|||
➢ The appointment of members of any of the three constitutional
commissions, after the expiration of the uneven terms of office of
the first set of commissioners, shall always be for a fixed term of
seven (7) years; an appointment for a lesser period is void and
unconstitutional. The appointing authority cannot validly
shorten the full term of seven (7) years in case of the expiration
of the term as this will result in the distortion of the rotational
system prescribed by the Constitution. Appointments to
vacancies resulting from certain causes (death, resignation,
disability or impeachment) shall only be for the unexpired
portion of the term of the predecessor, but such appointments
cannot be less than the unexpired portion as this will likewise
disrupt the staggering of terms laid down under Sec. 1 (2), Art.
IX (D). Members of the Commission, e.g., COA, COMELEC or
CSC, who were appointed for a full term of seven years and who
served the entire period, are barred from reappointment to any
position in the Commission. A commissioner who resigns after
serving in the Commission for less than seven years is eligible for
an appointment to the position of Chairman for the unexpired
portion of the term of the departing chairman. Such appointment
is not covered by the ban on reappointment, provided that the
aggregate period of the length of service as commissioner and
the unexpired period of the term of the predecessor will not
exceed seven (7) years and provided further that the vacancy in
the position of Chairman resulted from death, resignation,
disability or removal by impeachment. The Court clarifies that
"reappointment" found in Sec. 1 (2), Art. IX (D) means a
movement to one and the same office (Commissioner to
Commissioner or Chairman to Chairman). On the other hand,
an appointment involving a movement to a different position
or office (Commissioner to Chairman) would constitute a new
appointment and, hence, not, in the strict legal sense, a
reappointment barred under the Constitution. (Funa v. Villar,
G.R. No. 192791, 2012)
5. Local elective officials

Except for barangay officials, three years and no such official shall
serve for more than three consecutive terms. Voluntary renunciation

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of the office for any length of time shall not be considered as an

interruption in the continuity of his service for the full term for which
he was elected. (Sec. 8, Art. X)

6. Ombudsman and Deputies

Seven years without reappointment. (Sec.11, Art. XI)

See Ifurung, supra

2019 Bar

Q: Atty. G ran for Governor of the Province of Pampanga, while his close friend,
Atty. M, ran for Mayor of the Municipality of Guagua, Pampanga. They both
won convincingly. Eventually, the losing candidates timely filed election
protests. The losing gubernatorial candidate, Mr. A, filed his protest before the
Regional Trial Court of Pampanga (RTC), whereas the losing mayoralty
candidate, Mr. B, filed his protest before the Municipal Trial Court of Guagua,
Pampanga (MTC).

What are the term limits for the positions of Atty. G and Atty. M?

A: Under Sec. 8, Art. XI of the Constitution, their term shall be for three years
and they could not serve for more than three consecutive terms. Voluntary
renunciation of the office shall not be considered as an interruption in the
continuity of their service for the full term for which they were respectively
elected.

2019 Bar

A was appointed by the President as a Commissioner of the Commission on

Election (COMELEC) while Congress was not in session. Pending confirmation
of his appointment by the Commission on Appointments, A started to perform
his official functions in the COMELEC, such as attending en banc sessions,
hearing election protests, signing Resolutions, issuing Orders, and appearing
before Congress during budget hearings.

Atty. B questioned before the Supreme Court the exercise of official functions
by A, stating that his ad interim appointment is not a permanent appointment
but a temporary one pending confirmation by the Commission on
Appointments, and thus, prohibited under Article IX-C of the 1987

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Constitution which states that "[i]n no case shall any Member [of the
COMELEC] be appointed or designated in a temporary or acting capacity."

B. If the Commission on Appointments by-passed the confirmation of A, can

he still be reappointed by the President? Explain.

A: Yes, the President is not prohibited to reappoint A. An ad interim

appointment that has lapsed by the inaction of the Commission on
Appointments does not constitute a term of office. This is also not the
prohibited reappointment under Sec. 1(2), Art. IX-C, 1987 Constitution.
(Matibag v. Benipayo)

THANK YOU!

GOOD LUCK, FUTURE ATTORNEYS!

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