LAW OF PUBLIC OFFICES AND PUBLIC

OFFICERS
1. DEFINITION AND GENERAL PRINCIPLES

Public Office- it is the right, authority and

duty, created and conferred by law, by which,
for a given period either fixed by law or
enduring at the pleasure of the creating power,
an individual is invested with some portion of
the sovereign functions of government, to be
exercised by the individual for the benefit of
the public. (Fernandez vs. Sto. Tomas, 242
SCRA 192)
Elements of Public Office

1. It must be created by law or by ordinance

authorized by law;
2. It must possess some sovereign functions of
government to be exercised for public
interest;
3. The functions must be defined, expressly or
impliedly, by law;
4. The functions must be exercised by an officer
directly under the control of the law, not under
that of a superior officer, unless they are
functions conferred by the law upon inferior
officers, who, by law, are under the control of
the superior.
5. It must have some permanency or continuity,
not temporary or occasional. (State vs.
Hawkins, 257 Pac. 411, 53 A.L.R. 583)
How is a Public Office created?

-it is created either by the Constitution, by

statute or by law.
Example:
Offices created by the Constitution - The three
independent commissions; the Office of the
Ombudsman; the Office of the President; the
Legislature and the Supreme Court.
Statutory offices - Metro Manila Development
Authority, National Food Authority, National
Labor Relations Commission, Central Bank of
the Philippines.
Offices created by virtue of validly delegated
power - The Philippine Overseas Employment
Administration (POEA) was created by virtue of
Executive Order No. 797 dated May 1, 1992.
POEA took over the functions of the Overseas
Employment Division Board. In turn, Executive
Order No. 247 dated July 24, 1987, granted
additional powers and functions to the POEA.
Public Officer

• Generally, it refers to an individual invested

with a public office.
• When used under the Revised Penal Code, it
refers to 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 Philippines.
• The term public officer, as it is understood
under Section 2, Republic Act No. 3019,
includes “elective and appointive officials and
employees, permanent or temporary, whether
in the classified, or exempt service, receiving
compensation, even nominal from the
government”.
Public Official

-is an officer of the Government itself, as

distinguished from the officers and employees of
instrumentality of government. Hence, the duly
authorized acts of the former are those of the
government instrumentality which may have a
personality of its own, separate and distinct from
that of the government, as such. (Gonzales vs.
Hechanova, 9 SCRA 230 [1964])
Distinguish Public Office from Employment

An office is a public position created by the

Constitution or law, continuing during the pleasure
of the appointing power, or for a fixed time, with a
successor elected or appointed.
An employment is an agency, for a temporary
purpose, which ceases when that purpose is
accomplished. (Groves vs. Borden, 169 N.C. 8, 84.
S.E. 1942; Lasher vs. People, 183 III. 226, 55 N.E.
663)
Distinguish an Officer form an Employee

An officer is distinguished from a mere employee

in the sense that: (1) His position has greater
importance, dignity and independence; (2) That he
is required to take an official oath, and to give an
official bond; (3) He has greater liability to
account for misfeasance or nonfeasance in office;
(4) That his tenure of office is usually different
from that of an ordinary employee. (Martin, citing
Goodnow, Comparative Administrative Law,
Vol.II, 3)
Distinguish Public Office from Contract
OFFICE CONTRACT
1. It is a creation of 1. Contract arises from the
sovereignty. agreement or will of the
2. It is more lasting in parties.
2. The effectivity of the
nature.
contract may be for a long
3. Its object is to carry out period of time or short
sovereign as well as period of time, as may be
governmental functions agreed upon by the parties.
which involves even 3. The obligations arising from
persons who are not a contract is, as a rule,
parties to the agreement. enforceable only as between
the parties to the contract.
(Article 1311, New Civil
Code)
Classification of a Public Officer

Executive Officers- Those whose duties are mainly

to cause the laws to be executed. (Mechem, Pub.
Off., Section 18)
Legislative Officers- Those whose duties relate
mainly to the enactment of laws. (Ibid., Section 9)
Judicial Officers- Those whose duties are to decide
controversies between individuals and
accusations made in the name of the public
against persons charged with a violation of the
law. ( Ibid., Section 20)
De Jure or De Facto

Officer De Jure- An officer de jure is one who

has the lawful right to the office in all respects,
but who has either been ousted from it, or who
has never actually taken possession of it.
(Mechem, Pub. Off., Section 326)
Officer De Facto- An officer de facto is one who
has the reputation of being the officer he
assumes to be, and yet, is not the officer in
point of law. (Ibid., Section 326)
Other Classifications:

1. Ministerial officers- Those whose duty is to

execute the mandates, lawfully issued, of their
superiors. (Ibid., Section 21)
2. Special agent- It is, in the sense in which these
words are employed in Article 1903 of the Civil
Code, one who receives a definite and fixed
order or commission, foreign to the exercise of
the duties of his office if he is a special official.
(Merritt vs. Gov’t. of the P.I., March 24, 1924)
3. Notary public- Is a public officer whose
function is to attest and certify, by his hand and
official seal, certain classes of document, in
order to give them credit and authenticity in
foreign jurisdictions; to take acknowledgements
of deeds and other conveyances, and certify the
same; and to perform certain official acts, chiefly
in commercial matters, such as the protesting of
notes and bills, the noting of foreign drafts, and
marine protests in cases of loss or damage. (46
C.J.S. 501)
Nature of the Office of the Notary Public

