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Reviewer on Law on Public
Officers Alberto C. Agra, Ateneo
Law School
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REVIEWER ON THE LAW ON PUBLIC OFFICERS
Alberto C. Agra and Sarah Lou Ysmael Arriola Ateneo Law School
February 15, 2013
Part 1. Definitions, Distinctions, and Classifications
A. Meaning of office 1. “Office” may be defined as a position or
function by virtue of which a person is
employed in another’s affairs, either by being appointed,
elected, or appointed during the pleasure of the appointing power
or for a fixed term (63A Am. Jur. 2d 667).
B. Meaning of public office
a. It refers to the right, authority, and duty created and
conferred by law, by which for a given period, either fixed by law
or enduring at the pleasure of the appointing power, an individual
is invested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the public
(MECHEM, A Treatise on the Law of Public Officers and Officers, pp.
1-2 (1890); see Aparri v. Court of Appeals, 127 SCRA 231
(1984).
b. It is a charge, station or employment conferred by
appointment or election by
government (Metchalf & Eddy v. Mitchell, 269 U.S. 514, 70 L.
Ed. 384, 46 S. Ct. 172).
C. Purpose and Nature of Public Offices 1. It is created to
effect the end for which government has been instituted, which is
the
common good, and not for profit, honor, or private interest of
any person, family, or class of persons.
2. A public office is a public trust created in the interest and
for the benefit of the people.
D. Public office is a public trust. 1. Holders are regarded as
public servants. The powers delegated to them are held in trust
for the people and are to be exercised in behalf of the
government or all citizens. 2. Holders are subject to highest
standards of accountability and service.
E. Public office is not a property.
1. Holder are subject to removal or suspension according to law.
a. Proprietary claim to public office is precluded. b. However, the
officer is not to be denied due process of law by the abolition of
the
office before expiration of term or by his removal/suspension
according to law or by the passage of a statute limiting or
reducing his compensation.
c. An officer has no property rights in the books and papers
pertaining to his office.
2. Holders are without any vested right in any public office. a.
Except constitutional offices which provide for special immunity on
salary and
tenure, no one can be said to have any vested right to an office
or its salary, let alone an absolute right to it. (Sangguniang
Bayan of San Andres, Catanduanes v. Court of Appeals, 284 SCRA 270
(1998))
3. Holder’s right in nature of privilege entitled to
protection.
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Reviewer on Law on Public
Officers Alberto C. Agra, Ateneo
Law School
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a. An office may be considered property within the protection of
due process in controversies relating to the question as to which
of two persons is entitled thereto, as well as concerns about one’s
constitutional right to security of tenure.
4. Holder’s right to personal claim. a. Public office is
personal to the incumbent or appointee. As such, it is not
property
which passes to his heirs upon death.
Segovia v. Noel (47 Phil., 543 [1925]) S, a justice of the
peace, was ordered by the Secretary of Justice to vacate the post
when he became 65 years old as per Act No. 3107. The said law
amended Section 203 of the Administrative Code by stating that
“justices of the peace…are to serve until they reach the age of
65”. N, the auxiliary justice, acted as justice of the peace. S
filed for quo warranto. S should not step down as per Act No. 3107.
The Act did not amend the Administrative Code which provides that
“a justice of the peace having the requisite legal qualifications
shall hold office during good behavior unless his office be
lawfully abolished or merged into the jurisdiction of some other
justices”. A statute operates only prospectively unless otherwise
provided by the express terms of the statute or by necessary
implication. The right to an office is not vested but such right
shall be taken away only when the terms of the law is clear in
which the purpose is stated.
F. Public office is not a contract. a. It creates no contractual
relation between the holder and the public. b. It exists by virtue
of some law expressly or impliedly creating it. c. It generally
entitled the holder to compensation for performance of his public
duties.
However, salary is a mere incident and forms no part of the
office. It is not a necessary criterion for determining the nature
of the position (Laurel v. Desierto, 381 SCRA 48 (2002); Serana v.
Sandiganbayan, 212 SCRA 224 (2008)).
G. Public Office and Public Contract distinguished
As to Public Office Public Contract
Creation A public office is an incident of sovereignty.
A contract originates from the will of the parties and subject
to the limitations imposed by law.
Object A public office’s object is to carry out governmental and
sovereign functions even those not bound by contract.
A contract imposes obligations only upon those who entered
it.
Subject Matter and Scope In a public office, there is tenure,
duration and continuity.
In a contract, there are terms defining and limiting the rights
and obligations of the parties.
H. Public Office and Public Employment distinguished
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Reviewer on Law on Public
Officers Alberto C. Agra, Ateneo
Law School
3
As to Public Office Public Employment Key Considerations There
is a delegation of some
of the sovereign functions of government to a public office.
Every public office may be an employment.
No such delegation of sovereign functions to public employment.
Every public employment is not an office.
Manner of Creation A public office is created by law with duties
involving the exercise of some portion of the sovereign power.
Public employment lacks such elements of a public office.
I. Essential elements of a public office:
a. It is created by the Constitution or by law or by some body
or agency to which the power to create the office has been
delegated;
b. It must be invested with an authority to exercise some
portion of the sovereign power of the State to be exercised for
public interest;
c. Its powers and functions are defined by the Constitution, or
by law, or through legislative authority;
d. The duties pertaining to a public office are performed
independently, without control of a superior power other than law,
unless they are those of an inferior or subordinate officer,
created or authorized by the legislature and placed by it under the
general control of a superior officer or body; and
e. It is continuing and permanent in nature and not occasional
or intermittent (State v. Taylor, 144 N.W. 2d. 289).
J. Creation of public office
a. Generally, a public office is created by some constitutional
or statutory provision or by
authority conferred by it.
b. By the exercise of Congress of its legislative function.
Except for such offices created by the Constitution, the
legislative department has the primary discretion to determine
whether additional public offices shall be created, or whether
these duties shall be attached to and become ex officio duties of
existing offices.
c. By the President in so far as bureaus, agencies, or offices
in the executive department are concerned, in the exercise of the
continuing authority to reorganize the administrative structure of
the Office of the President (Buklod ng Kawaning EIIB v. Zamora, 360
SCRA 718 (2001)).
K. Modification or abolition of public offices
1. The power to create an office generally includes the power to
modify or abolish it; as
well as the power to fix the number of positions and the
salaries and emoluments of the holders thereof and provide funds
for the offices created.
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Reviewer on Law on Public
Officers Alberto C. Agra, Ateneo
Law School
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2. Office created by Congress a. Unless prohibited by the
Constitution, Congress may control, modify, consolidate,
or abolish public offices created by it whenever such course may
seem necessary, expedient, or conducive to the public good.
3. Offices created by the Constitution
a. Constitutional offices may be modified or abolished by the
people through a constitutional provision, and such offices are
beyond the power of the legislature to alter or discontinue.
However, the mere mention of an office in the Constitution does not
necessarily endow the office with constitutional status which
prevents its abolition by Congress (63A Am. Jur. 2d 687-688).
L. Exercise of sovereign powers and functions
1. One of the most important criteria of public office a.
“Public office” implies an authority to exercise some portion of
the sovereign power
of the State in making, executing, or applying the law. 2.
Authority conferred by law
a. The authority to exercise some portion of the sovereign power
is bestowed by law. Unless the powers conferred are of this nature,
the position is not a public office.
3. Extent of authority not material a. It is the duties of an
incumbent’s office which makes him a public officer and not the
extent of his authority. 4. Presumption of regularity of
official acts
a. Public officers enjoy the presumption of regularity in the
exercise of their functions, and the presumption may be overthrown
only be clear and convincing proof to the contrary. However, the
presumption does not apply when an official’s acts are not within
the duties specified by law, particularly when his acts properly
pertain or belong to another entity, agency, or public official
(Reyes, Jr. v. Belisario, 596 SCRA 31 (2009)).
Laurel vs. Desierto (381 SCRA 48 [2002]) The most important
characteristic in determining whether a position is a public office
or not, is the delegation to an individual of some of the sovereign
functions of the government, i.e. executive, legislative or
judicial functions to be exercised for the benefit of the public.
