Puboff and election rev.pdf

8/14/2019 Puboff and election rev.pdf

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PART I THE LAW ON PUBLIC OFFICERSCHAPTER 1: DEFINITIONS, DISTINCTIONS AND CLASSIFICATIONS

Meaning of Office: position or function by virtue of which a person has someemployment in the affairs of another.

Meaning 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 theappointing power, an individual is invested with some portion of the sovereignfunctions of the government to be exercised by him for the benefit of the public.

Purpose and Nature of Public Office:grounded on being a public trust createdin the interest and benefit of the people.

A. Public Office as a public trust:1. Holders regarded as public servants2. Holders subject to highest standards of accountability and service.

-public interest over personal interest; not a means to promotepersonal interest

CONSTI, ART. XI, SEC. 1

Section 1. Public office is a public trust. Public officers and employees must, at alltimes, be accountable to the people, serve them with utmost responsibility,integrity, loyalty, and efficiency; act with patriotism and justice, and lead modestlives.

CONSTI ART. II, SEC. 1

Section 1. The Philippines is a democratic and republican State. Sovereigntyresides in the people and all government authority emanates from them.

B. Public Office not property:1. holder subject to removal or suspension according to law.

!Segovia vis--vis Chanco: intention to disturb right to office shouldbe clear. In Segovia, such intention was not expressed, in contrast toChanco v. Imperial, where the legislative intent abolishing the officewas manifest.

2. holder without vested right in any pubic office.!It is only when salary has already been earned or accrued that saidsalary becomes private property and entitled to the protection of dualprocess.

3. Holders right in nature of privilege entitled to protection!when the dispute concerns ones constitutional right to security oftenure, public office is deemed analogous to property in a limitedsense; hence the right to due process could rightly be invoked.!an office may be considered as property within the protection of dueprocess guarantee of the Constitution in controversies relating to thequestions as to which of two persons is entitled thereto.

4. Holders right personal to him! heirs of the protestee in an election contest may no longer

prosecute the latters counterclaim for damages against theprotestant.

o Segovia v. Noel: if the right is to be taken away by statute,the terms should be clear in which the purpose is stated.

o Chanco v. Imperial: intention of the legistature to vacatethe office was clearly expressed.

C. Public Office not a contract1. Creates no contractual relation between holder and the public2. Exists by virtue of some law3. Generally, entitles holder to compensation

!salary is a mere incident and forms no part of the office.

Public office Contract

creation Incident of sovereignty Originates from the willof the contracting parties

object Carrying out of sovereign as well asgovernmental functions

Imposes obligations onlyupon persons whoentered the same

Subjectmatter andscope

Embraces the idea of tenure,duration, and continuity and the dutiesconnected therewith

Limited in its durationand specific in itsobjects.

Public office and Public Employment Distinguished- Although every public office may be an employment, every public employment isnot an office.- the delegation to the office holder of some of the sovereign functions ofgeovnerment is the most important characteristic of public office.

Essential Elements of Public office:1. Created by the constitution or by law or by some body or agency to which thepower to create office has been delegated.2. it must be invested with an authority to exercise some portion of the sovereignpower of the state to be exercised for public interest

3. Powers and functions are defined by the consitution or by law, or througlegislative authority.4. the duties pertaining thereto are performed independently, without control ofsuperior power other than law, unless they are those of an inferior or subordinaofficer, created or authorized by the legislature and placed by it under the genecontrol of a superior officer or body; and5. it is continuing and permanent in nature and not occasional or intermittent.

Creation of Public officea. by the congress: Except for offices created by constitution, the creation primarily a legislative function.b. by the president: as far as bureaus, agencies or offices in the executivdepartment are concerned, the Presidents power of control may justify him inactivate the functions of a particular office or certain lawsmay garnt him broauthority to carry out reorganization measures.

Modification or abolition of Public Office-power is inherently legislative

Exercise of sovereign powers and functions- one of the most important criteria of public office- authority conferred by law- extent of authority not material-presumption of regularity of official acts!not applicable when an officials acts are not within the duties specified by law

Tenure and duration- existence of definite tenure not material- continuance of office holder not material- permanence of office not material

Officer and Employee distinguisheda. In the law of public officer- an officer is distinguished in the greater importancdignity and independence of his position.b. Under the revised penal code- definition eliminates the standard distinctiobetween officer and employee.

Meaning of Public Official: an officer of the Government itself, as distinguishfrom the officers and employees of instrumentalities of government.

CHAPTER 2: ELIGIBILITY AND QUALIFICATIONS

A. In General

Meaning of eligibility/ eligible/ ineligibility/ ineligibile:Eligibility:state or quality of being legally fitted or qualified to be chosen. Muexist both at the commencement and during the occupancy of an off ice.

Eligibile:legally fitted or qualified to hold an officeIneligibilty:lack of qualifications prescribed by the Constitution or applicable lafor holding public office.Ineligible:a. legally or otherwise disqualified to hold an officeb. disqualified to be elected to an officec. disqualified to hold an office, if elected or appointed to it.Note: mere certification by CSC as civil service eligible does not amount to appointment to any position nor does it insure appointment.

Meaning of qualification:Used in two senses:a. refer to the endowment or accomplishment that fits one for officeb. refer to the act which a person, before entering upon the performance o hduties, is by law, required to do.

Nature of right to hold public office:1. not a natural right: to hold public office, one must be eligible and possess tqualifications prescribed by law.

2. not a constitutional right: it is a political privilege

Power of Congress to prescribe qualificationsa. in general: Congress empowered to prescribe qualifications- there must be a rational nexus between any requirements and duties of tposition in question.- qualifications prescribed must not be too detailed as to practically amount making an appointment which is an executive function and not legislative.b. where office created by the constitution: Where the constitution establishspecific eligibility requirements for a particular constitutional office, tconstitutional criteria are exclusive. Congress have no power to require differequalifications for constitutional offices other than those qualifications specificaset out in the Constitution.c. Where qualifications prescribed by the constitution: Where constitution hprescribed certain qualifications, Congress may prescribe additional qualificatiounless it appears that this action is prohibited.


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e.g.Art. XIII ,sec. 17 (2)

The Commission shall be composed of a Chairman and four Members who mustbe natural-born citizens of the Philippines and a majority of whom shall bemembers of the Bar. The term of office and other qualifications and disabilities ofthe Members of the Commission shall be provided by law.

Art. XII, sec. 20

Section 20. The Congress shall establish an independent central monetary

authority, the members of whose governing board must be natural-born Filipinocitizens, of known probity, integrity, and patriotism, the majority of whom shallcome from the private sector. They shall also be subject to such otherqualifications and disabilities as may be prescribed by law. The authority shallprovide policy direction in the areas of money, banking, and credit. It shall havesupervision over the operations of banks and exercise such regulatory powers asmay be provided by law over the operations of finance companies and otherinstitutions performing similar functions.Until the Congress otherwise provides, the Central Bank of the Philippinesoperating under existing laws, shall function as the central monetary authority.

Power of Congress to Prescribe DisqualificationsContress may not add disqualifications where the constitution has provided them.Moreover, when the CONsitution has attached a disqualification to the holding ofany Office, congress cannot remove it under the power to prescribe qualificationsas to such offices as it may create.

o Vargas v. Rilloraza: The method of appointment of SC Justiceprovided by the COnsitution is mandatory and binding upon alldepartments of the Government. Hence, thos not falling under the

definition and those not duly appointed may not act as a SC justice,even if only temporary.

Constructions of restrictions on eligibilityPresumption in favor of eligibility- the right to public office should be stricktlyconstrued against ineligibility. The right of a citizen to hold office is the generalrule, ineligibility the exception, and therefore, a citizen may not be deprived of thisright without proof of some disqualification specifically declared by law.