Notaries public are public officers, but not in the

sense that such term is used in the Administrative
Code, because, while it is true that they perform
necessary public duties, however, such duties are
not in the discharge of governmental functions.
They are not necessary to the administration of the
government. Their office exists for the benefit and
convenience of the public. They receive their fees
from the party, whether it is the government itself
or private individual, for whom the service is
rendered.
A lawyer, is the first and foremost an officer of
the court, although not necessarily a public
officer. His duties to the court are more
significant than those which he owes his client.
(Salcedo vs. Hernandez, 61 Phil. 724; Coff-
Perez vs. Lantin, 24 SCRA 391[1968])
2. CHARACTERISTICS OF A PUBLIC OFFICE

a. Public office is a public trust- Under this

principle, public officials in all the leaders of
our government should always remember that
they were merely entrusted by the people to
perform the duties and responsibilities of their
offices for a fixed period of time.
b. Public office is not private property- It cannot
be treated as a personal possession, legacy or
gift. It is not transferrable to another and it
must be relinquished at the end of the term.
c. A public office, like public trust, is built and
founded by the people themselves- Trust, as it
connotes, is reposed only to those who deserve the
trust. Just as the people is the creator of that trust,
so must the people have the right to withdraw it
when there is no more reason for its continuity.
d. There can be no vested right in the public office
or its salary- At the will of the legislature, a public
office may be changed or even abolished. Besides
such abolition, its term, compensation and powers
may be validly reduced even over the objection of
the incumbent.
3. REQUIREMENTS FOR PUBLIC OFFICE:
(a) Appointment; (b) Designation; (c) Commission

Distinguish Appointment from Designation

Appointment is the selection, by the authority
vested with power, of an individual who is to
exercise the functions of a given office. When
completed, usually with its confirmation, the
appointment results in security and tenure for the
person chosen unless he is replaceable at pleasure
because of the nature of his office. (Sevilla vs. Court
of Appeals, G.R. No. 88498, June 9, 1992, First
Division, Griño – Aquino, J.)
Designation may also be loosely defined as an
appointment because it likewise involves the naming of
a particular person to a specified public office. That is
the common understanding of the term. However, where
the person is merely designated and not appointed, the
implication is that he shall hold the office only in a
temporary capacity and may be replaced at will by the
appointing authority. In these sense, the designation is
considered only an acting or temporary appointment,
which does not confer security of tenure on the person
named. (Ibid.) Furthermore, the designation merely
connotes an imposition of additional duties, usually by
law, upon a person already in the public service by
virtue of an earlier appointment.
It does not entail payment of additional benefits
or grant upon the person so designated the
right to claim the salary attached to the
position. Without an appointment, the
designation does not entitle the officer to
receive the salary of the position. The legal
basis of an employee’s right to claim the salary
attached thereto is a duly issued and approved
appointment to the position, and not a mere
designation. (National Amnesty Commission
vs. Commission on Audit, G.R. No. 156982,
September 8, 2004)
Who Exercises Appointing Power?
The determination of who among the several candidates
for a vacant position has the best qualifications, is vested
in the sound discretion of the department head or
appointing authority and not in the Civil Service
Commission. Every particular job in an office calls for
both formal and informal qualifications. Formal
qualifications such as age, number of academic units in a
certain course, seminars attended, and so forth, may be
valuable but intangibles like resourcefulness, team spirit,
courtesy, initiative, loyalty, ambition, prospects for the
future, and best interests of the service are also available.
Given the demands of a certain job, who can
do it best should be left to the head of the
office concerned provided the legal
requirements for the office is satisfied. The
Civil Service Commission cannot substitute its
judgment for that of the head of office in this
regard. (Español vs. Civil Service Commission,
G.R. No. 85479, March 3, 1992, En Banc,
Regalado, J.)
When does an Appointment Take Effect?

CSC Resolution No. 91- 1631 expressly

provides that in no case shall an appointment
take effect earlier than the date of its issuance.
Distinguish the following terms:
(1) Appointment; (2) Commission; (3) Designation

APPOINTMENT DESIGNATION COMMISSION

It is the selection, by Connotes merely the Is the written
the authority vested imposition by law of evidence of the
with the power of an additional duties on appointment.
individual who is to an incumbent
exercise the power official. (Ibid.)
of a given office.
(Binamira vs.
Garucho, 188 SCRA
154)
CLASSIFICATION OF APPOINTMENT: (A)
REGULAR APPOINTMENT; (B) AD INTERIM APPOINTMENT;
(C) PERMANENT APPOINTMENT; (D) TEMPORARY
APPOINTMENT

Distinguish Regular from Ad Interim Appointment

REGULAR AD INTERIM
It is an appointment made by the It is an appointment made while
President while Congress is in Congress is not in session, before
session after the nomination is confirmation by the Commission
confirmed by the Commission on on Appointments. It is
Appointments. It continues until immediately effective and ceases
the end of the term. to be valid if disapproved or
bypassed by the Commission on
Appointments upon the next
adjournment of Congress.
Nature of an Ad Interim Appointment
- An ad- interim appointment is permanent in
nature, and the circumstance that it is subject
to a confirmation by the Commission on
Appointments does not alter its permanent
character. (Summers vs. Ozaeta, G.R. No. L-
1534, October 25, 1948; Pamantasan ng
Lungsod ng Maynila vs. Intermediate
Appellate Court, 140 SCRA 22)
Distinguish Permanent Appointment from
Temporary Appointment

