The Law of Public Officers Q&A

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THE LAW OF PUBLIC OFFICERS

Define Appointment. Discuss its nature.

Held: An appointment to a public office is the

unequivocal act of designating or selecting by one

having the authority therefor of an individual to

discharge and perform the duties and functions of an

office or trust. The appointment is deemed complete

once the last act required of the appointing authority

has been complied with and its acceptance thereafter

by the appointee in order to render it effective.

Appointment necessarily calls for an exercise of

discretion on the part of the appointing authority.

In Pamantasan ng Lungsod ng Maynila v. Intermediate

Appellate Court, reiterated in Flores v. Drilon, this

Court has held:

The power to appoint is, in essence, discretionary.

The appointing power has the right of choice which he

may exercise freely according to his judgment,

deciding for himself who is best qualified among thosewho have the necessary qualifications and eligibilities.

It is a prerogative of the appointing power x x x.

Indeed, it may rightly be said that the right of choice is

the heart of the power to appoint. In the exercise of

the power of appointment, discretion is an integral

thereof. (Bermudez v. Torres, 311 SCRA 733,

Aug. 4, 1999, 3rdDiv. [Vitug])

May the Civil Service Commission, or the

Supreme Court, validly nullify an appointment on

the ground that somebody else is better

qualified?

Held: The head of an agency who is the appointing

power is the one most knowledgeable to decide who

can best perform the functions of the office.

Appointment is an essentially discretionary power and

must be performed by the officer vested with such

power according to his best lights, the only condition

being that the appointee should possess the

qualifications required by law. If he does, then the

appointment cannot be faulted on the ground that

there are others better qualified who should have been

preferred. Indeed, this is a prerogative of theappointing authority which he alone can decide. The

choice of an appointee from among those who possess

the required qualifications is a political and

administrative decision calling for considerations of

wisdom, convenience, utility and the interests of the

service which can best be made by the head of the

office concerned, the person most familiar with the

organizational structure and environmental

circumstances within which the appointee must

function.

As long as the appointee is qualified the Civil ServiceCommission has no choice but to attest to and respect

the appointment even if it be proved that there are

others with superior credentials. The law limits the

Commissions authority only to whether or not the

appointees possess the legal qualifications and the

appropriate civil service eligibility, nothing else. If

they do then the appointments are approved because

the Commission cannot exceed its power by

substituting its will for that of the appointing

authority. Neither can we. (Rimonte v. CSC, 244

SCRA 504-505, May 29, 1995, En Banc [Bellosillo,

J.])

Does the next-in-rank rule import any

mandatory or peremptory requirement that the

person next-in-rank must be appointed to the

vacancy?

Held: The next-in-rank rule is not absolute; it only

applies in cases of promotion, a process which denotesa scalar ascent of an officer to another position higher

either in rank or salary. And even in promotions, it

can be disregarded for sound reasons made known to

the next-in-rank, as the concept does not import any

mandatory or peremptory requirement that the person

next-in-rank must be appointed to the vacancy. The

appointing authority, under the Civil Service Law, is

allowed to fill vacancies by promotion, transfer of

present employees, reinstatement, reemployment, and

appointment of outsiders who have appropriate civil

service eligibility, not necessarily in that order. There

is no legal fiat that a vacancy must be filled only bypromotion; the appointing authority is given wide

discretion to fill a vacancy from among the several

alternatives provided by law.

What the Civil Service Law provides is that if a vacancy

is filled by promotion, the person holding the position

next in rank thereto shall be considered for

promotion.

In Taduran v. Civil Service Commission, the Court

construed that phrase to mean that the person next-

in-rank would be among the first to be considered for

the vacancy, if qualified. In Santiago, Jr. v. CivilService Commission, the Court elaborated the import

of the rule in the following manner:

One who is next-in-rank is entitled to preferential

consideration for promotion to the higher vacancy but

it does not necessarily follow that he and no one else

can be appointed. The rule neither grants a vested

right to the holder nor imposes a ministerial duty on

the appointing authority to promote such person to the

next higher position x x x(Abila v. CSC, 198 SCRA

102, June 3, 1991, En Banc [Feliciano])

Can a person who lacks the necessary

qualifications for a public position be appointed

to it in a permanent capacity? Illustrative case.

Held: At the outset, it must be stressed

that the position of Ministry Legal Counsel-CESO IV is

embraced in the Career Executive Service. X x x

In the case at bar, there is no question that

private respondent does not have the required CES

eligibility. As admitted by private respondent in his

Comment, he is not a CESO or a member of the

Career Executive Service.