Time of possession of qualification1. Where time specified by Constitution or Law: the candidate must possess thequalifications at that time.2. Where Constitution or law is silent: the terms employed in declaring thequalifications are to be taken into consideration3 views:

a. if qualified at the time of commencement of the term or inductioninto office, disqualification of the candidate or appointee at the time of election orappointment is immaterial

b. must exist at the time of the elction or appointment, and that hteir

existence only at the time of the commencement of the term of office or inductionof the candidate or appointee into office and assumption by him of his dutiesis notsufficient to qualify him for the office.

c. where the provision refers to holding of office, rather than toeligibility, in defining the qualifications, the courts are inclied tohold htat thequalifications are to be determined at the time of the commencement of the termor the induction into office, rather than at the time of the elction or appointment.3. When qualification must always exist: Eligibility to public office is of a continuingnature and must exist at the commencement of the term and during theoccupancy of the office.! Under the LGC, sec. 39: qualifications of elective officials does not specifyparticular date or time when the candidate must possess citizenship, unlike thatfor:a. residence- which must consist of atelast one years residence immediatelypreceding the day of electionb. age- atleast 23 years of age on election day.

o Frivaldo v. COMELEC: construed citizenship qualification as applyingto the time of proclamation of the elected official and at the start of histerm.

Removal of disqualifications during termCourts have not agreed as to the effect of removal by an office holder of hisdisqualifications after the commencement of the term of office and during itscontinuance.

B. Particular Qualifications and Disqualifications

Qualifications usually required of public officers- once any of the required qualifications islost, his title may be reasonablychallenged.1. Citizenship!GR: aliens are not eligible to public office, unless the privilege is extended tothem by statute.! Public school teacher who by voluntary change of citizenship ceases to beFilipino becomes disqualified from holding any position in the teaching service.

2. Age3. Right of Suffrage4. Residence! residence and domicile are held to be synonymous. Both importnot only intention to reside in a fixed place, but also personal presence in that placcoupled with conduct indicative of such intention.5. Education!statutes prescribe educational qualifications when they reasonably relate to tspecialized demands of an office.6. Ability to read and write!there is no constitutional prohibition against it.7. Political affiliation!Laws sometimes require as a condition of eligibility to certain offices nominatiby membership in a political party or group.e.g. CONSTI, ART. VI, SEC. 17, 18

Section 17. The Senate and the House of Representatives shall each have aElectoral Tribunal, which shall be the sole judge of all contests relating to telection, returns, and qualifications of their respective Members. Each ElectoTribunal shall be composed of nine Members, three of whom shall be Justices the Supreme Court to be designated by the Chief Justice, and the remaining sshall be Members of the Senate or the House of Representatives, as the camay be, who shall be chosen on the basis of proportional representation from thpolitical parties and the parties or organizations registered under the party-lsystem represented therein. The senior Justice in the Electoral Tribunal shall its Chairman.

Section 18. There shall be a Commission on Appointments consisting of thPresident of the Senate, as ex officio Chairman, twelve Senators, and twel

Members of the House of Representatives, elected by each House on the basisproportional representation from the political parties and parties or organizatioregistered under the party-list system represented therein. The chairman of tCommission shall not vote, except in case of a tie. The Commission shall act oall appointments submitted to it within thirty session days of the Congress frotheir submission. The Commission shall rule by a majority vote of all tMembers.

Religious qualifications prohibited- religious beliefs or opinions cannot be made a test of political right and privilegeCONSTI, ARTICLE III, SEC. 5

Section 5. No law shall be made respecting an establishment of religion, prohibiting the free exercise thereof. The free exercise and enjoyment of religioprofession and worship, without discrimination or preference, shall forever allowed. No religious test shall be required for the exercise of civil or politicrights.

o Pamil v. Teleron: a priest cannot be elected as municial mayor.Note: the prohibition in the revised administrative code of 1917 is not provided

the Admin Code of 1987

Powers of Congress to Impose property qualifications1. View that law constitutional- unless inhibited by the Constitution, a legislatuhas the power to impose property qualifications upon office holders. requirement that certain public officers be resident property owners does ntransgress the constitutional guarantees of due process and equal protection.2. View that Law unconstitutional- no rational conncetion between qualificatiofor administering public affairs and ownership of real property.

o Manquerra v. Borra: declared as unconstitutional a law requiricandidates to post a suretybond equivalent to the one year salary the position. Social justice presupposes equal opportunity for all, riand poor alike.

Qualifications prescribed by the Constitution for Certain Officers1. PresidentCONSTI, ART. VII, SEC. 2

Section 2. No person may be elected President unless he is a natural-born citizeof the Philippines, a registered voter, able to read and write, at least forty yearsage on the day of the election, and a resident of the Philippines for at least teyears immediately preceding such election.

2. Vice PresidentCONSTI, ART. VII, SEC. 3

Section 3. There shall be a Vice-President who shall have the same qualificatioand term of office and be elected with, and in the same manner, as the PresideHe may be removed from office in the same manner as the President.The Vice-President may be appointed as a Member of the Cabinet. Suappointment requires no confirmation.

3. SenatorsCONSTI, ART. VI SEC. 3

Section 3.No person shall be a Senator unless he is a natural-born citizen of tPhilippines and, on the day of the election, is at least thirty-five years of age, ab


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to read and write, a registered voter, and a resident of the Philippines for not lessthan two years immediately preceding the day of the election.

4. Members of the House of RepresentativesCONSTI, ART. VI, SEC. 6

Section 6. No person shall be a Member of the House of Representatives unlesshe is a natural-born citizen of the Philippines and, on the day of the election, is atleast twenty-five years of age, able to read and write, and, except the party-listrepresentatives, a registered voter in the district in which he shall be elected, and

a resident thereof for a period of not less than one year immediately preceding theday of the election.

5. Members of Supreme Court and lower collegiate courtCONSTI, ART. VIII, SEC. 7(1)

Section 7. (1)No person shall be appointed Member of the Supreme Court or anylower collegiate court unless he is a natural-born citizen of the Philippines. AMember of the Supreme Court must be at least forty years of age, and must havebeen for fifteen years or more, a judge of a lower court or engaged in the practiceof law in the Philippines.

6. Chairman and Commissioners of Civil ServiceCONSTI, ART. IX-B, SEC. 1(1)

Section 1. (1) The civil service shall be administered by the Civil ServiceCommission composed of a Chairman and two Commissioners who shall benatural-born citizens of the Philippines and, at the time of their appointment, atleast thirty-five years of age, with proven capacity for public administration, andmust not have been candidates for any elective position in the elections

immediately preceding their appointment.

7, Chairman and Commissioners of COMELECCONSTI, ART. IX-C, SEC. 1(1)

Section 1. (1) There shall be a Commission on Elections composed of aChairman and six Commissioners who shall be natural-born citizens of thePhilippines and, at the time of their appointment, at least thirty-five years of age,holders of a college degree, and must not have been candidates for any electivepositions in the immediately preceding elections. However, a majority thereof,including the Chairman, shall be members of the Philippine Bar who have beenengaged in the practice of law for at least ten years.

8. chairman and Commissioners of COACONSTI, ART. IX-D, SEC. 1(1)

Section 1. (1)There shall be a Commission on Audit composed of a Chairmanand 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, Certified PublicAccountants with not less than ten years of auditing experience, or members ofthe Philippine Bar who have been engaged in the practice of law for at least ten

years, and must not have been candidates for any elective position in theelections immediately preceding their appointment. At no time shall all Membersof the Commission belong to the same profession.

9. Ombudsman and DeputiesCONSTI, ART. XI, SEC. 8

Section 8.The Ombudsman and his Deputies shall be natural-born citizens of thePhilippines, and at the time of their appointment, at least forty years old, ofrecognized probity and independence, and members of the Philippine Bar, andmust not have been candidates for any elective office in the immediatelypreceding election. The Ombudsman must have, for ten years or more, been ajudge or engaged in the practice of law in the Philippines.During their tenure, they shall be subject to the same disqualifications andprohibitions as provided for in Section 2 of Article 1X-A of this Constitution.

Qualifications prescribed by law for certain officers1. Secretaries of Departments

a. citizens of the Philippines

b. not less than 25 years of age

2. Presiding Justices and Associate Justice of CA- same qualifications as those provided for Justices of SC

3. Judges of RTCa. natural born citizen of the Philippinesb. atleast 35 years of agec. for atleast 10 years, has been engaged in the practice of law in the

Philippines requiring admission to the practice of law as anindispensable requisite.

4. Judges of MTCa. natural born citizen of the Philippinesb. atleast 30 years of age and

c. atleast 5 years, has been engaged in the practice of law in tPhilippines or has held a public office in the philipines requiriadmission to the practice of law as an indispensable requisite.