Permanent Appointment - one issued to a

person who has met the requirements of the
position to which appointment is made, in
accordance with the provisions of the Civil
Service Act and the Rules and Standards
promulgated in pursuance thereof.
Temporary Appointment- one who holds temporary
appointment has no fixed term of office and employment can
be terminated at the pleasure of the appointing authority, there
being no need to show that the separation is for cause (San
Pedro vs. Civil Service Commission, G.R. No. 1003321
February 12, 1992, En Banc). Hence, in the absence of
appropriate eligible and it becomes necessary in the public
interest to fill a vacancy, a temporary appointment shall be
issued to a person who meets all the requirements for the
position to which he is being appointed except the appropriate
civil service eligibility: Provided , that such temporary
appointment shall not exceed twelve months, but the appointee
may be replaced sooner if a qualified civil service eligible
becomes available. (Chua vs. Civil Service Commission, G.R.
No. 88979, February 7, 1992, En Banc, Padilla, J.)
Should an appointee with a temporary status possess
the civil service eligibility required?
Under Section 25, Presidential Decree 807, otherwise
known as the Civil Service Decree of the Philippines, an
appointee with a temporary status need not possess the civil
service eligibility required by the position provided he
meets the following qualifications: (a) it is necessary in the
public interest to fill a vacancy; (b) there are no appropriate
eligibles; (c) the temporary appointment shall not exceed
twelve months; and (d) he may be replaced sooner if a
qualified civil service eligible becomes available. (Torio vs.
Civil Service Commission, G.R. No. 99336; Espanola vs.
Civil Service Commission, G.R. No. 100178, June 9, 1992,
En Banc, Gutierrez, Jr., J.)
Is a person temporarily appointed to a Civil Service
position entitled to security to tenure even if he lacks the
needed qualifications for the said position?

No. The holder of the position can only enjoy

security to tenure if he or she possesses the
qualifications and eligibility prescribed for it.
(House of Representatives vs. Loanzon, G.R. No.
168267, February 16, 2006)
Who should be given preference for appointment
to new positions?
Section 4 of Republic Act No. 6656 provides: “Officers and
employees holding permanent appointments shall be given
preference for appointment to the new positions in approved
staffing pattern comparable to their former positions or in
case there are not enough comparable positions, to positions
next lower in rank.” (Torio vs. Civil Service Commission,
G.R. No. 100178, June 9, 1992, En Banc, Gutierrez, Jr., J.)
REASON: The preference given to permanent employees
assumes that employees working in Department for longer
periods have gained not only superior skills but also greater
dedication to the public service. (Ibid.)
If after considering all the current employees, the Department
Secretary cannot find among them the person he needs to
revive a moribund office, or to upgrade second rate
performance, can he reach out to other departments or to the
private sector in choosing a person he needs?
The law does not preclude the infusion of new blood, younger
dynamism or necessary talents into the government office. If,
after considering all the current employees, the Department
Secretary cannot find among them the person he needs to revive a
moribund office or to upgrade second rate performance, there is
nothing in the Civil Service Law to prevent him from reaching
out to other Departments or to the private sector provided all his
acts are bona fide and for the best interest of the public service
and the person chosen has the needed qualifications. (Ibid.)
5. DIFFERENT STEPS IN THE PROCESS OF
APPOINTMENT
For regular appointments For appointments which For appointments to the
which need confirmation do not need confirmation career service of the civil
of CA of CA service
1. Nomination by the 1. Appointment by appointing 1. An appointment to the
President authority career service of the Civil
2. Confirmation by the CA 2. Issuance of the commission Service is not deemed
3. Issuance of the commission 3. Acceptance by the complete until attestation
4. Acceptance by the appointee approval by the Civil
appointee - Acceptance of the Service Commission.
- In case of ad interim appointment by the Without the favorable
appointments, the appointee is the last act that certification or approval of
nomination, issuance of the completes the appointing the CSC, no title to the
appointment and process. (Lacson vs. office can be deemed to be
acceptance by the appointee Romero, 84 Phil. 740) permanently vested in favor
precede the confirmation by of the appointee, and the
the CA appointment can still be
revoked or withdrawn by
the appointing authority.
Can a person be compelled to accept an office?

No. REASON: There is no law which can compel a

person to accept an office except as may be required
under Section 4, Article II of the 1987 Constitution
which provides as follows: “Section 4. The prime
duty of the Government is to serve and protect the
people. The Government may call upon the people
to defend the State and, in the fulfillment thereof, all
citizens may be required, under conditions provided
by law, to render personal military or civil service.”
Appointment has been made and the appointee has
assumed the duties and functions of the position in the
Civil Service Commission. Can the said appointment be
revoked by the appointing authority on the ground that
the protestant is more qualified than the first appointee?

No. The person so appointed acquired a

legal right to his position which is
protected by law and the Constitution.
6. WHAT IS THE BEST EVIDENCE OF AN
APPOINTMENT?

The best evidence of an appointment is

his written commission. (The delivery of
the commission is the last act required by
the appointing power and the same
completes the appointment.)
7. KINDS OF ACCEPTANCE

1. Express- It may be verbally or in writing; and

2. Implied- If the officer is in the actual occupation

and exercise of the office, his acceptance of it
would be presumed. (Mechem, Pub. Off., Section
252)
How is a Public Officer chosen?

A public officer is chosen either by

appointment or election.
8. DISTINCTION, APPOINTMENT & ELECTION

In appointment, the person who is to exercise the

function of a given office is made by the executive
officer, board, or body, to whom the power to
designate is given (Appari vs. Court of Appeals, 127
SCRA 231). In election, the choice is made by an
enfranchised by virtue of the right of suffrage.
Example of elective officials:

President, Vice-President, Members of

Congress, Governor, Vice-Governor,
Board Members, Mayor, Vice-Mayor,
Councilors, Barangay Chairman and
Councilmen
Example of Appointed Officers by the President
Cabinet members, Commissioners of
different commissions, ambassadors, consuls,
officers of the AFP, from rank of colonel or
naval captain, all other officers of the
government whose appointments are not
provided by law, and those whom he may be
authorized by law to appoint.
Can the power of appointment be delegated? Why?

