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Chapter 2Requirements for Public Office

Selection for Public Office

A public officer is chosen either by appointment or election.

Under the Constitution, the President is authorized to appoint the ff. officers:(HAACOL)

1. H eads of the executive departments2. A mbassadors, other public ministers and consuls3. Officers of the armed forces from the rank of colonel or naval captain4. Those other officers whose appointments are vested in him by the

Constitution5. All other officers of the government whose appointments are not

provided for by law6. Those whom he may be authorized by law to appoint

Elective officials: Senators, members of HR and local legislative bodies

including governors, vice governors, mayors, vice mayors, brgy. Chairmenand councilmen

Appointment vs. Designation

Appointment is the act of designation by the appointing officer, bodyor board, to whom that power has been delegated, of the individualwho is to exercise the functions of a given office (Appari vs. CA)

Designation is the mere imposition of new duties on the officer to beperformed by him in a special manner

the word appointment connotes permanency while designationimplies temporariness; thus, to designate a public officer to another

position may mean to vest him additional duties while he performs thefunctions of his permanent office (Triste vs. Leyte State College BOT)

Appointment may be defined as the selection, by the authority vestedwith power, of an individual who is to exercise the functions of a givenoffice... xxx Designation connotes merely the imposition by law ofadditional duties on an incumbent official, as where, in the casebefore us, the Secretary of Tourism is designated Chairman of theBoard of Directors of the Phil. Tourism Authority... xxx It is said thatappointment is essentially executive while designation is legislative innature... xxx Where the person is merely designated and notappointed, the implication is that he shall hold the office only in a

temporary capacity and may be replaced at will by the appointingauthority. In this sense, the designation is considered only an actingor temporary appointment which does not confer security of tenure onthe person named.(Binamira vs. Garrucho)

designation does not entitle the person security of tenure as heoccupies the position only in an acting capacity

designation does not entail payment of additional benefits or grantupon the person so designated the right to claim the salary attached

to the positon only appointments or promotions, not designations can be a subject

of a protest before the Civil Service Commission

the power of appointment is by nature executive and is vested by theConsitution in the President of the Philippines, to be exercised by himover the officers enumerated therein

the power of appointment being discretionary in nature mayessentially not be delegated (explanation found in Binamira case)

Power of appointment is not exclusively presidential. It may beexercised by the Supreme Court and the Constitutional Commissionsover their respective administrative personnel even as similarauthority is available to Congress over its personnel under thegeneral doctrine of separation of powers.

When exercised by the President, the appointing power requires, incertain instances, concurrence by the legislature in view of therestoration of the Comission on Appointments

Article VII, Section 16 (Constitution) provides:

The President shall nominate and with the consent of theCommission on Appointments, appoint the heads of the executivedepartments, ambassadors, other public ministers and consuls, orofficers of the armed forces from the rank of colonel or navalcaptain, and other officers whose appointments are vested in him

in this Constitution. He shall also appoint all other officers of theGovernment whose appointments are not otherwise provided forby law, and those whom he may be authorized by law to appoint.The Congress may, by law, vest the appointment of other officerslower in rank in the President alone, in the courts, or in the headsof departments agencies, commissions or boards.

The President shall have the power to make apointments duringthe recess of Congress, whether voluntary or compulsory, butsuch appointments shall be effective only until disapproval by theCommission on Appointments or until the next adjournment of

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Congress.

The Supreme Court (in Sarmiento v. Mison) interpreted the foregoingprovision:

Confirmation is required only for the officers mentioned in thefirst sentence of Sec. 16: 1) the heads of the executive depts 2)ambassadors, other public ministers, consuls 3) officers of thearmed forces from the rank of colonel or naval capain and 4)other officers whose appointments are vested in the President bythe Constitution. No confirmation is required under the the secondsentence for 1) all other officers whose appointments are notothewise provided for by law 2) those whom the President may beauthorized by law to appoint Neither is confirmation required forthe third sentence for those officers lower in rank whoseappointment is vested by law in the President alone.

Other limitations:

The spouse and relatives by consanguinity or affinity within thefourth civil degree of the President shall not during his tenure beappointed as Members of the Constitutional Commissions, or to

the Office of the Ombudsman, or as Secretaries,Undersecretaries, chairmen or heads of bureaus or offices,including government-owned or controlled corporations and theirsubsidiaries. (Article VII, Section 13)

The President may not make appointments within two monthsimmediately before the next presidential elections and up to theend of this term, the exception being temporary appointments toexecutive positions when continued vacancies therein willprejudice public service or endanger public safety. (Art. VII,Section 15)

Appointments of an Acting President shall remain effective,

unless revoked by the elected President within ninety days fromhis assumption or reassumption of office. (Article VII, Section 14)

His appointees must possess the required qualifications, failingwhich, they can be ousted in appropriate judicial proceedings.

Luego vs. Civil Service Commission:Appointment is an essentially discretionary character andmust be performed by the officer in which it is vestedaccording to his best lights, the only condition being that theappointee should possess the qualifications required by law.

...the Civil Service Commission is not empowered to

determine the kind or nature of the appointment extended bythe appointing officer, its authority being limited to approvingor reviewing the appointment in the light of the requirementsof the Civil Service Law.

Where the CSC disapproves an appointment based on its non-conformity to applicable provisions of law and on the qualifications ofthe appointee, the appointee need not be previously heard since theaction does not involve the imposition of an administrative disciplinarymeasure. (Debulgado vs. CSC)

Acceptance by the appointee is needed to make the appointmentcomplete. (Lacson vs. Romero)

The only recognized instance when an individual can be compelled toaccept an appointive office is in connection with the defense of thestate.