Petitioner, Laurel, was appointed as the Chairperson of the
National Centennial Commission (NCC) created under Executive Order
No. 128. The NCC is tasked to undertake the preparations for the
celebration of the Philippine Independence. Such occasion is said
to be a vehicle in showcasing Filipino heritage and identity, which
is mandated under Article XIV of the 1987 Constitution. The NCC,
therefore, performs an executive function in implementing the
supreme law of the land. The inescapable conclusion is that "NCC is
a public office and petitioner, as its Chair, is a public officer."
That the petitioner did not receive a salary is of no moment
because compensation is a mere incident of public office. As NCC
chair, petitioner is occupying an honorary office as distinguished
from a lucrative office albeit it is still a public office.
"Neither is the fact that the NCC was characterized by E.O. No. 128
as an "ad-hoc body" makes said commission less of a public
office."
Serana vs. Sandiganbayan, et. al. (G.R. No. 162059, January 22,
2008)
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Reviewer on Law on Public
Officers Alberto C. Agra, Ateneo
Law School
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"As an investment in an individual of some portion of the
sovereign functions of the government to be exercised by him for
the benefit of the public makes one a public officer." Petitioner
Serana, as the student regent of the University of the
Philippines-Diliman is deemed a public officer because a perusal of
the existing charter of UP would show that the Board of Regents,
where petitioner is a member, exclusively exercises the powers of
administration of the University. The fact that Serana does not
receive any salary as a student regent is of no moment because
compensation is not a essential element of public office.
Go vs. Sandiganbayan et. al. (G.R. No. 172602, 13 April 2007)
The fact that petitioner, Go, is not a public officer would not
automatically exclude him from the application of Section 3(g) of
RA 3019 or The Anti Graft Law. Section 3(g) penalizes public
officers who enter into a transaction in behalf of the government,
which is manifestly and grossly disadvantageous to the latter,
regardless of whether such public officers profited or will profit
thereby. To say otherwise could do violence with the avowed policy
of the said law to "repress certain acts of public officers and
private persons." "Private persons, when acting in conspiracy with
public officers, may be indicted and if found guilty be held liable
for the pertinent offenses under Section 3 of RA 3019."
Javier vs. Sandiganbayan, et. al. (G.R. 147026-27, 11 September
2009) Petitioner was invested by law with some portion of the
sovereign functions of the government and is therefore a public
officer. She is the representative of the private sector in the
National Book Development Board (NBDB), which is a statutory agency
created by RA 8047. The primary purpose of the said law is to
ensure the development of the book publishing industry and the NBDB
is tasked to supervise the implementation of the same. Further,
pursuant to the Anti-Graft Law, petitioner is a public officer
since she was appointed by the President to the Governing Board of
the NBDB. The fact that she was not receiving a salary is
inconsequential because under the Anti-Graft Law, "the nature of
one's appointment, and whether the compensation one receives from
the government is only nominal, is immaterial because the person so
elected or appointed is still considered a public officer." Also,
petitioner is a public officer under the Revised Penal Code
considering that she takes part in the performance of public
functions in the government. During her tenure, she took pat in the
formulation of the implementing rules and regulations of RA
8047.
M. Tenure and duration 1. Existence of definite tenure is
immaterial.
a. The duration of tenure need not be for a fixed period, but
may be at the pleasure of the appointing power (63A Am. Jur. 2d
670).
2. Continuance of office holder is immaterial. a. The duties
attached to the position continue although the officer holder may
change.
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Reviewer on Law on Public
Officers Alberto C. Agra, Ateneo
Law School
6
3. Permanence of office is immaterial. a. If the other elements
are present, it makes no difference whether there can be but
one act or a series of acts to be done – whether the office
expires as soon as the one act is done, or is to be held for years
or during good behavior.
N. Meaning of officer/public officer/employee/public
official
1. “Officer” is one who holds a public office. Under the
Administrative Code of 1987, it
refers to a person whose duties involve the exercise of
discretion in the performance of the functions of the
government.
2. “Public officer” is such an officer as is required by law to
be elected or appointed, who has a designation or title given to
him by law, and who exercises functions concerning the public,
assigned to him by law (63A Am. Jur. 2d 670). Under the Revised
Penal Code, any person who takes part in the performance of public
functions or performs public duties is deemed a public officer. The
RPC definition, therefore, eliminates the standard distinction
between “officer” and “employee”.
3. “Employee” includes any person in the service of the
government or any of its agencies, divisions, subdivisions, or
instrumentalities.
O. Officer and employee distinguished
1. In the law of public officer a. The definition of public
officer is imbued with greater importance, dignity, and
independence of his position. In addition, a public officer must
be invested by law with a portion of the sovereignty of the State
and authorized to exercise functions of an executive, legislative,
or judicial character.
2. Under the Revised Penal Code
a. Any person who takes part in the performance of public
functions or performs public duties is deemed a public officer.
Azarcon vs. Sandiganbayan, et. al., (268 SCRA 747 [1997]) By
signing the receipt for the truck constructively distraint by the
Bureau of Internal Revenue, petitioner, Azarcon, became the
custodian of such properties with an obligation to preserve the
same and not allow any person to remove it without the authority of
the BIR. This designation, however, did not make him a "public
officer" within the purview of the Revised Penal Code. Petitioner's
appointment is neither by popular election nor by direct provision
of law nor by competent authority. There is no provision in the
National Internal Revenue Code that constitutes the private
individual appointed by the BIR as depositary, a public officer.
Further, nowhere is it provided in Article 222 of the RPC that a
private individual falling therein as administrator or depositary
of funds or property attached or seized by public authority, is to
be deemed a public officer. Since petitioner is not a public
officer but a private individual, the Sandiganbayan has no
jurisdiction over him. Azarcon cannot be charged of malversation of
public funds, absent an allegation that he is a co-pricipal,
accomplice or accessory acting in conspiracy with a public
officer.
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Reviewer on Law on Public
Officers Alberto C. Agra, Ateneo
Law School
7
P. Meaning of public official 1. “Public Official” is defined as
an officer of the Government itself, as distinguished from
the officers and employees of instrumentalities of the
government. However, the term public official is ordinarily
synonymously used with public officer.
Q. Classification of public offices/public officers
1. As to nature of functions
a. Civil Office(r) - covers any kind of public office, whether
executive, legislative, or judicial, but excluding military
offices.
b. Military office(r) - includes all offices in the armed forces
which solely involve military functions.
2. As to creation
a. Constitutional office(r) – one created by the Constitution b.
Statutory office(r) – one created by statute and over which
Congress has full control.
3. As to the department of government to which it belongs
a. Legislative office(r) – one charged with functions involving
mainly the enactment of laws.
b. Executive office(r) – one charged with functions involving
mainly the execution or administration of laws.
c. Judicial office(r) – one charged with functions connected
with the adjudication of actual justiciable controversies and the
interpretation of laws.
4. As to the branch of government served
a. National office(r) – includes any office in the national or
central government as distinguished from local governments.
b. Local office(r) – includes any office in the political
subdivisions of the Philippines such as autonomous regions,
provinces, cities, municipalities, barangays, and other forms of
local government.
5. As to whether exercise of discretion is required
a. Quasi-judicial office(r) – includes any office (other than
courts of justice) whose officers are charged with functions that
are not strictly judicial but require the exercise of discretion or
judgment.
b. Ministerial office(r) – includes any office whose officers
are charged with the duty to execute mandates lawfully issued by
their superior.
6. As to compensation
a. Lucrative office(r) – any office to which salary,
compensation or fees are attached. b. Honorary office(r) – no
compensation is attached.
Part 2. Eligibility and Qualifications
A. In General
1. Meaning of eligibility/eligible/ineligibility/ineligible a.
“Eligibility” – state or quality of being legally fitted or
qualified to be chosen.
Eligibility to a public office is of a continuing nature and
must exist both at the commencement and during the occupancy of an
office (Aguila v. Genato, 103 SCRA (1981)).
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Reviewer on Law on Public
Officers Alberto C. Agra, Ateneo
Law School
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b. “Eligible” – means being legally fitted or qualified to hold
an office. Under the Administrative Code of 1987, it refers to one
who obtains a passing grade in a civil service exam (Executive
Order No. 292, Book V, Title I, Subtitle A, Chapter 1, Section
5(8)).
c. “Ineligibility” – refers to lack of qualifications required
by law for holding public office.
d. “Ineligible” – may mean legally or otherwise disqualified to
hold an office; disqualified to be elected to an office;
disqualified to hold an office if elected or appointed to it.