No, because appointment involves the

exercise of discretion.
Is the presidential power of appointment absolute?
No, it is subject of the following limitations:
1. 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 and 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 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
department, agencies, commissions, or boards.
 The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or
until the next adjournment of the Congress.

2. 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 to the Office of the Ombudsman, or as
secretaries, undersecretaries, chairman or heads of bureaus or
offices including government- owned or controlled
corporations and their subsidiaries. (Section 13, 2nd
paragraph, Article VII, 1987 Constitution)
3. Two months immediately before the next presidential
elections and up to the end of his term, a President or Acting
President shall not make appointments, except temporary
appointments to executive positions when continued
vacancies therein will prejudice public service or endanger
public safety.
4. Appointments of an Acting President shall remain effective,
unless revoked by the elected President within 90 days from
his assumption or re- assumption of office. (Section 14,
Article VII)

5. The appointees of the President must possess the required

qualifications. The appointee concerned may be questioned
in appropriate court proceedings.
When is confirmation of the Commission on
Appointments required?
It is required only for the offices mentioned in Section
16, first sentence, Article VII of the 1987 Constitution, to
wit:
Code: H-A-O-A
H -eads of the executive department
A -mbassadors, or other public ministers and consuls
O -fficers of the armed forces from the rank of
colonel or naval captain
A - nyone whom he can appoint by authority to law.
When is confirmation of the Commission on
Appointments not required?

1. Other officers whose appointments are

vested in him in this Constitution.
2. All other officers of the government
whose appointments are not provided
by law.
Does the appointment of the Chairman of the
Commissioners of the Commission on Human Rights need
the confirmation of the Commission on Appointments?

No.
REASON: The position of the
Commission on Human Rights is not
among the positions mentioned in Section
6, first sentence, of Article VII of the
1987 Constitution. (Bautista vs. Salonga,
72 SCRA 169)
Does the appointment of sectoral representatives
need the confirmation of the Commission on
Appointments?

Yes, because this position is covered by

Section 16, first sentence, of Article VII
of the 1987 Constitution. (Quintos- Deles
vs. Commission on Appointments, 177
SCRA 259)
Does the appointment of Chairman and commissioners of
the NLRC need the confirmation of the Commission on
Appointments?

No. They are not among the officers mentioned in

Section 16, first sentence.
The appointment was described as permanent in the space
provided for in Civil Service Form No. 33, but the words
“Approved as Temporary” was stamped in the appointment.
The appointee is qualified and other legal requirements as
satisfied. Is the Civil Service Commission authorized to
determine the kind or nature of the appointment extended by
the appointing officer, or will it just attest to the appointment
in accordance with Civil Service Laws?
The Civil Service Commission is not empowered to determine the
kind or nature of the appointment extended by the appointing power.
What it can do is only either to approve or review the appointment to see
to it that the requirements of the Civil Service Commission are complied
with. When all legal requirements are complied with and the appointee is
qualified what the Civil Service Commission has to do is only to attest to
the appointment. (Luego vs. Civil Service Commission, 143 SCRA 327)
Much later, in Lopez vs. Civil Service Commission (G.R. No. 92140,
February 19, 1991), the Supreme Court ruled that what the Civil Service
Commission may do is just to determine whether or not the appointee
possesses the qualifications and requisite eligibility. If the appointee is
qualified and eligible, his appointment is approved, and if not, his
appointment is disapproved. A month after the decision in Lopez vs.
Civil Service Commission, the Supreme Court elucidated further the
ruling in Lopez and said: “As long as the appointee possesses the
minimum qualifications prescribed by law or regulations, there is no
question that his appointment must be respected by the Civil Service
Commission even if it be proved that there are others with superior
credentials. However, this rule does not cover those cases where it is
found by the Commission, after examining the appointment papers,
that the appointee does not satisfy the minimum qualifications for the
position in question. In these cases, the Commission would be well
within its right- and responsibility- in refusing to approve the
appointment.” (Cortes vs. Civil Service Commission, G.R. No. 92673,
March 13, 1991, En Banc, Cruz, J.)
Can the Civil Service Commission revoke an
appointment in the belief that another is better
qualified than the appointee?
The Supreme Court ruled: “The Civil Service Commission
has no authority to revoke an appointment simply because it
is believed that another is better qualified than the
appointee for that would have constituted an encroachment
of the discretion vested solely in the appointing authority.
The Commission cannot exceed its power by substituting its
will for that of the appointing authority. (Lopez vs. Civil
Service Commission, G.R. No. 92140, February 19, 1991,
En Banc, Gutierrez, Jr., J.)
9. WHAT IS REQUIRED FOR AN OFFICE TO BE
FILLED UP EITHER BY AN APPOINTMENT OR
BY ELECTION?

The office to be filled up should be vacant following the

principle that no person may be an appointed to an office
which is not vacant no matter how qualified he is for a
certain position. (Jacom vs. Regalado, 24 SCRA 73)
Do the courts have jurisdiction over void
appointments?