In the case ofAchacoso v. Macaraig, et

al., the Court held:

It is settled that a permanent appointment can be

issued only to a person who meets all the

requirements for the position to which he s being

appointed, including the appropriate eligibility

prescribed. Achacoso did not. At best, therefore, his

appointment could be regarded only as temporary.

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And being so, it could be withdrawn at will by the

appointing authority and at a moments notice,

conformably to established jurisprudence.

The Court, having considered these submissions and

the additional arguments of the parties in the

petitioners Reply and of the Solicitor-Generals

Rejoinder, must find for the respondents.

The mere fact that a position belongs to the CareerService does not automatically confer security of

tenure in its occupant even if he does not possess the

required qualifications. Such right will have to depend

on the nature of his appointment, which in turn

depends on his eligibility or lack of it. A person who

does not have the requisite qualifications for the

position cannot be appointed to it in the first place or,

only as an exception to the rule, may be appointed to

it merely in an acting capacity in the absence of

appropriate eligibles. The appointment extended to

him cannot be regarded as permanent even if it may

be so designated.

Evidently, private respondents appointment

did not attain permanency. Not having taken the

necessary Career Executive Service examination to

obtain the requisite eligibility, he did not at the time of

his appointment and up to the present, possess the

needed eligibility for a position in the Career Executive

Service. Consequently, his appointment as Ministry

Legal Counsel-CESO IV/Department Legal Counsel

and/or Director III, was merely temporary. Such

being the case, he could be transferred or reassigned

without violating the constitutionally guaranteed right

to security of tenure.

Private respondent capitalizes on his lack of

CES eligibility by adamantly contending that the

mobility and flexibility concepts in the assignment of

personnels under the Career Executive Service do not

apply to him because he s not a Career Executive

Service Officer. Obviously, the contention is without

merit. As correctly pointed out by the Solicitor

General, non-eligibles holding permanent

appointments to CES positions were never meant to

remain immobile in their status. Otherwise, their lack

of eligibility would be a premium vesting them withpermanency in the CES positions, a privilege even their

eligible counterparts do not enjoy.

Then too, the cases on unconsented

transfer invoked by private respondent find no

application in the present case. To reiterate, private

respondents appointment is merely temporary; hence,

he could be transferred or reassigned to other

positions without violating his right to security of

tenure. (De Leon v. Court of Appeals, 350 SCRA

1, Jan. 22, 2001, En Banc [Ynares-Santiago])

In the career executive service, is a career

executive service (CES) eligibility all that an

employee needs to acquire security of tenure? Is

appointment to a CES rank necessary for the

acquisition of such security of tenure?

Held: In the career executive service, the

acquisition of security of tenure which presupposes a

permanent appointment is governed by the rules and

regulations promulgated by the CES Board x x x.

As clearly set forth in the foregoing provisions, two

requisites must concur in order that an employee in

the career executive service may attain security of

tenure, to wit:

CES eligibility; and

Appointment to the appropriate CES rank.

In addition, it must be stressed that the security of

tenure of employees in the career executive service

(except first and second level employees in the civil

service), pertains only to rank and not to the office or

to the position to which they may be appointed. Thus,

a career executive service officer may be transferred

or reassigned from one position to another without

losing his rank which follows him wherever he is

transferred or reassigned. In fact, a CESO suffers no

diminution of salary even if assigned to a CES position

with lower salary grade, as he is compensated

according to his CES rank and not on the basis of the

position or office he occupies.

In the case at bar, there is no question that

respondent Ramon S. Roco, though a CES eligible,

does not possess the appropriate CES rank, which is

CES rank level V, for the position of Regional Director

of the LTO (Region V). Falling short of one of the

qualifications that would complete his membership in

the CES, respondent cannot successfully interpose

violation of security of tenure. Accordingly, he could

be validly reassigned to other positions in the career

executive service. x x x

Moreover, under the mobility and flexibility principlesof the Integrated Reorganization Plan, CES personnel

may be reassigned or transferred from one position to

another x x x.

One last point. Respondent capitalizes on the fact that

petitioner Luis Mario M. General is not a CES eligible.

The absence, however, of such CES eligibility is of no

moment. As stated in Part III, Chapter I, Article IV,

paragraph 5(c), of the Integrated Reorganization Plan

x x x the President may, in exceptional cases, appoint

any person who is not a Career Executive Service

eligible; provided that such appointee shall

subsequently take the required Career Executive

Service examination and that he shall not be promoted

to a higher class until he qualified in such

examination.

Evidently, the law allows appointment of those who are

not CES eligible, subject to the obtention of said

eligibility, in the same manner that the appointment of

respondent who does not possess the required CES

rank (CES rank level V) for the position of Regional

Director of the LTO, is permitted in a temporarycapacity. (General v. Roco, 350 SCRA 528, Jan.