5. Elective local officialsLocal Government Code, sec. 39

Section 39. Qualifications. -(a) An elective local official must be a citizen of the Philippines; a registered votin the barangay, municipality, city, or province or, in the case of a member of t

sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, tdistrict where he intends to be elected; a resident therein for at least one (1) yeimmediately preceding the day of the election; and able to read and write Filipior any other local language or dialect.

(b) Candidates for the position of governor, vice-governor, or member of tsangguniang panlalawigan, or mayor, vice-mayor or member of the sangguniapanlungsod of highly urbanized cities must be at least twenty-one (21) years age on election day.

(c) Candidates for the position of mayor or vice-mayor of independent componecities, component cities, or municipalities must be at least twenty-one (21) yeaof age on election day.

(d) Candidates for the position of member of the sangguniang panlungsod sangguniang bayan must be at least eighteen (18) years of age on election day.

(e) Candidates for the position of punong barangay or member of tsangguniang barangay must be at least eighteen (18) years of age on electi

day.

(f) Candidates for the sangguniang kabataan must be at least fifteen (15) yearsage but not more than twenty-one (21) years of age on election day.

6. Members of Board of Election Inspectorsa. good moral character and irreproachable reputationb. registered voter of the city or municipalityc. has never been convicted of any election offense or of any other crim

pubishable by more than 6 months of imprisonment, or if there is pending information agasint him for any election offense.

d. Must be able to speak and write English or the local dialect.

Disqualifications to hold public office1. mental or physical incapacity

2. misconduct or crime.- violation of a municipal ordinance to qualify as a crime must involve atelastcertain degree of evil doing, immoral conduct, corruption, malice or want

principles reasonably related to the requirements of public office.

3. impeachmentART. XI, SEC. 2

Section 2. The President, the Vice-President, the Members of the Supreme Couthe Members of the Constitutional Commissions, and the Ombudsman may removed from office on impeachment for, and conviction of, culpable violation the Constitution, treason, bribery, graft and corruption, other high crimes, betrayal of public trust. All other public officers and employees may be removefrom office as provided by law, but not by impeachment.

ART. XI, SEC. 3(7)

(7) Judgment in cases of impeachment shall not extend further than removal frooffice and disqualification to hold any office under the Republic of the Philippinebut the party convicted shall nevertheless be liable and subject to prosecutiotrial, and punishment, according to law.

4. Removal or suspension from office

- Undoubtedly, a law can attach ineligibility to suspesion or removal from officbut where there is no constitutional or statutory declaration of ineligibility for sucause, the courts may not impose the disability.

5. Previous tenure or office

CONSTI ART. VII, SEC. 4

Section 4. The President and the Vice-President shall be elected by direct votethe people for a term of six years which shall begin at noon on the thirtieth day June next following the day of the election and shall end at noon of the same dasix years thereafter. The President shall not be eligible for any re-election. Nperson who has succeeded as President and has served as such for more thafour years shall be qualified for election to the same office at any time.

No Vice-President shall serve for more than two successive terms. Voluntarenunciation of the office for any length of time shall not be considered as


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interruption in the continuity of the service for the full term for which he waselected.

CONSTI ART. IX-B, SEC. 1 (2); ART. IX-C, SEC. 1(2), ART. IX-B, SEC. 1(2)

2) The Chairman and the Commissioners shall be appointed by the President withthe consent of the Commission on Appointments for a term of seven years withoutreappointment. Of those first appointed, the Chairman shall hold office for sevenyears, 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 ordesignated in a temporary or acting capacity.

(2) The Chairman and the Commissioners shall be appointed by the Presidentwith the consent of the Commission on Appointments for a term of seven yearswithout reappointment. Of those first appointed, three Members shall hold officefor seven years, two Members for five years, and the last Members for threeyears, without reappointment. Appointment to any vacancy shall be only for theunexpired term of the predecessor. In no case shall any Member be appointed ordesignated in a temporary or acting capacity.

(2) The Chairman and the Commissioners shall be appointed by the Presidentwith the consent of the Commission on Appointments for a term of seven yearswithout reappointment. Of those first appointed, the Chairman shall hold office forseven years, one Commissioner for five years, and the other Commissioner forthree years, without reappointment. Appointment to any vacancy shall be only forthe unexpired portion of the term of the predecessor. In no case shall any Member

be appointed or designated in a temporary or acting capacity.


Section 11. The Ombudsman and his Deputies shall serve for a term of sevenyears without reappointment. They shall not be qualified to run for any office in theelection immediately succeeding their cessation from office.

6. Consecutive TernsCONSTI ART. VII, SEC. 4

Section 4. The President and the Vice-President shall be elected by direct vote ofthe people for a term of six years which shall begin at noon on the thirtieth day ofJune 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 re-election. Noperson who has succeeded as President and has served as such for more thanfour years shall be qualified for election to the same office at any time.

No Vice-President shall serve for more than two successive terms. Voluntaryrenunciation of the office for any length of time shall not be considered as aninterruption in the continuity of the service for the full term for which he waselected.

CONSTI ART. VI, SEC. 4

Section 4. The term of office of the Senators shall be six years and shallcommence, unless otherwise provided by law, at noon on the thirtieth day of Junenext following their election. No Senator shall serve for more than two consecutiveterms. Voluntary renunciation of the office for any length of time shall not beconsidered as an interruption in the continuity of his service for the full term ofwhich he was elected.

CONSTI, ART. VI, SEC. 7

Section 7. The Members of the House of Representatives shall be elected for aterm of three years which shall begin, unless otherwise provided by law, at noonon the thirtieth day of June next following their election. No Member of the Houseof Representatives shall serve for more than three consecutive terms. Voluntaryrenunciation of the office for any length of time shall not be considered as aninterruption in the continuity of his service for the full term for which he waselected.

CONSTI, ART. X, SEC. 8

Section 8. The term of office of elective local officials, except barangay officials,which shall be determined by law, shall be three years and no such official shallserve for more than three consecutive terms. Voluntary renunciation of the officefor any length of time shall not be considered as an interruption in the continuity ofhis service for the full term for which he was elected.


Section 11. The Ombudsman and his Deputies shall serve for a term of sevenyears without reappointment. They shall not be qualified to run for any office in theelection immediately succeeding their cessation from office.

7. Holding more than one office- no constitutionally protected right to hold incompatible offices.

CONSTI, ART. VII, SEC. 13

Section 13. The President, Vice-President, the Members of the Cabinet, and thedeputies or assistants shall not, unless otherwise provided in this Constitutiohold any other office or employment during their tenure. They shall not, durisaid tenure, directly or indirectly, practice any other profession, participate in abusiness, or be financially interested in any contract with, or in any franchise, special privilege granted by the Government or any subdivision, agency, instrumentality thereof, including government-owned or controlled corporations their subsidiaries. They shall strictly avoid conflict of interest in the conduct of th

office.

The spouse and relatives by consanguinity or affinity within the fourth civil degrof the President shall not, during his tenure, be appointed as Members of tConstitutional Commissions, or the Office of the Ombudsman, or as SecretarieUndersecretaries, chairmen or heads of bureaus or offices, including governmeowned or controlled corporations and their subsidiaries.


Section 13. No Senator or Member of the House of Representatives may hold aother office or employment in the Government, or any subdivision, agency, instrumentality thereof, including government-owned or controlled corporations their subsidiaries, during his term without forfeiting his seat. Neither shall he appointed to any office which may have been created or the emoluments thereincreased during the term for which he was elected.

CONSTI, ART. VIII, SEC. 12

Section 12. The Members of the Supreme Court and of other courts establisheby law shall not be designated to any agency performing quasi-judicial administrative functions.

CONSTI, ART. IX-A, SEC. 2

Section 2. No member of a Constitutional Commission shall, during his tenurhold any other office or employment. Neither shall he engage in the practice any profession or in the active management or control of any business which,any way, may be affected by the functions of his office, nor shall he be financiainterested, directly or indirectly, in any contract with, or in any franchise privilege granted by the Government, any of its subdivisions, agencies, instrumentalities, including government-owned or controlled corporations or thsubsidiaries.


Section 8. The Ombudsman and his Deputies shall be natural-born citizens of tPhilippines, and at the time of their appointment, at least forty years old, recognized probity and independence, and members of the Philippine Bar, amust not have been candidates for any elective office in the immediatepreceding election. The Ombudsman must have, for ten years or more, been

judge or engaged in the practice of law in the Philippines.