2. Meaning of Qualification
a. It may refer to the endowment or accomplishment that fits one
for office; or b. It may refer to the act which a person is legally
required to do before entering upon
the performance of his duties.
3. Nature of right to hold public office a. Not a natural
right
1. It exists only because of some law expressly or impliedly
creating or conferring it.
b. Not a constitutional right 1. It is not a constitutional
right but a political privilege that depends upon the favor
of the people and subject to reasonable conditions for the
public good, lawful, and non-discriminatory terms laid down by
law.
4. Power of Congress to prescribe qualifications
a. In general 1. Congress has the power to prescribe such
qualifications which must have a
rational basis with the duties of the position in question, and
not inconsistent with constitutional provisions.
b. Where office is created by Congress 1. Congress is empowered
to specify qualifications and disqualifications as long as
these are not contrary to the Constitution. c. Where office is
created by the Constitution
1. The constitutional criteria are exclusive and Congress has no
power to require different qualifications for constitutional
offices other than those qualifications laid in the Constitution,
unless the Constitution expressly or impliedly gives the power to
set qualifications.
d. Where qualifications prescribed by the Constitution 1.
Congress may prescribe certain qualifications unless it appears
that this is
prohibited.
Ignacio v. Banate, Jr. (153 SCRA 546 [1987]) Banate was
designated as member of the Sangguniang Panglungsod to replace
Ignacio who claims that Banate is not qualified because the latter
is not an officer, much less, a member of the Katipunang Panglunsod
as required under the Local Government Code. The appointment is not
valid. Banata did not meet the qualifications required by law. An
unqualified person cannot be appointed to position, even in an
acting capacity.
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Reviewer on Law on Public
Officers Alberto C. Agra, Ateneo
Law School
9
5. Power of Congress to prescribe disqualifications
a. In the absence of constitutional inhibition, Congress may
prescribe disqualifications. In addition, Congress cannot remove a
disqualification that the Constitution has attached to the
position.
Vargas v. Rilloraza (80 Phil. 297 [1948]) Vargas questions the
People Court’s Act which (1) disqualified justices who held office
under the Philippine Executive Commission during the Japanese
regime from adjudicating in cases where the “accused held offices
under the two”; and (2) provided that the President may designate
judges to temporarily serve in the Supreme Court when the number of
justices who left does not constitute a quorum. The Act is
repugnant to the Constitution. It added grounds for
disqualification of a Supreme Court justice. It disqualified a
majority of the members of the Supreme Court. In addition, the
temporary composition of the Supreme Court is not allowed as the
Supreme Court is a permanent institution as provided in the
Constitution.
6. Construction of restrictions on eligibility a. Presumption in
favor of eligibility
1. A strong public policy exists in favor of eligibility. Hence,
the right to public office should be strictly construed against
ineligibility. However, statutes declaring qualifications are to
receive liberal construction does not mean that courts could give
an unreasonable construction to uphold the right to hold
office.
b. Basis of presumption 1. A strong public policy exists in
favor of eligibility to public office. A
constitutional provision, where the language and context allow,
should be construed as to preserve this eligibility as ambiguities
are to be resolved in favor of eligibility to office.
c. Rule of liberal construction 1. The right to public office
should be strictly construed against ineligibility.
However, while statutes declaring qualifications are to receive
liberal construction, it does not mean that courts should give
unreasonable construction in order to uphold the right of one to
hold office.
7. Time of possession of qualifications
a. Where time specified by Constitution or law 1. The candidate
must possess the necessary qualifications at the time specified
by Constitution or law. b. Where Constitution or law is
silent
1. The courts may take recourse to some other means to determine
specifications such as through textual analysis of the terms used
in the qualifications.
c. When qualification must always exist. 1. Eligibility to
public office is of a continuing nature and must exist at the
commencement of the term and during the occupancy of the office
(Aguila v. Genato, 103 SCRA 380 (1981)).
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Reviewer on Law on Public
Officers Alberto C. Agra, Ateneo
Law School
10
2. The qualifications prescribed for elective office cannot be
erased by the electorate alone. The will of the people as expressed
through the ballot cannot cure the vice of ineligiibilty especially
if they mistakenly believed that the candidate was qualified.
(Frivaldo v. Commission on Elections, 174 SCRA 245 (1989))
3. It has been held, however, that Section 39 of the Local
Government Code on “Qualifications ot Elective Officials” does not
specifiy any particular date or time when the candidate must
possess citizenship, unlike that for residence (which must consist
of at least 1 year’s residence immediately preceding the day of
election) and age (at least 23 years of age on election day).
8. Removal of disqualifications during term
a. Courts have not agreed on the effect of removal of
disqualification after the commencement and during the term of
office. Some courts hold that such removal validates the title of
the incumbent. Other courts take the contrary view depending on the
nature of the disqualification, mode of removing it, time of
removal, etc.
Castañeda v. Yap (91 Phil. 819 [1923]) Elected Mayor Yap claimed
that Castañeda was estopped from questioning his eligibility (Mayor
Yao did not meet the minimum age requirement when he was
proclaimed) because Castañeda failed to do it before or during the
election. Castañeda is not estopped. A candidate’s eligibility is
always subject to question. Under the applicable law at the time of
the case was decided, the right of an elective municipal office can
be contested only after proclamation. Good faith does not cure a
candidate’s ineligibility, although it might be a good defense in a
criminal prosecution.
B. Particular Qualifications and Disqualifications
1. Qualifications usually required of public officers a.
Citizenship
1. Aliens are ineligible to public office, unless the privilege
is extended to them by law.
b. Age 1. The age limit for certain offices may, by
constitutional or statutory provision, be
placed beyond the age of majority.
c. Right of Suffrage 1. Only electors or voters are eligible for
public office.
d. Residence
1. Statute may require that a candidate for election or
appointment to an office of a political subdivision or unit be a
resident or inhabitant thereof.
2. “Residence” and “Domicile” both mean an intention to reside
in a fixed place and personal presence in that place, coupled with
conduct indicative of that intention.
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Reviewer on Law on Public
Officers Alberto C. Agra, Ateneo
Law School
11
e. Education
1. Some statutes prescribe educational qualifications for
certain offices requiring persons possessing professional
attainments.
f. Ability to read and write 1. The qualification may be
lawfully made since there is no constitutional
prohibition against it especially where it has a reasonable
relationship to the duties of the position in question.
g. Political affiliation 1. The Constitution and existing laws
sometimes require membership in a political
party or group as a condition for eligibility to certain offices
(Constitution, Article VI, Section 17, 18; Local Government Code,
Section 45(b)).
h. Civil service exam 1. Qualifications in an appropriate exam
for appointment to first and second level
positions in the career service is required under the Civil
Service Law to ensure merit and fitness to perform the duties
attached to the positions (Presidential Decree No. 807, Section
19(7)).
2. Religious qualifications prohibited.
a. Religious beliefs or opinions cannot be made a test of
political right and privilege.
b. No religious test shall be required for the exercise of civil
or political rights (Constitution, Article III, Section 5).
3. Power of Congress to impose property qualifications
a. View that law constitutional 1. Legislature has the power to
impose property qualifications upon office holders,
unless inhibited by the constitution. This view holds that
certain public officers may be required to be resident property
owners without violating due process and equal protection laws.
b. View that law unconstitutional 1. This view holds that
property ownership requirement runs against due process
and equal protection guarantees as there is no rational
connection between qualifications for administering public affairs
and ownership of real property.
2. The Supreme Court declared as unconstitutional a law
requiring all candidates for public offices to post a surety bond
equivalent to the one year salary or emoluments for the position
for which they are candidates (Maquera v. Borra, 15 SCRA 7
(1965)).
4. Qualifications prescribed by the Constitution for certain
officers
a. President and Vice-President
“No person may be elected President unless he is a natural-born
citizen of the Philippines, a registered voter, able to read and
write, at least forty years of age on the day of the election, and
a resident of the Philippines for at least ten years immediately
preceding such election.” (Constitution, Article VII, Section
2)
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Reviewer on Law on Public
Officers Alberto C. Agra, Ateneo
Law School
12
b. Senators
“No person shall be a Senator unless he is a natural-born
citizen of the Philippines, and, on the day of the election, is at
least thirty-five years of age, able to read and write, a
registered voter, and resident of the Philippines for not less than
two years immediately preceding the day of the election.”