Yes. While an appointment is an essentially discretionary

executive power, it is subject to the limitation that the
appointee should possess none of the disqualifications but
all the qualifications required by law. Where the law,
prescribes certain qualifications for a given office or
position, courts may determine whether the appointee has
the requisite qualifications, absent which, his right thereto
may be declared void. (Engano vs. Court of Appeals, G.R.
No. 156959, June 27, 2006)
When does Vacancy exist?

It exists when there is no person lawfully authorized

to assume and exercise at present the duties of the
office.
Different Kinds of Vacancies

CODE: O-C-A-A
O-riginal (There is an office which is created but no one has
as yet been chosen to fill it.)
C-onstructive (In this kind of vacancy, the incumbent has no
legal right to the office and he may be replaced.
A-ccidental (When on account of death, resignation, removal
or abandonment, the incumbent is separated from the
service.
A-bsolute (There is no successor yet to the incumbent whose
term expired.)
10. ELIGIBILITY AND QUALIFICATION

A. MEANING OF THE TERM “QUALIFICATION”

It is understood in different senses: (1) It may refer to the

qualities or endowments required of the public officer in order
that he may be considered eligible for public office (i.e. age,
citizenship, and academic qualifications); (2) It may refer to
the act of enabling a person to perform the duties and
functions of his office (i.e. taking the oath of office).
In the first one, the person appointed or elected must possess
the prescribed qualifications at the time of his appointment or
election and during the period of the official relationship.
In the second, the failure to perform an act required by law
could affect the officer’s title to the given office. An oath of
office is a qualifying requirement for a public office
(Lecaroz vs. Sandiganbayan, G.R. No. 130872, March 25,
1999). Under Batas Pambansa Blg. 881, Section 11, thereof,
it is provided that “the office of any official elected who
fails or refuses to take his oath office within six months
from his proclamation shall be considered vacant, unless
said failure is for a cause or causes beyond his control.”
[Example: (1) Taking an oath or affirmation to uphold and
defend the Constitution; (2) Accountable officers are
required to be properly bonded]
Can property qualifications be imposed for the
exercise of the right to run for public office?

A law which required all candidates to post a P20,000.00

bond upon the filing of their certificates of candidacy, and
which provided its confiscation if they did not obtain at
least 10% of the total votes cast in the constituency where
they were running, was declared unconstitutional and null
and void by the Supreme Court (Maquira vs. Borra, 15
SCRA 7). REASON: The said law is inconsistent with the
nature and essence of the Republican System and the
principle of social justice.
Who prescribes the qualifications?

Qualifications may be prescribed by the Constitution or by

statute. If the same are prescribed by the Constitution, the
qualifications are specifically enumerated and the
legislature cannot impose additional qualifications. If the
qualifications are prescribed by law, it must do so in such a
detailed manner so as not to leave any discretion to the
appointing power in making a choice of the person to be
appointed. Moreover, the qualification prescribed must be
relevant to the position.
Example:
On The Matter Of Imposing Additional Qualifications
Can Congress pass a law requiring a college degree as
an added qualification to be senator or congressman?

No, because the said law is unconstitutional.

Can Congress pass a law requiring a college degree as
an added qualification of the President and Vice-
President of the Philippines?

No, because the said law is unconstitutional.

Can the Constitutional Convention approve a
constitutional provision requiring additional qualifications
of a President, Vice- President, Senator and Congressman?

Yes, because the power to amend the Constitution has been

entrusted by the people to the delegates of the
Constitutional Convention whom they have chosen to
represent them in the said convention. Moreover, when the
Constitution, drafted and approved by the said
Constitutional Convention, was duly approved in a
plebiscite, the people have necessarily approved the said
constitutional provision.
Can the Legislature prescribe qualifications in a
general manner?

Yes. This happens if the intention of the legislature

is to allow a widest possible field of choice.
When can the legislature prescribe additional
qualifications?

This becomes possible (1) when the Constitution does not

prescribe a qualification or qualifications; or (2) When the
Constitution prescribes only for minimum qualifications.
What is the restraint or limitation to Congress when it
exercises its right to prescribe qualifications or
disqualifications?

The qualifications or disqualifications it prescribes should

not violate the Constitution. Otherwise, it can be assailed as
unconstitutional. Hence, if a law provides that the mere
filing of a criminal information for disloyalty is prima facie
evidence of guilt which is sufficient to disqualify a person
from running for public office, the said law is, as it was
considered, unconstitutional (Dumdao vs. Comelec, 95
SCRA 400). REASON: It violates the principle that a
person is presumed innocent until his guilt is proved beyond
reasonable doubt.
B. QUALIFICATIONS ARE CONTINUING
REQUIREMENTS
When should the prescribed qualifications be possessed
by a person, who is either appointed or elected?

They should be possessed on the date indicated by the

Constitution or by law, and they are continuing requirements
which means that they must be possessed not only on the date
of selection or assumption but for the full duration of the
officer’s incumbency. (Aguila vs. Genato, 103 SCRA 380)
Example: Under the 1987 Constitution, the age qualification must
be possessed on the day of the election, not on the day of the
proclamation of the winners of the board of canvassers, which
was the reckoning period used in the case of Espinoza vs.
Aquino. (Electoral Case No. 9, Senate Electoral Tribunal)

What happens if any of the qualifications is lost during the

tenure?

The right to the office is automatically forfeited.

11. DISQUALIFICATIONS

Who prescribes the disqualifications?