During their tenure, they shall be subject to the same disqualifications anprohibitions as provided for in Section 2 of Article 1X-A of this Constitution.

CONSTI, ART. IX-B, SEC. 7

Section 7. No elective official shall be eligible for appointment or designation any capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, nappointive official shall hold any other office or employment in the Government any subdivision, agency or instrumentality thereof, including Government-ownor controlled corporations or their subsidiaries.

CONSTI, ART. XVI, SEC. 5(4)

(4) No member of the armed forces in the active service shall, at any time, bappointed or designated in any capacity to a civilian position in the Governmeincluding government-owned or controlled corporations or any of th

subsidiaries.

8. Relationship with appointing powera. CONSTI, ART. VII, SEC. 13

The spouse and relatives by consanguinity or affinity within the fourth civil degrof the President shall not, during his tenure, be appointed as Members of tConstitutional Commissions, or the Office of the Ombudsman, or as SecretarieUndersecretaries, chairmen or heads of bureaus or offices, including governmeowned or controlled corporations and their subsidiaries.

b. Under the Civil Service Decree, all appointments in the national, provincial, cand municipal governments or in any branch or instrumentality tereof, includinGOCC, made in favor of a relative of the appointing or recommending authority,of the chief or bueau or office, or of persons exercising immediate supervisiover him, are prohibited.- relative: those related within the 3

rddegree either of consanguinity or of affinit


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- The restriction shall not be applicable to the case of a member of any familywho, after his or her appointment to any position in an office or bureau, contractsmarriage with someone in the same office or bureau, in which event theemployment or retention therein of both husband and wife may be allowed.Exempted from the operation of rules on nepotism:1. persons employed in a confidential capacity2. teachers3. physicians4. members of AFP

9. Office newly created or the emoluments which have been increased.


Section 13. No Senator or Member of the House of Representatives may hold anyother office or employment in the Government, or any subdivision, agency, orinstrumentality thereof, including government-owned or controlled corporations ortheir subsidiaries, during his term without forfeiting his seat. Neither shall he beappointed to any office which may have been created or the emoluments thereofincreased during the term for which he was elected.

- if the increase is not effected by enactment of Congress, prohibition does notapply.-emolument: does not refer to the fixed salary alone that is attached to the office,but includes such fees and compensations as the incumbent of the office is by lawentitled to receive.

10. Being an Elective OfficialCONSTI, ART. IX-B, SEC. 7

Section 7. No elective official shall be eligible for appointment or designation in

any capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, noappointive official shall hold any other office or employment in the Government orany subdivision, agency or instrumentality thereof, including Government-ownedor controlled corporations or their subsidiaries.

11. Having been a candidate for any elective positionCONSTI, ART. IX-B, SEC. 6

Section 6. No candidate who has lost in any election shall, within one year aftersuch election, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries.

CONSTI, ART. IX-B, SEC. 1(1), ART. IX-C, SEC.1 (1), ART. IX-D, SEC. 1(1)

Section 1. (1) The civil service shall be administered by the Civil ServiceCommission composed of a Chairman and two Commissioners who shall benatural-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, andmust not have been candidates for any elective position in the electionsimmediately preceding their appointment.

Section 1. (1) There shall be a Commission on Elections composed of a Chairmanand six Commissioners who shall be natural-born citizens of the Philippines and,at the time of their appointment, at least thirty-five years of age, holders of acollege degree, and must not have been candidates for any elective positions inthe immediately preceding elections. However, a majority thereof, including theChairman, shall be members of the Philippine Bar who have been engaged in thepractice of law for at least ten years.

Section 1. (1) There shall be a Commission on Audit composed of a Chairmanand 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, Certified PublicAccountants with not less than ten years of auditing experience, or members ofthe Philippine Bar who have been engaged in the practice of law for at least tenyears, and must not have been candidates for any elective position in the

elections immediately preceding their appointment. At no time shall all Membersof the Commission belong to the same profession.

12. Under the LGCRA 7164, sec. 94

Sec. 94 Apointment of Elective and Appointive Local Officials; Candidates WhoLost in an Election. - (a) No elective or appointive local official shall be eligible forappointment or designation in any capacity to any public office or position duringhis tenure.Unless otherwise allowed by law or by the primary functions of his position, noelective or appointive local official shall hold any other office or employment in thegovernment or any subdivision, agency or instrumentality thereof, includinggovernment-owned or controlled corporations or their subsidiaries

fugitive from justice: includes not only those who flee after conviction to avopubsihment but likewise those who, after being charged, flee to avoid prosecut(Rodriguez v. COMELEC)

CHAPTER 3: ACQUISITION OF RIGHT OR TITLE TO OFFICE

A. In General

Modes of Commencing official relations- by election or appointment

Meaning of Appointment:act of designation by the executive officer, board, body to whom that power has been delegated, of the individual who is to exercithe powers and functions of a given office.

Where appointing power resides1. inherently belongs to the people.2. entrusted to designated elected and appointed public officials.-appointment is generally looked upon as properly belonging to the executidepartments.- appointments may also be made by Congress or the Courts, but when so madshould be taken as an incident to the discharge of functions within their respectispheres.

Appointing power generally regarded as an executive function1. Where power exercised by executive department2. Where power exercised by other departments- such appointments by tseveral departments of government are necessary to enable them to maintatheir independent existence, and do not involve an encroachment upon tfunction of any other branch.

Power to appoint discretionary- the moment the discretionary power is exercised and he appointee assumed thduties and functions of his position, such appointment cannot anymore be revokby the appointing authority except for cause.1. power of courts to review appointment- cannot be controlled by the courts as long as it is properly and not arbitrarexercised by the appointing authority.- cannot be the subject of an application for writ of mandamus to compel texercise of such discretion.2. power of CSC to revoke appointment- the commission has no authority to revoke an appointment. It has also authority to direct the appointment of a substitute for its choice or a successprotestant.- The Commission is empowered to take appropriate action on all appointmenand other personal actions (e.g. promotion) and its power includes the authorityrecall or revoke an appointment initially approved in disregard of applicabprovisions of law and regulations.

o Concepcion v. Paredes: law provides for drawing of lots by distrjudges as a means of determining the districts to which they may assigned- Unconstitutional

o Reyes v. Abelada: Secretary of Education appointed respondeinstead of Petitioner who was recommended by the Director of PubShools- power of appointment essentially discretionary, absent showing that there was abuse of discretion, the court will not attemto substitute its own discretion fro that exercised by the appointipoert, no rigid formula for exercise of power.

o Cuyengkeng v. Cruz (obiter dictum): onw shoe claim is predicatsolely upon more or less remote possibility that, in the even an offishould be declared vacant, he may be the recipient of the appointmehas no cause of action against the office holder.

Power may be absolute or conditional1. Where the power is absolution: the choice of the appointing authority if it faupon an eligible person is conclusive.2. The power is conditional, where assent or approval by some other officer

body is necessary to complete the appointment.e.g. CONSTI, ART. VII, SEC. 16

Section 16. The President shall nominate and, with the consent of thCommission on Appointments, appoint the heads of the executive departmenambassadors, other public ministers and consuls, or officers of the armed forcfrom the rank of colonel or naval captain, and other officers whose appointmenare vested in him in this Constitution. He shall also appoint all other officers of thGovernment whose appointments are not otherwise provided for by law, athose whom he may be authorized by law to appoint. The Congress may, by lawvest the appointment of other officers lower in rank in the President alone, in tcourts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess the Congress, whether voluntary or compulsory, but such appointments shall


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effective only until disapproved by the Commission on Appointments or until thenext adjournment of the Congress.

! the commission can issue or appointment be complete only when such assentor confirmation is obtained.- In either case, the appointment becomes complete when the last act required ofthe appointing power is performed.

Restrictions on the power to appoint.

1. Generally:a. It is contrary to public policy to permit an officer having an appointing power touse such power to confer an office on himself.b. Cannot forestall the rights of a successor by making a prospective appointmentto fill an office where the appointees term is not to begin until the appointingpowers own term has expired.2. Under the Constitution: Appointments by the President are subject to thefollowing consitutional provisions:

a. Consti. Art. Vii, sec. 13

Section 13. The President, Vice-President, the Members of the Cabinet, and theirdeputies or assistants shall not, unless otherwise provided in this Constitution,hold any other office or employment during their tenure. They shall not, duringsaid tenure, directly or indirectly, practice any other profession, participate in anybusiness, or be financially interested in any contract with, or in any franchise, orspecial privilege granted by the Government or any subdivision, agency, orinstrumentality thereof, including government-owned or controlled corporations ortheir subsidiaries. They shall strictly avoid conflict of interest in the conduct of theiroffice.