29, 2001, 1stDiv. [Ynares-Santiago])

How are positions in the Civil Service classified?

Discuss the characteristics of each.

Ans.: Positions in the Civil Service may be

classified into: 1) Career Positions, and 2) Non-Career

Positions.

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Career Positions are characterized by (1) entrance

based on merit and fitness to be determined as far as

practicable by competitive examination, or based on

highly technical qualifications; (2) opportunity for

advancement to higher career positions; and (3)

security of tenure (Sec. 7, Chap. 2, Subtitle A, Title

I, Bk. V, E.O. No. 292).

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

entrance on bases other than of the usual tests ofmerit or fitness utilized for the career service; and (2)

tenure which is limited to a period specified by law, or

which is coterminous with that of the appointing

authority or subject to his pleasure, or which is limited

to the duration of a particular project for which

purpose employment was made (Sec. 9, Chap. 2,

Subtitle A, Title I, Bk. V, E.O. No. 292).

What is a primarily confidential position? What

is the test to determine whether a position is

primarily confidential or not?

Held: Aprimarily confidential position is one which

denotes not only confidence in the aptitude of the

appointee for the duties of the office but primarily

close intimacy which ensures freedom from intercourse

without embarrassment or freedom from misgivings or

betrayals of personal trust or confidential matters of

state. (De los Santos v. Mallare, 87 Phil. 289

[1950])

Under theproximity rule, the occupant of a particular

position could be considered a confidential employee ifthe predominant reason why he was chosen by the

appointing authority was the latters belief that he can

share a close intimate relationship with the occupant

which ensures freedom of discussion without fear or

embarrassment or misgivings of possible betrayal of

personal trust or confidential matters of state. Withal,

where the position occupied is more remote from that

of the appointing authority, the element of trust

between them is no longer predominant. (CSC v.

Salas, 274 SCRA 414, June 19, 1997)

Does the Civil Service Law contemplate a review

of decisions exonerating officers or employees

from administrative charges?

Held: By this ruling, we now expressly abandon and

overrule extant jurisprudence that the phrase party

adversely affected by the decision refers to the

government employee against whom the

administrative case is filed for the purpose of

disciplinary action which may take the form of

suspension, demotion in rank or salary, transfer,

removal or dismissal from office and not included arecases where the penalty imposed is suspension for

not more than thirty (30) days or fine in an amount

not exceeding thirty days salary(Paredes v. Civil

Service Commission, 192 SCRA 84, 85)or when

respondent is exonerated of the charges, there is no

occasion for appeal.(Mendez v. Civil Service

Commission, 204 SCRA 965, 968) In other words, we

overrule prior decisions holding that the Civil Service

Law does not contemplate a review of decisions

exonerating officers or employees from administrative

charges enunciated inParedes v. Civil Service

Commission (192 SCRA 84); Mendez v. Civil Service

Commission (204 SCRA 965); Magpale v. Civil Service

Commission (215 SCRA 398); Navarro v. Civil Service

Commission and Export Processing Zone Authority

(226 SCRA 207) and more recently Del Castillo v. Civil

Service Commission (237 SCRA 184).(CSC v. Pedro

O. Dacoycoy, G.R. No. 135805, April 29, 1999, En

Banc [Pardo])

What is preventive suspension? Discuss its

nature.

Held: Imposed during the pendency of an

administrative investigation, preventive suspension is

not a penalty in itself. It is merely a measure of

precaution so that the employee who is charged may

be separated, for obvious reasons, from the scene of

his alleged misfeasance while the same is being

investigated. Thus preventive suspension is distinct

from the administrative penalty of removal from office

such as the one mentioned in Sec. 8(d) of P.D. No.

807. While the former may be imposed on a

respondent during the investigation of the charges

against him, the latter is the penalty which may only

be meted upon him at the termination of the

investigation or the final disposition of the

case. (Beja, Sr. v. CA, 207 SCRA 689, March 31,

1992 [Romero])

Discuss the kinds of preventive suspension underthe Civil Service Law. When may a civil service

employee placed under preventive suspension be

entitled to compensation?

Held: There are two kinds of preventive suspension of

civil service employees who are charged with offenses

punishable by removal or suspension: (1) preventive

suspensionpending investigation(Sec. 51, Civil

Service Law, EO No. 292) and (2) preventive

suspensionpending appealif the penalty imposed by

the disciplining authority is suspension or dismissal

and, after review, the respondent is

exonerated(Section 47, par. 4, Civil Service Law, EO

No. 292).