(Constitution, Article VI, Section 3)
c. Members of the House of Representatives
“No person shall be a Member of the House of Representatives
unless he is a natural-born citizen of the Philippines, and, on the
day of the election, is at least twenty-five years of age, able to
read and write, and, except the party-list representatives, 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 the day of the election.” (Constitution,
Article VI, Section 6)
d. Members of the Supreme Court and lower collegiate court
“No person shall be appointed Member of the Supreme Court or any
lower collegiate court unless he is a natural-born citizen of the
Philippines. A Member of the Supreme Court must be at least forty
years of age, and must have been for fifteen years or more a judge
of a lower court or engaged in the practice of law in the
Philippines.” (Constitution, Article VIII, Section 7(1)).
1. “A member of the judiciary must be a person of proven
competence, integrity,
probity and independence.” (Constitution, Article VIII, Section
7(3)).
e. Chairman and Commissioners of the Civil Service
“The civil service shall be administered by the Civil Service
Commission composed of a Chairman and two Commissioners who shall
be natural-born citizens of the Philippines and, at the time of
their appointment, at least thirty-five years of age, with proven
capacity for public administration, and must not have been
candidates for any elective position in the elections immediately
preceding their appointment.” (Constitution, Article IX-B, Section
1(1)).
f. Chairman and Commissioners of the Commission on Elections
“There shall be a Commission on Elections composed of a Chairman
and 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 a college degree, and must not
have been candidates for any elective position in the immediately
preceding elections. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who have been
engaged in the practice of law for at least ten years.”
(Constitution, Article IX-C, Section 1(1)).
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g. Chairman and Commissioners of the Commission on Audit
“There shall be a Commission on Audit composed of a Chairman and
two Commissioners, who shall be natural-born citizens of the
Philippines and, at the time of their appointment, at least
thirty-five years of age, certified public accountants with not
less than ten years of auditing experience, or members of the
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
positions in the elections immediately preceding their appointment.
At no time shall all Members of the Commission belong to the same
profession.” (Constitution, Article IX-D, Section 1(1)).
h. Chairman and Members of the Commission on Human Rights
“The Commission shall be composed of a Chairman and four Members
who must be natural-born citizens of the Philippines and a majority
of whom shall be members of the Bar. The term of office and other
qualifications and disabilities of the Members of the Commission
shall be provided by law.” (Constitution, Article XIII, Section
17(2)).
i. Ombudsman and his deputies
“The Ombudsman and his deputies shall be natural-born citizens
of the Philippines, and at the time of their appointment, at least
forty years old, of recognized probity and independence, and
members of the Philippine Bar, and must not have been candidates
for any elective office in the immediately preceding elections. The
Ombudsman must have for ten years or more been a judge or engaged
in the practice of law in the Philippines.” (Constitution, Article
XI, Section 8).
5. Qualifications prescribed by law for certain officers
a. Secretaries of Departments
“The Secretaries shall be citizens of the Philippines and not
less than twenty-five years of age.” (Administrative Code of 1987,
Book IV, Chapter 10, Section 45).
b. Presiding Justice and Associate Justices of the Court of
Appeals
“The Presiding Justice and Associate Justices shall have the
same qualifications as those provided in the Constitution for
Justices of the Supreme Court.” (Batas Pambansa Blg. 129, Section
7).
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c. Judges of the Regional Trial Courts
“No persons shall be appointed Regional Trial Court judge unless
he is a natural-born citizen of the Philippines, at least
thirty-five years of age, and, for at least ten years, has been
engaged in the practice of law in the Philippines requiring
admission to the practice of law as an indispensable requisite.”
(Batas Pambansa Blg. 129, Section 15).
d. Judges of the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts
“No person shall be appointed judge of a Metropolitan Trial
Court, Municipal Trial Court, or Municipal Circuit Trial Court
unless he is a natural-born citizen of the Philippines, at least 30
years of age, and, for at least five years, has been engaged in the
practice of law in the Philippines, or has held a public office in
the Philippines requiring admission to the practice of law as an
indispensable requisite.” (Batas Pambansa Blg. 129, Section
26).
e. Elective local official 1. “An elective local official must
be a citizen of the Philippines; a registered voter
in the barangay, municipality, city or province or, in the case
of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to
be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and
write Filipino or any other local language or dialect.
2. Candidates for the position of governor, vice-governor or
member of the sangguniang panlalawigan, or mayor, vice-mayor or
member of the sangguniang panlungsod of highly urbanized cities
must at least be twenty-three (23) years of age on election
day.
3. Candidates for the position of mayor or vice-mayor of
independent component
cities, component cities, or municipalities must be at least
twenty-one (21) years of age on election day.
4. Candidates for the position of member of the sangguniang
panlungsod or
sangguniang bayan must be at least eighteen (18) years of age on
election day.
5. Candidates for the position of punong barangay or member of
the sangguniang barangay must be at least eighteen (18) years of
age on election day.
6. Candidates for the sangguniang kabataan must be at least
fifteen (15) years of age, but not more than twenty-one (21) years
of age on election day.” (Local Government Code (R.A. No. 7160),
Section 39.)
f. Members of the Board of Election Inspectors
“No person shall be appointed Chairman, member, or substitute
member of the Board of Election Inspectors unless he is of good
moral character and irreproachable reputation, a registered voter
of
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the city or municipality, has never been convicted of any
election offense or of any other crime punishable by more than six
months of imprisonment, or if there is a pending information
against him for any election offense. He must be able to speak and
write English or the local dialect.” (Omnibus Election Code,
Section 166)
SUMMARY OF QUALIFICATIONS
President and VP Senators Members of the
House of Representatives
Members of the Supreme Court, lower collegiate courts
Citizenship Natural-born Natural-born Natural-born Natural-born
Age 40 years 35 years 25 years 40 years Residency Philippines, at
least 10
year Philippines, at least 2 year
District, at least 1 year -
Right to suffrage Resident voter Resident voter Resident voter -
Educational or professional background
Read and write Read and write Read and write 15 years or more,
judge or engaged in practice of law in the Philippines
Others Person of proven competence, integrity, probity and
independence
CSC Chair and
Commissioners COMELEC Chair and Commissioners
COA Chair and Commissioners
CHR Chair and Commissioners
Ombudsman and his Deputies
Composition Chairman + 2 Com
Chairman + 6 Com
Chairman + 2 Com
Chairman + 4 Com
Citizenship Natural-born Natural-born Natural-born Natural-born
Natural-born Age 35 years 35 years 35 years
-
40 years
Educational or professional background
Proven capacity for public administration
College degree holder BUT majority, including the Chair, lawyers
in practice of law for at least 10 years
CPA not less than 10 years of auditing experience or lawyers in
practice of law for 10 years No time all the same profession
Majority must be lawyers
Lawyers in practice for at least 10 years Recognized probity and
independence
Disqualification Candidates for any elective position in
election immediately preceding their appointment
Term of office and other qualify to be provided by law
Department
Secretary Presiding Justice and CA Assoc Justices
RTC Judge MTC, MCTC, MeTC Judge
Citizenship Citizen of the Philippines
Natural born Natural born Natural born
Age 25 years of age 40 years of age 35 years of age 30 years of
age Educational or Professional background
- At least 15 years judge or practicing law in the
Philippines
At least 10 years judge or practicing law in the Philippines
At least 5 years judge or practicing law in the Philippines
Gov & VGov,
Member of Mayor & VMayor of Independent
Member of Sangguniang
Punong Barangay or Member of
Member of Sangguniang
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Sangguniang Panlalawigan,Mayor, VMayor, Member of Sangguniang
Panglungsod of Highly Urbanized Cities
Component Cities, Component Cities, Municipalities
Panglungsod or Sangguniang Bayan
Sangguniang Barangay
Kabataan
Citizenship Citizen of the Philippines
Citizen of the Philippines
Citizen of the Philippines
Citizen of the Philippines
Citizen of the Philippines
Right of Suffrage Registered Voter Registered Voter Registered
Voter Registered Voter Registered Voter Age 23 years 21 years 18
years 18 years At least 15 but
not more than 21 Educational or Professional background
Read and write Filipino or any local language or dialect
Read and write Filipino or any local language or dialect
Read and write Filipino or any local language or dialect
Read and write Filipino or any local language or dialect
Read and write Filipino or any local language or dialect
6. Disqualifications to hold public office
a. Causes of disqualification to hold public office 1. Mental or
physical incapacity
a. Law requires a public officer to be in possession of his
mental faculties.
b. Blindness may not necessarily disqualify a person from public
office if he possesses the other qualifications imposed by law.