Disqualifications may also be prescribed by the

Constitution or by statute.
SPECIFIC DISQUALIFICATIONS UNDER THE
CONSTITUTION
Judicial Department
1. The members of the Supreme Court and other courts
established by law shall not be designated to any agency
performing quasi- judicial or administrative functions.
(Section 12, Article VIII)
Executive Department
1. The president, Vice- President, the Members of the
Cabinet, and their deputies and assistants shall not, unless
otherwise provided in the Constitution, hold any other
office or employment during their tenure. (Section 13,
Article VII)
2. They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in other business,
or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or
any subdivision, agency, or instrumentality thereof,
including government- owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
3. 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.
Legislative Department
1. No Senator or Member of the House of
Representatives may hold any other office or
employment in the government, or any subdivision,
agency, or instrumentality thereof, including
government- owned or controlled corporations or
their subsidiaries, during his term without forfeiting
his seat. Neither shall he be appointed to any office
which may have been created or the emoluments
thereof increased during the term for which he was
elected. (Section 13, Article VI)
Constitutional Commissions
1. No member of a Constitutional Commission shall, during his
tenure, hold any other office or employment. Neither shall he
engage in the practice of any profession or in the active
management or control of any business which in any way may
be affected by the functions of his office, nor shall he 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 of their
subsidiaries. (Section 2, Article IX)
2. 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.
3. The Chairman of 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. (Article IX-B, Section 1[2])
Ombudsman and his deputies
1. 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. (Section 11, Article XI)

NOTE: The National Amnesty Commission ex officio members’

representatives are covered by the constitutional prohibitions
against holding multiple positions in the government and
receiving double compensation because there is no law or
administrative order creating a new office or position and
authorizing additional compensation therefore. (National
Amnesty Commission vs. Commission on Audit, G.R. No.
156982, September 8, 2004)
12. FAILURE TO QUALIFY

Does the delay in qualifying means that the office is

automatically forfeited?
No. It will only give a justification to appropriate superior
authorities to prevent entry into the office until such time that the
delay is explained by the appointee. Hence, mere delay in the
taking of an oath does not mean that the office is rejected and when
the oat is taken, the default is waived. However, if the law requires
qualification within a specified time and provides further that
failure to do so will result in automatic loss of the right to the
office, this has to be complied with. Otherwise, the right to the
office is automatically lost.
13. DE FACTO OFFICERS; DISTICTIONS, DE
JURE OFFICER AND DE FACTO OFFICER
De Facto Officer
A person is considered de facto officer:
1. When, 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 assumed
to be;
2. When, there is a color of a known and valid appointment or
election, but where the officer had failed to conform to some
precedent, requirement, or condition, as take an oath, give a
bond, or the like;
3. When he exercised his duties under a color of a known appointment
or election; or that there was a want of power, in the electing or
appointing body; or there is some defect or irregularity in its
exercise, and such ineligibility, want of power, or defect is unknown
to the public. For said reasons, the acts of the de facto officer are
void.
4. When there was color of an election or an appointment but such is
based on an unconstitutional law. Here, the person exercising the
duties is considered de facto officer before the said law is adjudged to
be unconstitutional. (Martin, citing Conn, 449, 9 Am. Rep. 409; Luna
vs. Rodriguez, 37 Phil. 186)
In recent jurisprudence, the following are considered a de facto
officer:
1. 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. (Corpuz vs. Court of Appeals, 285
SCRA 23)
2. A de facto officer is defined as 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.
(Dimaandal vs. Commission on Audit, 291 SCRA 322)

3. A de facto officer is one who is in possession of an office, and is

discharging its duties under color of authority, by which is meant
authority derived from an appointment, however irregular or
informal, so that the incumbent be not a mere volunteer. (Ibid.)

4. A de facto officer is one who is in possession of an office in the

open exercise of its functions under color of an election or an
appointment, even though such election or appointment may
be irregular
What is the basis of the rationale of the de facto
officer?

It is unreasonable to require the public to inquire into the title of

an officer, or compel him to show title because the public do not
have time and opportunity to investigate the title of the
incumbent. As a matter of policy and necessity, the doctrine
serves to protect the public and the individuals whenever their
interests are involved in the official acts of persons exercising
the duties of an office. (Tayko vs. Capistramo citing State vs.
Caroll, 38 Conn. 449, 9 Am. Rep. 409)
Are the acts of a de facto officer, insofar as they
affect the public, valid?
They are valid and legal insofar as they affect the public.

What are the liabilities of a de facto officer?

(1) He is liable upon his bond
(2) He is liable for his negligence
(3) He is liable for his embezzlement
(4) He is liable for malfeasance in his assumed office
(Mechan on Public officers, 336- 338, 341)
Elements of a de facto office

CODE: VAC
V- alid and legitimate office
A- ctual possession of said office in good faith
C- olor of title to the office or general acquiescence by the
public
When is there a color of title to the office?
Same answer as in the first question and answer, No. 13, as
above mentioned.
Distinguish de jure officer from that of a de facto
officer
De Facto Officer De Jure Officer
1. A de facto officer may be 1. A de jure officer cannot be
ousted in a direct removed.
proceeding against him.