Election

mode of filling a public office, by which the enfranchised citizenry isable to participate directly in the conduct of the government, throughthe selection by them of the functionaries who will represent themtherein.

Vacancies

exist when there is no person lawfully authorized to assume andexercise at present the duties of the office.

...No person, no matter how qualified and eligible he is for a certainposition, may be appointed to an office which is not vacant. Theincumbent must first be legally removed or his appointment validlyterminated. (Costin vs. Quimbo)

a vacancy may be original, constructive, accidental or absolute

1. Original when an office is created and no one has as yet been

chosen to fill it2. Constructive when the incumbent has no legal right to the office

- such as de facto officer and may be legally replaced byanother

3. Accidental when the incumbent is separated by any mode otherthan expiration of the term like resignation, death, removal orabandonment

4. Absolute when the term of the incumbent having expired, no

successor has legally qualified to replace him

Qualification as an Endowment

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understood in two senses: as an endowment and as an act

refers to the qualities or endowments required of the public officer toinsure the proper discharge of the duties of his office

usual qualifications: age, citizenship, suffrage, literacy, residence,academic and moral qualifications

property qualifications may not be imposed for the exercise of theright to run for public office (see Maquira vs. Borra)

Disqualification

lack of disqualifications is itself a qualification Monsanto vs. Factoran:

The pardon granted to petitioner has resulted in removing herdisqualification from holding public employment but it cannot gobeyond that. To regain her former post as assistant city treasurer, shemust re-apply and undergo the usual procedure required for a newappointment.

Garcia vs. Chariman, Commission on Audit:If the pardon is based on the innocence of the individual or ifexecutive clemency is granted to cover the administrative charges forthe same acts for which he was prosecuted in criminal proceedings,hen o longer needs to apply for reinstatement to his former position.He is restored to his office ipso facto upon the issuance of theclemency.

Civil Liberties Union vs. The Executive Secretary:- declared as unconstitutional EO 284 which in effect allowed Cabinetmembers, their underscretaries and asst. secretaries and otherappointive officials of the Executive Department to hold otherpositions in the government albeit subject to the limitations imposedtherein

The Constitution provides that the Members of the Supreme Courtand of other courts established by law shall not be designated to anyagency performing quasi-judicial or administrative functions. (Article

VIII, Section 12)

Who may Prescribe Qualifications

may be prescribed by the Constitution or by statute

qualifications for public office wheher prescribed by the Constitutionor by the statute, may not be changed by private agreement

where the Constitution itself creates or provides for the creation of theoffice but prescribes no qualifications, the legislature may repair theomission and supply the qualifications itself (example: NEDA)

Scope of Qualifications

when laid down by the Constitution, the qualifications are usuallyenumerated in an exclusive manner

under the maxim expressio unius est exclusio alterius, it is notcompetent for the legislature to add to these qualifications

but if only minimum qualifications are required by the Constitution, orif no qualifications are prescribed therein, the legislature is not inhiitedfrom prescribing additional qualifications

when the legislature does prescribe qualifications, it must do so in

such a detailed manner as to strip the appointing power of thediscretion it is entitled ito exercise in the choice of the appointee

legislature can prescribe qualifcations in a general manner only so asto allow the widest possible field of choice

it is obvious that if the statute prescribes the qualifications in a minutedetail so as to practically pinpoint the appointee, the appointment willin effect be made by the legislature in derogation of the prerogative ofthe executive

the qualifications to be valid must be relevant to the position

Limitations on the power of the legislature to prescribe qualifications:1. The legislature may not reduce or increase the qualifications

prescribed in an exclusive manner by the Constitution.2. The legislature may prescribe only general qualifications.3. The qualifications must be relevant to the office for which they are

prescribed.Duration of Qualifications

The prescribed qualifications should be possessed at the earliest onthe date indicated by the Constitution or the law.

Qualifications are continuing requirements and so must be possessednot only on the date of selection or assumption but for the fullduration of the officer's incumbency

The moment any of such qualifications is lost during tenure, the right

to the office is automatically forfeited.

Qualification as an Act

an act by which the public functionary formally commences thedischarge of his official duties

effected by the taking of an oath or filing of a bond or both in the caseof certain officers

Accountable officers are required to be properly bonded inaccordance with law.

Accountable officers are those whose duties permit or require thepossession or custody of government funds or properties and who

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shall be accountable therefor and for the safekeeping thereof inaccordance with law.

Failure to qualify

Mere delay in qualifying does not result in automatic forfeiture of theoffice.

Such delay only empowers the superior authorities to prevent entryinto the office at a later time on the ground that the same has beenabandoned.

If the delay can be validly explained, as in the case of an illness orunavoidable absence of the claimant to the office, qualification maybe permitted even after the time set by law for the commencement ofthe term.

It is different where the law requires qualification within a specifiedtime and adds that failure to qualify during that period will result inautomatic loss of the right to office.

Chapter 3De Facto Officers

Definition

one whose acts, though not those of a lawful officer, the law, uponprinciples of policy and justice, will hold valid so far as they involvethe interests of the public and third persons, where the duties of theoffice were excercised

Distinctions

De jure officer- one who has lawful title to the office but has not been able to takepossession of it or has been ousted therefrom- has title

De facto officer- one who actually possesses the office although he has an imperfector only colorable title- has color of title- may ripen into an officer de jure when he repairs his omission and

takes the required oath or posts the needed bond Usurper or intruder

- has neither title nor color of title- acts are entirely void- may however grow into an officer de facto, if his assumption of officeis acquiesced in. thereby acquiring color of title to the office

Requisites of De Facto Officership

1. There must be a de jure office

2. There must be color of right or general acquiescence by the public

3. There must be actual physical possession of the office in good faith

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