2. Misconduct or crime
a. Persons convicted of crimes involving moral turpitude are
usually disqualified from holding public office.
b. The wording or the applicable constitutional or statutory
provisions determines whether the ineligibility to hold office
because of a crime results from mere commission or arises only
after prosecution and conviction.
c. A violation of a municipal ordinance to qualify as a “crime”
must involve at
least a certain degree of evil doing, immoral conduct,
corruption, malice, or want of principles reasonably related to the
requirements of the public office.
3. Impeachment
a. Persons subject to impeachment: 1. President 2.
Vice-President 3. Members of the Supreme Court 4. Members of
Constitutional Commission 5. Ombudsman
b. Judgment in impeachment cases is limited to removal from
office and disqualification to hold any office under the Republic
of the Philippines but the convicted person shall still be subject
to prosecution, trial and punishment according to law.
(Constitution, Article XI, Section 3(7).
Estrada vs. Desierto (356 SCRA 108)
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Section 3(7), Article XI of the 1987 Constitution does not
require that petitioner should first be convicted in the
impeachment proceedings before he can face prosecution for the
criminal offenses filed before the Office of the Ombudsman.
Instead, the said constitutional provision provides for two things:
first, judgment in impeachment is limited only to removal from
office and disqualification from holding any other office in the
government; and second, the party convicted may still be held
liable under prosecution and punishment according to law. Further,
the impeachment proceedings have become moot and academic due to
petitioner's resignation. The impeachment court is now functus
officio. It is unreasonable to demand that petitioner should first
be impeached before criminal cases may be filed against him because
the same would result to a perpetual bar from prosecution.
4. Removal or suspension from office
a. Removal from office bars the removed officer from being
elected or appointed to fill the vacancy for the unexpired term but
it does not disqualify him to take some other office or be elected
or appointed to a new term of the same office.
5. Previous tenure of office
a. President – is absolutely disqualified for any re-election
regardless of the length of his service. A person who succeeded as
President is disqualified for re-election if he has served for more
than 4 years. (Constitution, Article VII, Section 4)
b. Chairman and Commissioners of the Civil Service Commission,
Commission on Elections, and Commission on Audit – are appointed by
the President without reappointment.
c. Ombudsman and his Deputies – are not qualified to run for any
office in the election immediately succeeding their cessation from
office.
6. Consecutive terms
a. Vice-President – shall not serve for more than 2 successive
terms. Voluntary renunciation of the office shall not be considered
an interruption of the service for the full term for which he was
elected. (Constitution, Article VII, Section 4)
b. Senator – shall not serve for more than 3 consecutive terms
(Constitution, Article VI, Section4)
c. Members of the House of Representatives – shall not serve for
more than 3 consecutive terms. (Constitution, Article VI, Section
7)
d. Elective officials (except barangay officials) – shall not
serve for more than 3 consecutive terms (Constitution, Article X,
Section 8)
7. Holding more than one office
a. No constitutional right to holding incompatible offices. b. A
person who accepts and qualifies for a second and incompatible
office is
deemed to vacate, or, by implication, to resign from the first
office.
8. Relationship with the appointing power
“The spouse and relatives by consanguinity or affinity within
the fourth civil degree of the President shall not, during his
tenure, be appointed as members of the Constitutional Commissions,
or the
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Office of the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus of offices, including government-owned
or controlled corporations and their subsidiaries.” (Constitution,
Article VII, Section 13)
a. Appointments should be based solely on merit and fitness,
uninfluenced by any personal or filial consideration.
b. Restriction is not applicable to: 1. Members of family who
contracted marriage with anyone in position
already 2. Persons employed in a confidential capacity 3.
Teachers 4. Physicians 5. Members of the Armed Forces of the
Philippines
9. Office newly created or the emoluments of which have been
increased
Senators and members of the House of Representatives are
prohibited from being appointed to any office which may have been
created or the emoluments thereof increased during the term for
which they were elected. (Constitution, Article VI, Section 13)
a. “Emolument” does not refer to the fixed salary alone but
includes such fees and compensations which the incumbent is
entitled to receive by law.
10. Being an elective official
“No elective official shall be eligible for appointment or
designation in any capacity to any public office or position during
his tenure.” (Constitution, Article IX-B, Section 7)
a. Prohibition seeks to minimize the “spoils system”
b. The disqualification exists only during the tenure in office
(versus term of office) of the elective official.
c. Elective official must forfeit his seat if he decides to
accept appointment in
another public office or position during his term.
11. Having been a candidate for any elective position
“No candidate who has lost in any election, shall within one
year after such election, be appointed to any office in the
Government or any government-owned or controlled corporations or in
any of its subsidiaries.” (Constitution, Article IX-B, Section
6)
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Members of the Civil Service Commission, Commission on
Elections, and Commission on Audit are also prohibited by the
Constitution to become candidates for any elective position in the
elections immediately preceding their appointment. (Constitution,
Article IX-B, Section 1(1); Article IX-C, Section 1(1), Article
IX-D, Section 1(1))
12. Under the Local Government Code a. The following are
disqualified from running for any elective local position:
1. Those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by 1 year or more of
imprisonment, within 2 years after serving sentence;
2. Those removed from office as a result of an administrative
case; 3. Those convicted by final judgment for violating the oath
of allegiance to
the Republic; 4. Those with dual citizenship; 5. Fugitive from
justice in criminal or non-political cases here or abroad; 6.
Permanent residents in a foreign country or those who have
acquired
the right to reside abroad and continue to avail of the same
right after the effectivity of this Code; and
7. Insane or feeble-minded.
b. With respect to the appointment of elective and appointive
local officials and candidates who lost in an election, the Code
provides that they cannot, within 1 year after such election, be
appointed to any office in the government or government-owned or
controlled corporations or in any of its subsidiaries (except
losing candidates in barangay elections).
“(a) No elective or appointive local 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, no elective or appointive
local official shall hold any other office or employment in the
government or any subdivision, agency or instrumentality thereof,
including government-owned or -controlled corporations or their
subsidiaries. (b) Except for losing candidates in barangay
elections, no candidate who lost in any election shall, within one
(1) year after such election, be appointed to any office in the
government or any government-owned or -controlled corporations or
in any of their subsidiaries.” (Republic Act No. 7160, Section
94)
Part 3. Acquisition of Right or Title to Office
A. In General 1. Modes of commencing official relations
a. The selection of persons for public office can only be
obtained in the manner prescribed by the Constitution or by law,
generally through either: 1. Election 2. Appointment
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2. Meaning of “Appointment”
a. It is the act of designation by the executive officer, board,
or body to whom that power has been delegated, of the individual
who is to exercise the powers and functions of a given office
(versus being elected in office by popular vote). (Borromeo v.
Mariano, 41 Phil. 322 (1921)
b. It is equivalent to filling a vacancy in an office. (Conde v.
National Tobacco Corp., 15 SCRA 118 (1961)
c. It is the nomination or designation of an individual to an
office. (Borromeo v.
Mariano, 41 Phil. 322 (1921)
3. Where appointing power resides a. Inherently belongs to the
people
1. The selection of persons for public office is primarily a
prerogative of the people but they cannot always be called upon to
act immediately when the selection is necessary. Thus, it can be
said that the power of the people to select has been conferred by
them to the Constitution or laws.
b. Entrusted to designated elected and appointed public
officials
c. The appointment of public officials is generally belongs to
the executive department, but appointments may also be made by the
Congress or the courts to the extent that it is incident to the
discharge of their respective functions. (Government v. Springer,
50 Phil. 259 (1927)
d. The power to appoint carries with it the power or remove or
discipline. (Aguirre, Jr. v.