The spouse and relatives by consanguinity or affinity within the fourth civil degreeof the President shall not, during his tenure, be appointed as Members of theConstitutional 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.

b. Consti, art. Vii, sec. 15

Section 15. Two months immediately before the next presidential elections and upto the end of his term, a President or Acting President shall not makeappointments, except temporary appointments to executive positions whencontinued vacancies therein will prejudice public service or endanger publicsafety.

c. Consti, art. Vii, sec. 16

Section 16. The President shall nominate and, with the consent of theCommission on Appointments, appoint the heads of the executive departments,ambassadors, other public ministers and consuls, or officers of the armed forcesfrom the rank of colonel or naval captain, and other officers whose appointmentsare vested in him in this Constitution. He shall also appoint all other officers of theGovernment 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 thecourts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess ofthe Congress, whether voluntary or compulsory, but such appointments shall beeffective only until disapproved by the Commission on Appointments or until thenext adjournment of the Congress.

d. consti, art. Viii, sec. 5(6)

Section 5. The Supreme Court shall have the following powers:(6) Appoint all officials and employees of the Judiciary in accordance with the CivilService Law.

e. consti. Art. Viii, sec. 9

Section 9. The Members of the Supreme Court and judges of the lower courtsshall be appointed by the President from a list of at least three nominees preparedby the Judicial and Bar Council for every vacancy. Such appointments need noconfirmation.

For the lower courts, the President shall issue the appointments within ninety daysfrom the submission of the list.

f. consti, art. Ix-a, sec. 4

Section 4. The Constitutional Commissions shall appoint their officials andemployees in accordance with law.

g. consti, art. Ix-b, sec. 1(2); art. Ix-c, sec. 1(2); art. Ix-d, sec. 1 (2)

(2) The Chairman and the Commissioners shall be appointed by the Presidentwith the consent of the Commission on Appointments for a term of seven yearswithout reappointment. Of those first appointed, the Chairman shall hold office forseven years, a Commissioner for five years, and another Commissioner for threeyears, without reappointment. Appointment to any vacancy shall be only for the

unexpired term of the predecessor. In no case shall any Member be appointed designated in a temporary or acting capacity.

(2) The Chairman and the Commissioners shall be appointed by the Presidewith the consent of the Commission on Appointments for a term of seven yeawithout reappointment. Of those first appointed, three Members shall hold offifor seven years, two Members for five years, and the last Members for thryears, without reappointment. Appointment to any vacancy shall be only for tunexpired term of the predecessor. In no case shall any Member be appointed designated in a temporary or acting capacity.

(2) The Chairman and the Commissioners shall be appointed by the Presidewith the consent of the Commission on Appointments for a term of seven yeawithout reappointment. Of those first appointed, the Chairman shall hold office fseven years, one Commissioner for five years, and the other Commissioner fthree years, without reappointment. Appointment to any vacancy shall be only fthe unexpired portion of the term of the predecessor. In no case shall any Membbe appointed or designated in a temporary or acting capacity.

h. consti., art. Ix-b, sec. 6

Section 6. No candidate who has lost in any election shall, within one year aftsuch election, be appointed to any office in the Government or any Governmeowned or controlled corporations or in any of their subsidiaries.

i. consti, mart. Ix-b, sec. 7

Section 7. No elective official shall be eligible for appointment or designation any capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, nappointive official shall hold any other office or employment in the Government any subdivision, agency or instrumentality thereof, including Government-ownor controlled corporations or their subsidiaries.

j. consti art. Xi, sec. 6

Section 6. The officials and employees of the Office of the Ombudsman, oththan the Deputies, shall be appointed by the Ombudsman, according to the CiService Law.

k. consti., art. Xi, sec. 9

Section 9. The Ombudsman and his Deputies shall be appointed by the Presidefrom a list of at least six nominees prepared by the Judicial and Bar Council, afrom a list of three nominees for every vacancy thereafter. Such appointmenshall require no confirmation. All vacancies shall be filled within three months aftthey occur.

3. Under existing laws- Unless constitutionally prohibited, Congress may aqualifications and disqualifications to those provided in the Constitution but it is n

within its power to supersede or alter them.

When appointment deemed complete1. not subject to confirmation- where the power of appointment is absolute.2. subject to confirmation- commission can issue only when such assent confirmation is obtained.3. approval by the CSC- Appointment to the positions in the CSC must bsubmitted to the CSC for approvala. Where the appointee is a qualified service eligbilie, the CSC has no choice bto attest to the appointment. Attestation is merely a check to assure complianwith Civil service law.-however, the appointment is subject to the condition that if the commissioner Civil service would later on reject the appointment by reason of lack of eligibilithen the appointment shall lapse despite attestation.b. it has been held however, that the acts of appointing power and the approvalthe commission acting together consecutivey, are necessary to make aappointment complete.- the Confirmation or attestation of the appointment by the CSC doesnt complethe appointment since such attestation although an essential aprt of t

appointing process, serves merely to assure the eligibility of the appointee.

Acceptance of Appointment1. not necessary to a completion or validity of appointment- unless there is express provisoin of the law to the contrary.2. necessary to possession of office. necessary to enable the appointee to havfull possession, enjoyment and responsibility of an office.- An appointee cannot impose his own conditions for the acceptance of a puboffice. He may only either accept or decline it.

Form of acceptance1. Express- best evidence: taking the oath2. Implied- when the appointee enters upon the exercise of the duties afunctions of an office.

Obligation of Elected or Appointed Individual to accept office


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1. Generally not subject to compulsion.- RPC imposes a penalty upon any person who having been elected by popularelection to a public office, shall refuse without legal motice to be sworn in ordischarge the duties of said office.2. obligation in the nature of social duty

Necessaity of written Appointment1. View that appointment should be evidnced by a writing2. contrary view

o Venencia v. peralta: it was incumebent upon petitioner to clearly provewhat kind of appointment was made. Indeed, the better rule requiressome kind of written memorial that could render title to public officeindubitable.

Revocation of Appointment:1. Where appointment final and complete:once made and complete is not subjectto reconsideraion or revocation.Exception: an officer is removable at will of the appointing power.2. Where appointee has assumed position- the moment the appointee assumes aposition under a completed appointment approved by the CSC, he acquires alegal, not merely equitable right, which is protected not only by statute, but also bythe consituttion, and it cannot be taken away from him, either by revocation or byremoval except for cause, and with previous notice and hearing, consistent withthe COnsitution and with the consitutitonal requirements of dure process.

B. Appointments by the President

Power of Appointment of the presidentConsti, Art. Vii, sec. 16

Section 16. The President shall nominate and, with the consent of theCommission on Appointments, appoint the heads of the executive departments,ambassadors, other public ministers and consuls, or officers of the armed forcesfrom the rank of colonel or naval captain, and other officers whose appointmentsare vested in him in this Constitution. He shall also appoint all other officers of theGovernment whose appointments are not otherwise provided for by law, andthose 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 thecourts, or in the heads of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess ofthe Congress, whether voluntary or compulsory, but such appointments shall beeffective only until disapproved by the Commission on Appointments or until thenext adjournment of the Congress.