2. A de facto officer has the 2. A de jure officer has the

possession and performs the lawful right or title without
duties under color of right, the possession of the office.
without being legally
qualified to act. (Martin
citing Takyo vs. Capistrano,
53 Phil. 866)
EXAMPLES OF THE ELEMENTS OF A DE FACTO
OFFICE
1. Valid and Legitimate
If Mr. A was not validly elected or appointed, or he is not eligible,
and he occupies a legitimate office, is he a de jure or de facto
officer?
- He is a de facto officer.
Same example but the office itself is void, but Mr. A was validly
elected or a appointed, is he a de jure or de facto officer?
- He is neither a de facto officer nor a de jure officer for no office at
all exists.
Suppose Mr. A, a candidate for public office was proclaimed in
an election which was irregularly held, is he a de facto officer?
- He is a de facto officer before she said election is nullified.
2. Color of Title- When a judge in good faith remains in officer after
his previous valid appointment has lapsed and the public
continues to acquiesce his acts, and during the time he was
regarded as a judge, his successor has not been appointed, he is
considered as a de facto judge.
Another example is a case where one is qualified and eligible but he
was appointed by one who was not empowered or authorized to make
an appointment.
A mayor who insisted to remain in his office despite the forfeiture of
his office is a de facto officer.
3. Actual Possession of the Office- A decision promulgated by a judge
who already ceased to be a judge of the Court presided by him, is
void. REASON: He has no more authority to promulgate the said
decision.
The decision is likewise void if after he ceased as a judge, it was
promulgated under another judge. (Solis vs. Court of Appeals, 38
SCRA 53)
RIGHT TO COMPENSATION

Can a de facto officer claim salary or compensation for salaries

rendered by him as such?
- The rule in Monroy vs. Court of Appeals is to the effect that a de
facto officer, not having good title take the salaries at his risk and
must therefore account to the de jure officer for whatever amount of
salary he received during the period of his wrongful retention of
public office. (20 SCRA 620)
The said rule, however, does not apply if there is no de jure public
officer, in which case, that de facto officer shall be entitled to the
salaries prescribed by law for the given office during the period when
he actually discharged the functions of said office.
 NOTE: In the following cases, an officer, although de
facto, was declared to be entitled to compensation:
(1) RODRIGUEZ vs. TAN (91 Phil. 724)- The successful
Protestant was claiming to recover the salaries collected by
the protestee before he was ousted from the Senate. This was
denied. REASON: The protestee was duly proclaimed as
Senator and he assumed office as required by law, hence, he
is entitled to compensation, emoluments and allowances
which our Constitution provides for one position.
(2) MENZON vs. PETILLA (197 SCRA 251)- Petitioner
assumed the office of the Vice- Governor under color of a
known appointment. He was appointed by the DILG
Secretary, and thereafter, he took his oath of office. Later, the
validity of his appointment became an issue and the
recognition withdrawn. The Supreme Court ruled that it is
iniquitous to deny the salary due to the petitioner for services
Can a de facto officer be made to reimburse funds
disbursed by a de facto officer during his term of office?
- Yes. REASON: Because his acts are as valid as a de jure
officer.

Is a de facto officer subject to the same liabilities that are

imposed to a de jure officer?
- Yes. REASON: He assumed the office at his own risk and
he must be prepared to be held responsible for the
performance of his duties.
ACTION TO TAKE AGAINST DE FACTO OFFICER

Can a de facto officer be ousted in a collateral action?

-A de facto officer may be ousted in a direct proceeding, not in a collateral
action. A direct and authorized proceeding is Quo Warranto under Section
1, Rules 66 of the New Rules of Court which provides as follows:
“SECTION 1. Action by Government against individuals- An action
for the usurpation of a public office, position or franchise may be
commenced by a verified petition brought in the name of the Republic of
the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercise a
public office, position or franchise;
(b) A public officer who acts as a corporation which, by the provision of law,
constitutes a ground for the forfeiture of his office;
(c) An association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority so to act. (1a)
14. COMMENCEMENT OF OFFICIAL RELATIONS

Earlier, it was mentioned that a public officer is chosen either

by appointment or election. It is also through appointment or
election that official relations are commenced?
-Yes.

NOTE: Before proceeding to the eight important principles

(which is the next topic), remember thoroughly the discussion
of the requirements for public office (the preceding topic),
particularly the different kinds of appointments, distinction
between appointment, designation and commission, distinction
between appointment and election, different kinds of
vacancies and eligibility and qualification.
15. EIGHT (8) IMPORTANT PRINCIPLES

CODE: AT-NEXT-DM-PML
1.) Appointment
2.) Torio vs. CSC
3.) The next-in-rank rule
4.) De facto/ De jure
5.) Matters that fall within the exclusive jurisdiction of the CSC
6.) Kinds of Personnel Actions
7.) Modes of Termination of official relationship
8.) Liability of Public Officers
EXPLANATION OF EACH OF THE SAID
PRINCIPLES

1. Appointment
7 PRINCIPLES REGARDING POWER AND
AUTHORITY TO MAKE AN APPOINTMENT
a) Essentially a discretionary power
b) The appointing authority, not the CSC, determines who, among the
several candidates for a vacant position, has the best qualification
c) CSC has no authority to direct the appointing authority to appoint a
certain person
d) Once appointment is issued and the moment the appointee assumes a
position in the civil service under a complete appointment, he
acquires a legal, not merely equitable right which is protected by the
Law and the Constitution.
e) Once the discretionary power of appointment has been exercised and
the appointee assumed the duties and functions of the position, the said
appointment cannot be revoked by the appointing authority, on the mere
ground that the protestant is more qualified than the first appointee.
f) An appointee with a temporary status need not possess the Civil Service
eligibility required by the position. This is subject to the qualifications
in Torio vs. CSC.
g) The “next in rank” rule is not absolute.
2. Torio vs. CSC
An appointee with a temporary status need not possess the Civil Service
eligibility required by the position provided he meets the following
qualifications:
(1) It is necessary in the public interest to fill up the vacancy
(2) There are no appropriate eligibles
(3) The temporary appointment shall not exceed 12 months
(4) He may be replaced sooner if a qualified Civil Service eligible
becomes available. (Sec. 25, Presidential Decree No. 807; Torio vs.
CSC, G.R. No. 100198, June 9, 1992)
3. The “Next-In-Rank Rule”
This may be disregarded even in case of promotions, and even in
promotions, it can be disregarded for sound reasons make known to
he next-in-rank.
The appointing authority under the CSC, is allowed to fill vacancies
by promotion, transfer of present employees, reinstatement, re-
employment and appointment of outsiders who have appropriate Civil
Service eligibility, not necessarily in that order.