De Castro, 321 SCRA 95 (1999); Bagatsing v. Herrera, 65 SCRA 434
(1975); Lacson v. Romero, 84 Phil. 740 (1949)
4. Appointing power generally regarded as an executive
function
a. Where power exercised by executive department 1. The power of
appointment is intrinsically an executive function. Under the
principle of separation of powers, the creation of a public
office is a legislative function; the appointment of persons to
office is an executive function; and the legislature may confer
this appointing power on the President or another public officer or
board within the executive department.
b. Where power exercised by other departments 1. Appointments to
office by one department do not involve an encroachment
upon the function of any other branch.
5. Power to appoint discretionary a. Power of courts to review
appointment
1. Unless gravely abused, the courts will not review the
appointment or reappointment of a public officer. It cannot be
subject to a write of mandamus to compel the exercise of such
discretion.
2. The appointing power has the prerogative to select, according
to his judgment, persons whom he thinks is best qualified among
those who have the necessary qualifications and eligibilities,
provided, however, that it be exercised in good faith and not in a
malicious, harsh, oppressive, vindictive or wanton manner or
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out of malice or spite. (Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court, 140 SCRA 22 (1985)
b. Power of the Civil Service Commission to revoke
appointment
1. The Commission has no authority to revoke an appointment on
the ground that another person is more qualified for a particular
position; neither does it have authority to direct the appointment
of a substitute of its choice or a successful protestant.
2. The Commission has the power to recall or revoke an
appointment initially approved if such appointment is void from the
beginning due to fraud on the part of the appointee or because it
was issued in violation of law. (Debulgado v. Civil Service
Commission, 236 SCRA 184 (1994)
Concepcion v. Paredes (42 Phil. 599 [1921]) The Philippine
legislature has no power to enact laws which expressly or impliedly
diminish the authority conferred by the Act of Congress on the
Chief Executive.
Reyes v. Abeleda (22 SCRA 825 [1968]) A person next-in-rank,
competent and qualified to hold the position, is entitled to a
vacancy occurring in any competitive or classified position in the
government. If there are 2 or more persons under equal
circumstances, seniority must be given preference.
Cuyugkeng v. Cruz (108 Phil. 1147 [1960]) JC questioned the
appointment of PC as members of the Board of medical Examiners
since his name was not included in the list made by the Executive
Council of the Philippine Medical Association pursuant to Section
13 of Republic Act No. 2382. The appointment of PC was valid but
the members of the Supreme Court had three views. The first view
believes that Section 14 is unconstitutional because it would
constitute a reduction and impairment of the appointing power
vested in the President by the Constitution. Moreover, inclusion in
the list is not one of the requirements in Section 14. The second
view is that Section 13 is unconstitutional but is merely directory
in nature. Third view says that it is not necessary to pass upon
the constitutionality of Section 13 or to determine whether it is
merely directory or mandatory. The appointment is sanctioned by
Section 15, for in cases of conflicts between 2 provisions of the
same statute, the latter one prevails.
6. Power may be absolute or conditional a. Absolute – where the
choice of the appointing authority is conclusive if it falls
upon
an eligible person. No further consent or approval is
necessary.
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b. Conditional – where assent or approval by some other officer
or body, such as the
Commission on Appointments, is necessary to complete the
appointment.
7. Restrictions on the power to appoint a. Generally
1. Persons to be appointed to a public office should possess the
required qualifications and be selected solely with a view to the
public welfare.
b. Under the Constitution 1. Appointments by the President are
subject to the following Constitutional
provisions: a. “The spouse and relatives by consanguinity of
affinity within the fourth civil
degree of the President shall not, during his tenure be
appointed as Members of the Constitutional Commissions, or the
Office of the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including government-owned
or controlled corporations and their subsidiaries.” (Constitution,
Article VII, Section 13)
b. “Two months immediately before the next presidential
elections up to the end of his term, a President or Acting
President shall not make appointments, except temporary
appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety.”
(Constitution, Article VII, Section 15)
c. “The Congress, may, by law, vest the appointment of other
officers lower in
rank in the President alone, in the court, or in the heads of
departments, agencies, commissions or boards.” (Constitution,
Article VII, Section 16)
d. “The Supreme Court shall have the following powers: x x x
Appoint all
officials and employees of the judiciary in accordance with the
Civil Service Law.” (Constitution, Article VIII, Section 5(6))
e. “The Members of the Supreme Court and judges of lower court
shall be
appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for every
vacancy. Such appointments need no confirmation. For the lower
courts, the President shall issue the appointments within ninety
days from the submission of the list.” (Constitution, Article VIII,
Section 9)
f. “The Constitutional Commissions shall appoint their officials
and employees
in accordance with law.” (Constitution, Article IX-A, Section
4)
g. The Members of the Civil Service Commission, Commission on
Elections, and Commission on Audit shall be appointed “without
reappointment x x x. Appointment to any vacancy shall be only for
the unexpired term of the predecessor. In no case shall any Member
be appointed or designated in a temporary or acting capacity.”
(Constitution, Article IX-B, Section 1(2); Article IX-C, Section
1(2); Article IX-D, Section 1(2).
h. “No candidate who has lost in any election shall, within one
year after such
election, be appointed to any office in the government or any
government-
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owned or controlled corporations or in any of their
subsidiaries.” (Constitution, Article IX-B, Section 6)
i. “The officials and employees of the Office of the Ombudsman,
other than
the Deputies, shall be appointed by the Ombudsman according to
the Civil Service Law.” (Constitution, Article XI, Section 6)
j. “The Ombudsman and his Deputies shall be appointed by the
President
from a list of at least six nominees prepared by the Judicial
and Bar Council, and from a list of three nominees for every
vacancy thereafter. Such appointments shall require no
confirmation. All vacancies shall be filled within three months
after they occur.” (Constitution, Article XI, Section 9)
c. Under existing laws
1. Restrictions on the power to appoint are normally found in
the provisions prescribing the qualifications and disqualifications
to a public office. Unless prohibited by the Constitution, Congress
may add qualifications or disqualifications to those provided in
the Constitution but may not supersede them.
8. When appointment deemed complete
a. Not subject to confirmation 1. When the power of appointment
is absolute, the formal evidence of appointment
(i.e., the commission) may issue at once.
b. Subject to confirmation 1. Where the confirmation of some
other officer of body is required, the
commission can be issued only when confirmation is obtained.
c. Approval by the Civil Service Commission 1. Appointments to
positions in the Civil Service must be submitted to the
Commissioner for approval. The attestation of the CSC merely
assures the eligibility of the appointee and is actually not
necessary to complete the appointment.
d. Effects of completed appointment 1. Appointing officer’s
power over the office is terminated in all cases where by law
the officer is not removable by him. The right to the office is
in the appointee. Appointment to a position already filled cannot
be made.
9. Acceptance of appointment precedes acceptance by the
appointee and is entirely
distinct from it a. Not necessary to completion or validity of
appointment
1. When the appointing officer acts within his authority, the
appointment is complete whether it is accepted or refused.
b. Necessary to possession of office 1. Acceptance is not
necessary to give validity to an appointment but it is
necessary to enable the appointee to have full possession,
enjoyment, and responsibility of an office. (Magana v.
Auditor-General, 107 Phil. 900 (1960)
10. Form of acceptance
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a. Express – may be done verbally, in writing, by taking the
oath of office, or posting of bond.
b. Implied – when, without formal acceptance, the appointee
exercises or performs the duties and functions of an office.
11. Obligation of elected or appointed individual to accept
office
a. Generally not subject to compulsion 1. A person may not be
compelled to accept a public office.
2. Exceptions:
a. “The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State
and, in the fulfillment thereof, all citizens may be required,
under conditions provided by law, to render personal military or
civil service.” (Constitution, Article II, Section 4)
b. “The penalty of arresto mayor or a fine not exceeding 1,000
pesos, or both, shall be imposed upon any person who, having been
elected by popular election to a public office, shall refuse
without legal motive to be sworn in or to discharge the duties of
said office.” (Revised Penal Code, Article 234)
c. Male inhabitants of a certain age may be required to assist
in preserving the
peace and order of the community. (U.S. v. Pompeya, 31 Phil. 245
(1915))
b. Obligation in the nature of a social duty 1. Every person who
enters into civil society must have a social duty to share in
the
public burdens by accepting and performing the duties of public
offices to which he may be lawfully chosen.