- Under the above provision, there are 4 groups of officials whom the president isauthorized to appoint, namely:

1. First, the heads of the executive departments, ambassadors, other

public ministers and consuls, officers of the armed forces from therank of colonel or naval captain, and other officers whoseappointments are vested in him in this Constitution;

- Other officers referred to are:a. JBC Consti, art. Viii, sec. 8(2)b. Chairman and Commissioners of CSC: art. Ix-b, sec. 1(2)c. Chairman and Commissioners of COMELEC: art. Ix-c. sec.1 (2)d. Chairman and Commissioners of COA: art. Ix-c, sec. 1(2)e. embers of the regional consultative commission: Art. X, sec. 18

2. Second, all other officers of the Government whose appointments arenot otherwise provided for by law;

- refer to offices creted by congress where the latter omits to provide fo rhteappointment to said office

3. Third, those whom the President may be authorized by law to appoint;- such as heads of GOCC, undersecretaries, heads of bureaus and offices andother officials

4. Fourth, officers lower in rank 4 whose appointments the Congress mayby law vest in the President alone

Confirmatino of Appointments by Commision on Appointments- only the officers in the first group above are appointed with the consent of theCommission. Congress cannot by law require confirmation of appointments ofother officers.- no confirmation required:1. members of SC, including SB and TanodBayan and his deputiesconsti, art. Viii, sec. 9; art. Xi, sec. 42. VP appointed as member of the Cabinetconsti, art. Vii, sec. 33. Chairman and Members of the CHRart. Xiii, sec. 17- power to appoint them is with the president

Appointment by other officialsConsti, art. Vii, sec. 16

Section 16. The President shall nominate and, with the consent of thCommission on Appointments, appoint the heads of the executive departmenambassadors, other public ministers and consuls, or officers of the armed forcfrom the rank of colonel or naval captain, and other officers whose appointmenare vested in him in this Constitution. He shall also appoint all other officers of thGovernment whose appointments are not otherwise provided for by law, athose 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 tcourts, or in the heads of departments, agencies, commissions, or boards.The President shall have the power to make appointments during the recess the Congress, whether voluntary or compulsory, but such appointments shall effective only until disapproved by the Commission on Appointments or until thnext adjournment of the Congress.

- the phrase doesnt include heads of bureaus and offices not specificamentioned in the constitution as among those to be appointed by the Presidewho are subordinates of Cabinet members. By law, their appointments are vestein the President.

Kinds of presidential appointments1. regular: made while congress is in session, mere nominations subject confirmation by the Commission on Appointments2 ad interim: those made while Congress is not in session or during its recess3. permanent: those which last until they are lawfully terminated and4. temporary or acting: those which last until a permanent appointment is issued- consti, art. Vii, sec. 5(6)

Ad interim appointmentsConsti, art. Vii, sec. 16 (2

ndpar.)

The President shall have the power to make appointments during the recess the Congress, whether voluntary or compulsory, but such appointments shall effective only until disapproved by the Commission on Appointments or until thnext adjournment of the Congress.

- compulsory recess: takes place when congress adjourns-voluntary recess: takes place before adjournment of Congress, like a Christmarecess.! under the constitution, the Commissino on Appointments meets only whcongress is in session. The recess appointment power keeps in continuooperation the business of government when congress isnot in session. But thappointment shall cease to be effective upon rejection by the commission, or if nacted upon, at the adjournment of the next session, regular or special Congress.

Temporary or acting appointments- GR: power to appoint vested in the president includes the power to matemporary or acting appointments unless he is otherwise prohibited by law

e.g. member of CSC, COMELEC, COA cannot be appointed in a temporary acting capacity.- cannot be confirmed by Commission on Appointments- has no personality to bring a quo warranto action- ad interim appointment is permanent in nature and not a mere termporaappointment. However, it may be recalled or revoked by the president befoconfirmation.

Designation: mere imposition of new or additional duties upon an officer to bperformed by him in a special manner while he performs the function of hpermanent office.- does not entitle the officer to additional benefits, no security of tenure.

Steps in the appointing process:1. Nomination- exclusive prerogative of the President

o Rafael v. EACIB: Congress may increase the powers and duties of existing office without rendering it necessary that the incumbeshould again be nominated and appointed.

2. Confirmation- power belongs to Congress

- no appointment yet in the strict sense until it is confirmed.3. Issuance of Commission- a written authority from a competent source given the officer as his warrant for the exercise of the powers and duties of the officewhich he is commissioned.

C. Appointments in the Civil Service

The Civil Service System1. Scope- Consti, art. 14-b, sec. 2 (1)2. purpose- application of the merit system instead of the spoils system

Classification of positions in the CSC:PD 8071. Career service:

Section 5. The Career Service shall be characterized by (1) entrance based merit and fitness to be determined as far as practicable by competitiv


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examinations, or based on highly technical qualifications; (2) opportunity foradvancement 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 anappropriate examination is required;

2. Closed Career positions which are scientific or highly technical in nature; theseinclude the faculty and academic staff of state colleges and universities, andscientific and technical positions in scientific or research institutions which shallestablish and maintain their own merit systems;

3. Positions in the Career Executive Service; namely, Undersecretary, AssistantSecretary, Bureau Director, Assistant Bureau Director, Regional Director,Assistant Regional Director, Chief of Department Service and other officers ofequivalent rank as may be identified by the Career Executive Service Board, all ofwhom are appointed by the President;

4. Career officers, other than those in the Career Executive Service, who areappointed by the President, such as the Foreign Service Officers in theDepartment of Foreign Affairs;

5. Commissioned officers and enlisted men of the Armed Forces which shallmaintain a separate merit system;

6. Personnel of government-owned or controlled corporations, whether performinggovernmental or proprietary functions, who do not fall under the non-careerservice; and

7. Permanent laborers, whether skilled, semi-skilled, or unskilled.

2. Non- Career Serive:

Section 6. The Non-Career Service shall be characterized by (1) entrance onbases other than those of the usual tests of merit and fitness utilized for the careerservice; and (2) tenure which is limited to a period specified by law, or which iscoterminous with that of the appointing authority or subject to his pleasure, orwhich is limited to the duration of a particular project for which purposeemployment was made.

The Non-Career Service shall include:

1. Elective officials and their personal or confidential staff;

2. Department Heads and other officials of Cabinet rank who hold positions at thepleasure of the President and their personal or confidential staff(s);

3. Chairman and members of commissions and boards with fixed terms of officeand their personal or confidential staff;

4. Contractual personnel or those whose employment in the government is inaccordance with a special contract to undertake a specific work or job, requiringspecial or technical skills not available in the employing agency, to beaccomplished within a specific period, which in no case shall exceed one year,and performs or accomplishes the specific work or job, under his ownresponsibility with a minimum of direction and supervision from the hiring agency;and

5. Emergency and seasonal personnel.

Classes of positions in the career service:classes includes all positions in the government service that are sufficientlysimilar as to duties and responsibilities and require similar qualifications that canbe given the same title and salary and for all administrative compensationpurposes, be treated alike.

PD 807, SEC. 7Section 7. Classes of Positions in the Career Service.

(a) Classes of positions in the career service appointment to which requiresexaminations shall be grouped into three major level as follows:

1. The first level shall include clerical, trades, crafts, and custodial servicepositions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiatestudies;

2. The second level shall include professional, technical, and scientific positionswhich involve professional, technical, or scientific work in a non-supervisory orsupervisory capacity requiring at least four years of college work up to DivisionChief level; and

3. The third level shall cover positions in the Career Executive Service.

(b) Except as herein otherwise provided, entrance to the first two levels shall through competitive examinations, which shall be open to those inside and outsithe service who meet the minimum qualification requirements. Entrance to higher level does not require previous qualification in the lower level. Entrance the third level shall be prescribed by the Career Executive Service Board.

(c) Within the same level, no civil service examination shall be required f

promotion to a higher position in one or more related occupational groups.candidate for promotion should, however, have previously passed the examinatifor that level.

Constitutional Classification

CONSTI., ART. IX-B, SEC. 2(2)

(2)Appointments in the civil service shall be made only according to merit anfitness to be determined, as far as practicable, and, except to positions which apolicy-determining, primarily confidential, or highly technical, by competitiexamination.

1. competititve- according to merit and fitness2. non-competititve- policy determinining, primarily confidential

Determination of Merit and fitness by competitive examinationExemption from rule of non-competitive competition1. policy-determining: occupant is vested with the power of formulating policies fthe government or any of its agencies, subdivisions, or instrumentialities.2. primarily confidential: occupant enjoys more than the ordinary confidence in h

aptitutde of the appointing power but bears primarily such close intimacy whiinsures freedom of intercourse without embarrassment or freedom from misgiviof betrayal of personal trust on confirdential matters of state.- it is the nature of the position which finally determines whether a position primary confidential. (e.g. security guard)- termination of hteir official relation can be justified on the ground o floss confidence bcause in that case, their cessation from office involves no removbut merely the expiration of the term of office.

o De los santos v. Mallari: proximity rule- where the position is alrearemote from that of the appointing authority, the element of trubetween them is no longer dominant.