THERE IS NO LEGAL FIAT THAT A VACANCY MUST BE

FILLED ONLY BY PROMOTION. THE APPOINTING
AUTHORITY IS GIVEN A WIDE DISCRETION TO FIL A
VACANCY FROM AMONG THE SEVERAL ALTERNATIVES
PROVIDED BY LAW. (Espanol vs. CSC, G.R. No. 85479, March 3,
1992)
4. De Facto/ De Jure
Already discussed. Just remember the following important
points thus:
1. Distinctions, de jure and de facto officer
2. Elements of a de facto office: (a) Valid and legitimate office;
(b) Actual possession of his office; (c) Color of title to the
office
3. Liabilities of a de facto officer
4. A de facto officer may be ousted in a direct proceeding, not in a
collateral action.
Example of direct proceeding: Quo Warranto
5. Rationale for allowing a de facto officer to recover compensation
6. Basis of the rationale of the de facto officer
5. Matters that fall within the exclusive jurisdiction of the CSC
Disciplinary cases, and cases involving “personal actions” affecting
employees in the civil service including “appointment through
certification, promotion, transfer, reinstatement, reemployment, detail,
reassignment, demotion and separation,” and, of course, employment
status and qualification standards, are within the exclusive jurisdiction
of the Civil Service Commission.
6. Kinds of personnel actions
CODE: PAT-RE-RE-RE-DE
P- romotion
A- ppointment through certification
T- ransfer
RE- employment
RE- assignment
RE- instatement
DE-tail
 Promotion Appointment Transfer Reemployment
Through
Certification

It is a movement It is issued to a It is a movement Names of persons

from one person who has from one who have been
position to been selected position to appointed
another with from a list of another which is permanently to
increase in qualified persons of equivalent positions in the
career service and
duties and certified by the rank, level or who have been
responsibilities CSC from an salary without separated as a
as authorized by appropriate break in service. result of reduction
law and usually register of Transfer may be in force and/ or
accompanied by eligibles, and imposed as an reorganization,
an increase in who meets all administrative shall be entered in
pay. the penalty under a list from which
qualifications current Civil selection from
prescribed for Service Rules. reemployment
the position. shall be made.
 Reassignment Reinstatement Detail

An employee may Any person who has It is the movement

be reassigned from been permanently of an employee from
one organizational appointed to a one agency to
unit to another in the position in the another in the same
same agency, career service and agency, provided
provided that such who has, through no that such
reassignment shall delinquency or reaasignment shall
not involve a misconduct, been not involve
reduction in rank, separated therefrom, reduction in rank,
status or salary. may be reinstated to status or salary.
a position in the This is a prerogative
same level for which of the CSC.
he is qualified.
THE “NEXT-IN-RANK” RULE IS NOT ABSOLUTE
This may be disregarded even in case of promotions. The
next in rank rule is not absolute. It only applies in case of
promotions. It only applies in cases of promotions. And
even in promotions it can be disregarded for sound reasons
made known to the next-in-rank. The appointing authority,
under the Civil Service Law, is allowed to fill vacancies by
promotion, transfer, or present employees, reinstatement, re-
employment, and appointment of outsiders who have
appropriate civil service eligibility, not necessarily in that
order. There is no legal fiat that a vacancy must be filled
only by promotion; the appointing authority is given wide
discretion to fill a vacancy from among the several
alternatives provided by law. (Espanol vs. Civil Service
Commission, G.R. No. 85479, March 3, 1992, En Banc,
Regalado, J.)
Must all appointments involved in a chain of promotions
be submitted for approval of the Civil Service
Commission?

“All appointments involved in a chain of promotions must be

submitted simultaneously for approval by the Commission. The
disapproval of the appointment of a person proposed to a higher
positions invalidates the promotion of those in the lower positions and
automatically restores them to their former positions. However, the
affected persons are entitled to payment of salaries for services
actually rendered at a rate fixed in the promotional appointments.”
This is known as the Automatic Reversion Rule. (Section 13,
Omnibus Rules Implementing Book V, E.O. 292)
What are the requisites in order that said rules will apply?
1. There must be a series of promotions.
2. All promotional appointments are simultaneously submitted to the
Commission for approval.
3. The Commission disapproves the appointment of a person to a higher
position. (Divinagracia vs. Sto. Tomas, G.R. No. 110954, May 31,
1995)

APPOINTMENT THROUGH CERTIFICATION

What is required for this kind of appointment?
4. The person to be selected or selected is in a list of qualified persons
certified by the CSC from an appropriate register in eligibles.
5. The person to be selected or selected meets all the qualifications
prescribed for the position.
TRANSFER

Is the transfer of an employee from one position to another a

violation of his security of tenure even if results to his promotion?
-Yes, if the said employee is removed without his consent. REASON:
That amounts to removal from office.

Is it possible that an employee is permanently transferred to another

position without violating his security of tenure?
This is possible if an employee is lawfully removed first from his
position, and thereafter, he is appointed to another position which is of
equivalent rank, level or salary.