12. Necessity of written appointment
a. View that appointment should be evidenced by a writing 1. The
appointment must be evidenced in a way that the public may know
when
and in what manner the duty has been performed because
appointment to office affects the public and not merely private
rights.
b. Contrary view 1. The right of the appointee to be inducted
depends upon the fact of
appointment, and not on his ability to establish the fact of
appointment by production of the written appointment where the law
does not provide a specific manner in which the appointment shall
be made.
Venecia v. Peralta (8 SCRA 692 [1963]) Venecia was appointed
acting chairman of NAWASA in 1961 by the President. He, however,
said that he was appointed ad interim, and took his oath of office
as such. The Commission on Appointments confirmed the appointment.
Less than a year after, Peralta was appointed ad interim by the new
President to the same position. Venecia’s oath and confirmation did
not imply a prior ad interim appointment. The only reliable
evidence on the matter is that Venecia was appointed only as acting
Chairman, and this could not ripen into a permanent one even with
the confirmation by the Commission on Appointments
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because there was no valid nomination or recess of appointment.
It was incumbent upon Venecia to prove that he was indeed appointed
ad interim, and the better rule requires some kind of written
memorial that could render title to public office indubitable.
13. Revocation of appointment
a. Where appointment final and complete 1. General rule is that
once appointment to an office is made and complete, it is
not subject to reconsideration or revocation, except if the
officer is removable at the will of the appointing power.
b. Where appointee has assumed position 1. The moment an
appointee assumes a position in the civil service under a
completed and approved appointment, he acquires a legal, not
merely an equitable right, which is protected by statute and the
Constitution and can only be revoked or removed for cause and with
previous notice and hearing.
c. Where protestant more qualified than appointee 1. As long as
the appointee possesses the minimum required qualifications, he
cannot be removed even if protestant is more qualified than the
first appointee.
B. Appointments by the President 1. Power of appointment of the
President
a. “The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forced from the rank of colonel or naval
captain and other officers whose appointments are vested in him in
this Constitution. He shall also appoint other officers of the
Government whose appointments are not otherwise provided by law,
and those whom he may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers lower in rank
in the President alone, in the courts, in the heads of departments,
agencies, commissions, or boards. The President shall have the
power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments
or until the next adjournment of the Congress.” (Constitution,
Article VII, Section 16)
b. Four groups of officials whom the President is authorized to
appoint: 1. Heads of executive departments, ambassadors, other
public ministers and
consuls, officers of the armed forces from the rank of colonel
or naval captain, regular members of the JBC, SC and judges,
Chairman and Commissioners of the COMELEC and Commission on Audit,
Members of the regional consultative commission
2. All other officers whose appointments are not otherwise
provided by law.
3. Those whom the President may be authorized by law to
appoint.
4. Other officers lower in rank whose appointments the Congress,
by law, vests in the President alone.
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2. Confirmation of appointments by Commission on Appointments a.
Only the officers in the first group above require the consent or
confirmation of the
Commission on Appointments. Congress cannot, by law, require
confirmation of appointments of other officers.
b. The President appoints the members of the SC, judges of the
lower courts including the Sandiganbayan, the Tanodbayan and his
deputies from a list made by the Judicial and Bar Council. These do
not require confirmation of the Commission on Appointments. Same
rule applies if the Vice-President is appointed to a cabinet
position.
c. The Administrative Code also vests in the President the power
to appoint the
Chairman and members of the Commission on Human Rights, which is
likewise not subject to confirmation of the Commission on
Appointments. (Administrative Code, Book V, Chapter 13, Title II,
Subtitle A, Section 4; Bautista v. Salonga, 172 SCRA 160
(1989))
3. Appointments by other officials
a. Article VII, Section 16 of the Constitution vests in the
courts, heads of departments, agencies, commissions, or boards the
power to appoint officers lower in rank in their respective
offices. “Lower in rank” refers to officers subordinate to those
enumerated officers upon whom the power of appointment may be
vested.
4. Kinds of Presidential appointments
a. Regular 1. Those appointments made while Congress is in
session. 2. These are actually mere nominations which are subject
to confirmation by the
Commission on Appointments.
b. Ad interim 1. Those made while Congress is not in session or
is in recess.
c. Permanent
1. Those which subsist until lawfully terminated.
d. Temporary or Acting 1. Those which last until a permanent
appointment is made.
Appointments which are required to be submitted to the
Commission on Appointments are either regular or ad interim and are
permanent in nature.
5. Ad interim appointments
a. These are appointments made by the President while Congress
is in recess, thus, the Commission on Appointments may only
deliberate upon such appointments when Congress goes into
session.
b. The President is usually aided by the Commission on
Appointments’ advice when it comes to appointments. In the case of
ad interim appointments, however, the President acts alone and the
system of checks and balances vital to our system of government is
not in place.
c. Ad interim appointments, however, are necessary due to the
existence of situations
where there is a clear and present urgency caused by an
impending obstruction or
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paralysis of the functions assigned to office to be filled if no
immediate appointment is made.
d. An ad interim appointment is permanent in nature and not a
mere temporary or
acting appointment even if it is subject to confirmation by the
Commission on Appointments. However, it may be recalled or revoked
by the President before confirmation.
Rosales v. Yenko (15 SCRA 766 [1965]) R was appointed ad interim
Chairman of the Board of Examiners, but his appointment papers were
not released to him. The Civil Service Commission informed him that
his appointment had been recalled and the President instead
appointed Y as acting Chairman. The ad interim appointment of R is
invalid, illegal and does not subsist. Since his appointment was
never released, it is incomplete and there was in fact and in law
no ad interim appointment that could be validly transmitted to and
acted upon by the Commission on Appointments.
6. Temporary or acting appointments a. Generally, the power to
appoint vested in the President includes temporary or acting
appointments, unless otherwise provided by law. (Cabiling v.
Pabualan, 14 SCRA 274 (1965))
b. Since acting appointments are temporary, they cannot be
validly confirmed by the Commission on Appointments because
confirmation presupposes a valid nomination of ad interim
appointment. (Valencia v. Peralta, 8 SCRA 692 (1963))
c. A person appointed in an acting capacity has no personality
to bring a quo warranto
action against the permanent appointee to the position as he is
not entitled to the office. (Sevilla v. Court of Appeals, 209 SCRA
637 (1992); Rules of Court, Rule 66, Section 6)
d. A person appointed in an acting capacity has no fixed tenure
of office and his
appointment can be terminated at the pleasure of the appointing
power. However, such appointments cannot be used to circumvent the
security of tenure principle in the Constitution and Civil Service
Law. (Civil Service Commission v. Darangina, 513 SCRA 648 (2007);
Gayatao v. Civil Service Commission, 210 SCRA 183 (1992))
e. An unqualified person cannot be appointed even in an acting
capacity. (Ignacio v. Banate, Jr., 153 SCRA 546 (1987))
7. Designations
a. Designation is merely the imposition of new or additional
duties upon an officer to be performed by him in a special manner
while performing the functions of his permanent office.
b. It presupposes that the officer is already in service by
virtue of an earlier appointment. It is revocable and temporary in
character and does not confer security of tenure.
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c. It does not entitle the officer designated to additional
benefits or the right to claim salary attached to the position.
Neither can the Commission on Appointments validly act upon it, as
there is no appointment issued. (Dimaandal v. Commission on Audit,
291 SCRA 322 (1998)
8. Steps in the appointing process
a. Nomination 1. It is the exclusive prerogative of the
President and Congress may only limit such
prerogative in cases where concurrence of the Commission on
Appointments is needed and where legislature is vested with the
power to prescribe the qualifications to a given appointive office.
(Manalang v. Quitoriano, 94 Phil. 903 (1954))
Rafael v. EACIB (21 SCRA 336 [1967]) Republic Act No. 3137
created the Embroidery and Apparel Control and Inspection Board
(EACIB), Section 2 of which provides the composition of the Board.