3. Highly technical: occupant is required to possess skill or training in the supremor superior degree

Qualification standards in the Civil Service- expresses the minimum requirement for a class of positions in terms education, training and experience, civil service eligibility, physical fitness, aother qualities required for successful performance.- offsetting of deficiencies allowed.

Kinds of appointment in the career service- depends on nature of the appointment extended, which depends on the eligibiof the appointee or his lack of it, and not the nature of the position filled.1. Permanent: one which is issued to a person who meets all the requirments fthe position to which he is appointed, in accordance with the provisions of law athe rules and standards promulgated, it lasts until lawfully terminated2. Temporary or acting: issued to a person who meets all the requirements for thposition to which he is being appointed except the appropriate civil servieligibility; it shall not exceed 12 months. The appointee may be replaced soonera qualified civil service eligible becomes available.

Instances of temporary Appointment- the subsequent acquisition of the required eligibility will not make a temoporaappointment regular or permanent. A new appointment, not merely reinstatemeis needed. A permanent appointment is not a continuation of the temporaappointment or they are 2 distinct acts of the appointing authority.- the appointment is termporary only and the appointee can be replaced even non-eligible whenver there is no civil service eligible actually available and rea

to accept appointment.e.g. officer in charge, appointment held at the pleasure of the appointing powetemporary in nature.

Separation of Temporary Employees- can be terminated or withdrawn at the pleasure of the appointing authoritwithout notice or hearing, or at a moment notice, and regardless of grounds reasons. The appointee can be transferred without violating the constitutionaguaranteed security of tenure.CONSTI, ART. IX-B, SEC. 2(6)- separation should only be made for justifiable cause.- doesnt grant a blanket authority to the appointing power to remove him at atime without cause where the appointment is for a definite period.

Qualification in an appropriate examinationPD 807, sec. 19 (7) (8)


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7. Qualification in an appropriate examination shall be required for appointment topositions in the first and second levels in the career service in accordance with theCivil Service rules, except as otherwise provided in this Decree: Provided, Thatwhenever there is a civil service eligible actually available for appointment, noperson who is not such an eligible shall be appointed even in a temporarycapacity to any vacant position in the career service in the government or in anygovernment-owned or controlled corporation, except when the immediate filling ofthe vacancy is urgently required in the public interest, or when the vacancy is notpermanent, in which cases temporary appointments of non-eligibles may be made

in the absence of eligibles actually and immediately available.

8. The appropriate examinations herein referred to shall be those given by theCommission and the different agencies: Provided, however, That nothing hereinshall affect those eligibles acquired prior to the effectivity of this Civil Service Law:Provided, further, That a person with a civil service eligibility acquired bysuccessfully passing an examination shall be qualified for a position requiring alower eligibility if he possesses the other requirements for appointment to suchposition.

-issuance/ revocation of certificate of eligibility: the Commissions power to issuecertificate of eligibility carries with it the power to revoke a certificate for being nulland void, and it may do so motu-proprio without notice and hearing to theexaminee.

Approval of appointments by the CSC1. Appointments required to be approved- exceptions: presidential appointments, AFP, police forces, firemen, jail guards2. Right of appointee to a hearing in case of disapproval- need not be previously

heard since the action does not involve the impositionof an administrativedisciplinary measure upon hi. Afforded an opportunity through filing MR.- it may recall on its own initiative the erroneous intial approval of an appointmentand review the same de novo.3. Effectivity of appointment until disaprroval- without prejudice tot eh liability of the appointing authority for appointmentsissued in violation of existing laws or rules.- Sec. 11, Rule V of Omnibus Rules :an appointment not submitted to theCommission within 30 days from the date of issuance shall be ineffective.4. Criterion to be employed5. Extent of Commissioners authority- limited to reviewing appointments,approving or disapproving them in the light of the requirements of the law. It mayorder reinstatement of an illegally demoted or dismissed Employee.6. Attestation of appointment-once this function is discharged, its participation inthe appointment process ceases.- purpose of attestation: to determine whether the appointee possesses thatrequisite civil service eligibility.7. keeping of records of all appointments8. recall of appointment-an appointment accepted cannot be withdrawn by the

appointing authority until disapproved by the Commission. The latter is authorizedto recall appointment initially approved but only when such appointment andapproval and proven to be in disregard of applicable provisions of civil service lawand regulations.9. Grounds for recall:

a. non-compliance with the procedures/criteria provided in the agencysmerit promotion plan.

b. failure to pass through the agencys selection/ promotion boardc. violation of the existing collective agreement between management

and employees relative to promotiond. violation of other existing civil service law, rules and regulations

Appointment through certification- shall be issued to a person who has been selected from a list of qualifiedpersons certified by the Commission from an appropriate register of eligibles andwho meets all other requirements of the position.- all such person must serve a probationary period of 6 months following theiroriginal appointment and shall undergo a thorough character investigation in orderto acquire a permanent civil service status.

D. Vacancy

Meaning of vacancy: when an office is empty and without a legally qualifiedincumbent appointed or elected to it with a lawful right to exercise its powers andperform its duties.

Existence of Physical Vacancy not essential

Appointment to a non-vacant position- there can be no appointment to a non-vacant position.

Classification of vacancy:1. Original: office is created an no one has been appointed to fill it2. Constructive: when the incumbent has no legal right or claim to continue in

office and can be legally replaced by another functionary

3. Accidental: when the incumbent having died, resigned, or been removethere is no in esse discharging the duties of the office

4. Absolute: term of an incumbent having expired and the latter not haviheld over, no successor is in being who is legally qualified to assume toffice.

Causes of Vacancy

Filing of anticipated vacancies:1. Generally- Where a public officer resigns in his office to take effect at a futuday, and his resignation is accepted, the appointing power being, as theorganized, authorized to fill the vacancy when it shall occur, may appointsuccessor, the appointment to take effect when the resignation becomoperative.2. Where appointment to take effect after expiration of appointing powappointing power cannot forestall the rights and prerogatives of their successoby appointing successors to offices expiring after its power to appoint has itsexpired.

E. Qualifying to Office

Qualification as an act to an office.e.g. taking and often of subscribing and filing of an official oath, and in somcases, of the giving of an official bond.

o Quiatchon v. Villanueva: the reckoning point in determining tqualification of an appointee is the date of issuance of the appointmeand not the date of its approval by the CSC or the date of rsolutoagainst it.

Effect of failure to qualify: would be deemed evidence of a regusal of the officOath of office for public officers and employees1. under the constitution2. Under the admin code of 19873. under the LGC

Neccesity of an oath of office- an oath of office is a qualifying requirement forpublic office, a prerequisite to the full investure with the office; it need not be writing or be subscribed by the affiant.- although the law requires taking of an oath, it is not indispensable. It is meincident to the office and constitutes no part of the office itself.- President, VP and acting President, cannot enter on the execution of his offiwithout taking prescribed oath or affirmation. It is mandatory

Public officers and employees required to give bonds:purpose is to protepublic funds

Nature of official Bonds1. an indemnity bond rather than a penal or forfeiture bond2. required not for the benefit of the office holder, but for the protection of pubinterest3. collateral security for the performance of the off icers duty.

Necessity of Giving official bonds:1. Requirement, a mere incident of office2. Where time prescribed within which to give bond= considered to be directoonly and not mandatory.- failure to give bond does not ipso facto work a forfeiture of his office.- the rule is different where the giving of a bond is expressly made a conditioprecedent. The office will be regarded as vacated when the required bond is ngiven within the time limited.

F. De Facto Officers

De facto doctrine:a person who, by the proper authority, is admitted and swointo office is deemed to be rightfully in such office until, by judicial declaration inproper proceeding, he is ousted therefrom, or his admission thereto is declar

void.

Basis and reason for the doctrine1. fear of chaos that would result from multiple and repetitious suits challengievery action taken by every official whose claim to office could be open question.2. seeks to protect public by insuring the orderly functioning of the governmedespite technical defects in title to office.

De facto officer defined: one who is in possession of an office in the opexercise of its functions under color of an election or an appointment even thousuch election or appointment may be irregular or informal.

De jure officer defined: one who has the lawful right to the office in all respecbut who has either been ousted from it, or who has never actually takepossession of it..


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Requirements to become officer de jure:1. must possess the legal qualifications for the office2. lawfully chosen to such office and3. must have qualified himself to perform the duties of such office according to themode prescribed by the Constitution or alw.