The validity of the Act was attacked on the ground that while
Congress may create an office, it cannot specify who the President
can appoint therein. Section 2 of Republic Act No. 3137 does not
deprive the President of his power to appoint. Where no
appointments are necessary, and officials occupy another position
in an ex-oficio capacity, the President is not deprived of his
constitutional power to make appointments even if Congress
prescribes which officials should occupy the said ex-oficio
positions.
b. Confirmation 1. The power to confirm or reject certain
appointments belongs to Congress
through the Commission on Appointments since it is a check on
the executive.
2. A confirmation cannot be reconsidered after the President has
been notified of the confirmation and has completed the appointment
by issuing a commission the appointee even if the rules of the
confirming body provide for reconsideration.
c. Issuance of commission 1. “Commission” is the written
authority from a competent source given to the
officer as his warrant for the exercise of the powers and duties
of the office. It is the written evidence of the appointment.
2. When a person is elected to office, his right as established
as a result of the election and does not depend upon the issuance
of a commission. Issuance of a commission to an elected officer is
merely a ministerial act and not a part of the act of appointment.
Instead, the elected officer is entitled to a certificate of
election.
C. Appointments in the Civil Service
1. The Civil Service System a. Scope - all branches,
subdivisions, instrumentalities and agencies of the
government including GOCCs with original charter. This covers
the administrative
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personnel of the entire government system, both national and
local, including the military.
b. Purpose – to enable the national and local government and all
its instrumentalities and agencies to render more efficient
services to the public by enabling them to obtain efficient public
servants. The Civil Service system seeks to establish a merit
system of fitness and efficiency as the basis of appointments.
2. Classifications of positions in the Civil Service
a. Career Service 1. Characteristics of career service:
a. Entrance is based on merit and fitness which is determined by
competitive examinations or are based on highly technical
qualifications
b. Security of tenure
c. Opportunity for advancement to higher career positions
2. Career service includes: a. Open career positions for
appointments requiring prior qualification in an
appropriate examination;
b. Closed career positions which are scientific or highly
technical in nature. These include faculty and academic staff of
state colleges and universities, and scientific and technical
positions in scientific or research institutions which shall
establish and maintain their own merit system
c. Positions in the Career Executive Service (i.e.,
Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau Director, Chief of
Department Service, and other officers of equivalent rank as may be
identified by the Career Executive Service Board and appointed by
the President);
d. Career officers other than those in the Career Executive
Service who are
appointed by the President (i.e., Foreign Service Officers in
the Department of Foreign Affairs);
e. Commissioned officers and enlisted men of the Armed
Forces
f. Personnel of government-owned and controlled corporations
whether
performing governmental or proprietary functions who do not fall
under non-career services; and
g. Permanent laborer, whether skilled, semi-skilled, or
unskilled.
b. Non-Career Service
1. Characteristics of non-career service: a. Entrance on bases
other than those of the usual test of merit and fitness
b. Tenure which is limited to a period specified by law or
coterminous with that
of the appointing authority or subject to his pleasure or
limited to the duration of a particular project
2. Non-career service includes:
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a. Elective officials and their personal or confidential
staffs
b. Department heads and other officers of cabinet rank and their
staffs
c. Chairmen and members of commissions and boards with fixed
terms of office and their staffs
d. Contractual personnel (i.e., whose employment in the
government is in
accordance with a special contract to undertake a specific work
or job requiring special or technical skills not available in the
employing agency, within a specific period and shall not exceed 1
year, and performs with minimum direction and supervision)
e. Emergency and seasonal personnel (Presidential Decree No. 807
(1975),
Sections 5 and 6; Executive Order No, 292, Book V, Title I,
Sections 7 and 9)
f. Casual employees (employment is not permanent but occasional,
unpredictable, sporadic and brief in nature) (Chua v. Civil Service
Commission, 206 SCRA 65 (1992))
3. Classes of positions in the career service
a. Three major levels of positions in the career service
appointment requiring examinations: 1. Clerical, trades, crafts,
and custodial service positions
2. Professional, technical, and scientific positions
3. Career Executive Service (officials of this level have no
security of tenure and
may be removed anytime unless they have secured an eligibility
from the Career Executive Service Board (CESB) and have been issued
the Career Executive Service Officer (CESO) rank by the President
upon recommendation of the CESB)
b. Requirements of competitive examinations
1. Entrance to the first two levels are through competitive
examinations.
2. Entrance to the third level is prescribed by the CESB and
does not require previous qualifications to the lower level.
3. For promotion to a higher position in one or more related
occupational groups,
no examination is required within the same level. However, the
candidate for promotion must have previously passed the examination
for the level. (Presidential Decree No. 807 (1975), Section 7;
Executive Order No, 292, Book V, Title I, Section 8)
4. Constitutional classification
a. Competitive - Those whose appointments are made according to
merit and fitness as determined by competitive examinations.
b. Non-competitive – Those whose appointments do not take into
account merit and fitness as determined by competitive
examinations. These include positions which are policy-determining,
primarily confidential, or highly technical in nature.
(Constitution, Article XI-B, Section 2(2))
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5. Determination of merit and fitness by competitive
examinations
a. Generally, the selection of any appointee to any government
position shall be made only according to merit and fitness to be
determined, as far as practicable, by competitive examinations to
perform duties and assume the responsibility of the position,
without regard to any other consideration such as sex, color,
social status, religion, or political affiliation.
b. In order to be competitive, the examination must be given
under an objective standard of grading and must conform to measures
and standards.
c. Denominating an examination as competitive does not make it
competitive. The
examination must be competitive in substance, not merely in
form.
d. Oral examinations may be deemed competitive where tests of
manual or professional skill are necessary.
6. Exemption from rule of non-competitive positions
a. Though policy-determining, primarily confidential and highly
technical positions are exempt from competitive examinations and
still enjoy the operation of the principle: “no officer or employee
in the Civil Service shall be removed or suspended except for cause
provided by law”.
b. Whether an administrative position is primarily confidential,
policy-determining, or highly technical is the nature of the
functions attached to the position.
c. Policy determining position
1. Its occupant is vested with the power of formulating policies
for the government or any of its agencies, subdivisions or
instrumentalities.
d. Primarily confidential position 1. Its occupant enjoys more
than the ordinary confidence in his aptitude of the
appointing power but bears primarily such close intimacy which
insures freedom of intercourse without embarrassment of freedom
from misgiving of betrayal of personal trust on confidential
matters of the State. More than ordinary confidence is
required.
2. A position may be considered primarily confidential when the
President, upon recommendation of the Civil Service Commissioner,
has declared it to be. (Salazar v. Mathay, 73 SCRA 275 (1976))
3. It is the nature of the position which finally determines
whether a position is
primarily confidential.
4. Primarily confidential appointee is not subject to removal at
the pleasure of the appointing authority. Instead, termination of
such an appointee’s official relation can be justified on the
ground of loss of confidence, which involves no removal but merely
the expiration of the term of office. (Hernandez v. Villegas, 14
SCRA 544 (1965))
e. Highly-technical position – Its occupant is required to
posses skills or training in the
supreme or superior degree.
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7. Qualification standards in the Civil Service a. These are the
minimum requirements for a class of position in terms of
education,
training, experience, civil service eligibility, physical
fitness, and other qualities required for successful performance.
The degree of qualifications is determined by the appointing
authority on the basis of qualification standards for the
particular position.
b. Use of qualification standards
1. As basis for civil service examinations for positions in the
career service
2. As guides in the appointment and other personnel actions in
the adjudication of protested appointments
3. In determining training needs
4. As aid in the inspection and audit of the agencies’ personnel
work programs
(Presidential Decree No. 807, Section 20)
c. Establishment, administration and maintenance of
qualification standards 1. The department or agency, with the
assistance and approval of the Civil Service
Commission and in consultation with the Wage and Position
Classification Office, is responsible for the establishment,
administration and maintenance of qualification standards.
d. Approval of qualification standards
1. Approval of the Civil Service Commission is required by law
because it is the government’s central personnel agency entrusted
with the enforcement of laws relative to the selection, promotion,
and discipline of civil servants.
e. Offsetting of deficiencies
1. When necessary, education, experience or training may be used
interchangeably to offset deficiencies, except the required
eligibility. The decision as to when the conditions give rise to
necessity to interchange education with experience or training and
vice-versa rests upon the sound discretion of the appointing
authority.
8. Kinds of appointment in the career service
a. Permanent 1. One which is issued to a person who meets all
the requirements for the position
including the approp