Officer de jure and Officer De facto distinguished

De Jure De Facto

Rests on right Rests on reputation

Has lawful right or title tot eh office Has possession and perform the dutiesunder color or right or authority withoutbeing technically qualified

Cannot be removed in a directproceeding

May be ousted in a direct proceeding

- Whilre there can be no de facto officer where there is no de jure office, theremay be a defacto officer in a dejure office.

Usurper or intruder defined: one who takes possession of the office andundertakes to act officially without any color of right or authority, either actual orapparent.

De facto Intruder

Has color of right or title Has neither laful title nor color of right

Assumes to exercise his functionswhere the public does not know norought to know his lack of title

Assumes to act where the publicknows or ought to knows that he is ausurper

May be removed only in a direct

proceeding

Can be ousted any time

All acts otherwise legitimate done arevalid

Acts are absolutely null and void

A usurper may grow into an officer de facto it his assumption of the office isacquiesced in. This happens when he continues to act for so long a time as toafford a strong presumption that eh has been duly appointed or elected.

Double occupancy of a single office- not allowed

Elements of de facto officership1. there must be a de jure office2. there must be a color of right or general acquiescence by the public3. Actual physical possession of the office in good faith.

Office created under an unconstitutional statute1. View that occupant not even officer de facto: an unconstitutional law is not alaw; it confers no rights; it imposes no duties and affords no protection.2. Contrary view: where an office is provided for by an unconstitutional statute, the

incumbent for the sake of public policy and the protection of private rights, will berecognized as officer de facto until the constitutionality of the act has beenjudicially determined.

Legal effects of acts of de facto officers1. As regards the officers themselves- not sufficient that he be merely a de factoofficer. The acts as far as he himself is concerned are void2. As regards the public and third persons- valid as to third persons and the publicuntil his title to office is adjudged insufficient. Public has a right to assume thatofficials apparently qualified and in office are legally such.

Proceedings to try right or title of a de factor officer- quo warranto proceeding:may be instituted only by the person who claims to be entitled to the office or bythe Sol Gen.

Right to compensation of a de facto officer1. General Rule- de facto officer cannot maintain an action to recover the salary orother emolmuments. Only an officer de jure can maintain an action for

compensation.2. Exception: One who becomes a public officer de facto withut bad faith on hispart, and who renders the services required of the office, may recover thecompensation provided by law for such services during the period of theirrendition or retain the emoluments received during that time, or is legally entitledto the emoluments of the office.! exception doesnt apply where the officer was not appointed but merelydesignated.

Liabilities of de facto officer: held to the same degree of accountability forofficial acts as de jure officer. They cannot excuse responsibility for crimescommitted in his official capacity by asserting that the was an officer de facto.- Where there is de jure officer, a de facto officer, during his wrongful incumbencyis not entitled to the emoluments attached to the office, even if he occupied theoffice in good faith.

Chapter 4: Powers, Duties and Norms of Conduct of Public Officers

Sources of power and authority of Public OfficeConsti, art. Ii, sec. 1

Authority of Public Officer not presumed

Authority of Public Officer and Private Agents distinguished

Ascertainment of authority of public officer-it is presumed that all persohaving occasion to deal with a public officer have knowledge of his authority.

Scope of power of a public officer:1. expressly conferred upon him by law under which he has been appointed elected2. expressly annexed to the office by the law which created it or some other lareferring to it; or3. attached to the office as incidents to it (may be implied from the wording of tlaw)

Territorial limitation of authority of public officers1. limited to territory where law has effect2. action at a place not authorized by law ordinarily invalid.

Duration of authority1. Duration of term: can exercise no authority before his term begins or aftehas terminated.2. Where officer chosen to act in reference to a particular subject

Construction of grant of powers- subject to strict inerpretation and will construed as conferring those powers only which are expressly imposed necessarily implied.

Classification of powers and duties:1. from their nature:a. ministerial: one which a person performs on a given statement of facts and inprescribed manner, in obedience to the mandate of legal authority, without regato, or the exercise of his own judgment upon the propriety or impropriety of the adone.b. Discretionary- require the exercise of reason in the adaptation of means to aend, and discretion in determining how or whether the act shall be done or thcourse pursued.2. from the standpoing of the obligation of the officer to perform his power:a. mandatory- where they are for the benefit of the public or individuals.b. Permissive- time and mode in which public officers wil discharge their dutiand those which are obviously designed merely to secure order, uniformitsystem and dispatch.3. from the standpoint of the relationship of the officer to his subordinates:a. power of control power to manage, direct or govern, including the power alter or modify or set aside what a subordinate had done in the performance of hduties.b. power of supervision- power of mere oversight over an inferior body.

Remedy to compel exercise of duty- mandamus

Delegation of discretionary powers- unless the power to substitute another his place has been given to him, a public officer cannot delegate his duties another.

o Torres v. Ribo: An officer to whom a discretion is entrusted canndelegate it to another.

Delegation of ministerial powers- performance of duties of this nature maunless expressly prohibited, be properly delegated to another.- Where, however, the law expressly requires the act to be performed by thofficer in person, it cannot, through ministerial be delegated to another.

Time to perform official acts:1. Where no time stated in statute- dut must be performed within a reasonabtime2. where time stated in statute- construed as directory unless the nature of the ato be performed or the language used evidences an intention to limit the power the officer.

Ratification of unauthorized acts-an act which was absolutely void at the time it was done cannot be ratified. If tact was merely voidable, it can be rendered valid.

Judicial Review of official acts1. where act involves exervise of discretionary power- court may not interfere2. where act involves exercise of purely ministerial duty- may be compelled mandamus or prevented by injunction3. where act reviewed done without jurisdiction- it is for the courts to finadetermine


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Norms of conduct of public officials and employees1. Public office is a public trust2. Standards of personal conduct:

a. commitment to public interestb. professionalismc. justness and sincerityd. political neutralitye. responsiveness to publicf. nationalism and patriotismg. commitment to democracyh. simple living

System of Incentives and rewards

Duties of public officers as trustees for the publica. Duty to obey the lawb. Duty to accept and continue in officec. Duty to accept burden of officed. Duty as to diligence and caree. Duties in choice and supervision of subordinates

Duty to make financial disclosureConsti, art. Vi, sec. 12Consti art. Xi, sec. 17

Specific duties of public officials and employees1. Act promptly on letters and requests2. Submit annual performance reports3. Process documents and papers expeditiously4. act immediately on the publics personal transactions5. Make documents accessible to the public.

Actions on requests and petitions: within 15 working days from receipt thereof

Processing Papers and documents:within reasonable time

Singing of any written action or decision

Public Disclosure of statements of assets and liabilities- All public officials and exmployees, except those who serve in an honorarycapacity, laborers and casual or temporary workers shall file SALNWhen to file:1. within 30 days after assumption of office2. on or before April 30 of every year thereafter3. within 30 days after separation from service- relatives include those up to the 4

th civil degree of relationships, either of

consanguinity or affinity, including bilas, inso and balae.

Transparency of transactions and access to information

Reforms on Public administrative system:1. conduct value development programs2. Conduct professional, etc. programs3. conduct studies and analyses of work systems4. develop and make available a service guide5. consult the public for feedback and suggestions6. conduct research and experimentation7. designate a resident ombudsman8. consult dialogue with staff

Chapter 5: Rights and Privileges of Public Officers

A. In general

Rights incident to public office-measured by the constitution or law

Rights as Citizen:1. Protection from publication commenting on his fitness and the like- not entitled to the same protection from publications as is accorded to ordinarycitizen2. engaging in certain political and business activities- may require public employees to suspend or refrain from certain political orbusiness activities.

B. Right to compensation1. power primarily but not exclusively legislative in character2. power may be delegated subject to statutory limitations.

Compensation, not an element of public office

Form of compensation defined and distinguished

Compensation: pay for doing all that may be required of the official, whether it isthe form of a f ixed salary or wages, per diems.

o GSIS v. CSC: GS Insurance Act defines compensation as the bapay or salary received by an employee pursuant to his employmeexclusing per diems. Bonuses, overtime pay and allowances. But whought to be controlling should be the nature of the remuneration raththan the label attached to it. While there can be no dispute that the laexepts per diems from the definition of compensation, the amounreceived and denomited as per diem may be construed compensation or allowance within the contemplatio

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