Preventive suspensionpending investigation is not a

penalty. It is a measure intended to enable the

disciplining authority to investigate charges against

respondent by preventing the latter from intimidating

or in any way influencing witnesses against him. If the

investigation is not finished and a decision is not

rendered within that period, the suspension will be

lifted and the respondent will automatically be

reinstated. If after investigation respondent is found

innocent of the charges and is exonerated, he shouldbe reinstated. However, no compensation was due for

the period of preventive suspension pending

investigation. The Civil Service Act of 1959(R.A. No.

2260) providing for compensation in such a case once

the respondent was exonerated was revised in 1975

and the provision on the payment of salaries during

suspension was deleted.

But although it is held that employees who are

preventively suspendedpending investigation are not

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entitled to the payment of their salaries even if they

are exonerated, they are entitled to compensation for

the period of their suspensionpending appealif

eventually they are found innocent.

Preventive suspensionpending investigation x x x is

not a penalty but only a means of enabling the

disciplining authority to conduct an unhampered

investigation. On the other hand, preventive

suspensionpending appealis actually punitivealthough it is in effect subsequently considered illegal if

respondent is exonerated and the administrative

decision finding him guilty is reversed. Hence, he

should be reinstated with full pay for the period of the

suspension. (Gloria v. CA, G.R. No. 131012, April

21, 1999, En Banc [Mendoza])

Discuss the power of Ombudsman to conduct

administrative investigations, and to impose

preventive suspension.

Held: Worth stressing, to resolve the present

controversy, we must recall that the authority of the

Ombudsman to conduct administrative investigations is

mandated by no less than the Constitution. x x x

R.A. 6770, the Ombudsman Law, further grants the

Office of the Ombudsman the statutory power to

conduct administrative investigations. x x x

Section 21 of R.A. 6770 names the officials subject to

the Ombudsmans disciplinary authority x x x.

Petitioner is an elective local official accused of grave

misconduct and dishonesty. That the Office of the

Ombudsman may conduct an administrative

investigation into the acts complained of, appears clear

from the foregoing provisions of R.A. 6770.

However, the question of whether or not the

Ombudsman may conduct an investigation over a

particular act or omission is different from the question

of whether or not petitioner, after investigation, may

be held administratively liable. This distinction ought

here to be kept in mind even as we must also take

note that the power to investigate is distinct from thepower to suspend preventively an erring public officer.

Likewise worthy of note, the power of the Office of the

Ombudsman to preventively suspend an official subject

to its administrative investigation is provided by

specific provision of law. x x x

We have previously interpreted the phrase under his

authority to mean that the Ombudsman can

preventively suspend all officials under investigation by

his office, regardless of the branch of government in

which they are employed, excepting of course those

removable by impeachment, members of Congress and

the Judiciary.

The power to preventively suspend is available not

only to the Ombudsman but also to the Deputy

Ombudsman. This is the clear import of Section 24 of

R.A. 6770 abovecited.

There can be no question in this case as to the power

and authority of respondent Deputy Ombudsman to

issue an order of preventive suspension against an

official like the petitioner, to prevent that official from

using his office to intimidate or influence

witnesses (Gloria v. CA, et al., G.R. No. 131012, April

21, 1999, p. 7, 306 SCRA 287)or to tamper with

records that might be vital to the prosecution of the

case against him (Yasay, Jr. v. Desierto, et al., G.R.

No. 134495, December 28, 1998, p. 9, 300 SCRA

494). In our view, the present controversy simply

boils down to this pivotal question: Given the purpose

of preventive suspension and the circumstances of thiscase, did respondent Deputy Ombudsman commit a

grave abuse of discretion when he set the period of

preventive suspension at six months?

Preventive suspension under Sec. 24, R.A. 6770 x x x

may be imposed when, among other factors, the

evidence of guilt is strong. The period for which an

official may be preventively suspended must not

exceed six months. In this case, petitioner was

preventively suspended and ordered to cease and

desist from holding office for the entire period of six

months, which is the maximum provided by law.

The determination of whether or not the evidence of

guilt is strong as to warrant preventive suspension

rests with the Ombudsman. The discretion as regards

the period of such suspension also necessarily belongs

to the Ombudsman, except that he cannot extend the

period of suspension beyond that provided by

law. But, in our view, both the strength of the

evidence to warrant said suspension and the propriety

of the length or period of suspension imposed on

petitioner are properly raised in this petition for

certiorari and prohibition. X x x

Given these findings, we cannot say now that there is

no evidence sufficiently strong to justify the imposition

of preventive suspension against petitioner. But

considering its purpose and the circumstances in the

case brought before us, it does appear to us that the

imposition of the maximum period of six months is

unwarranted.

X x x [G]ranting that now the evidence against

petitioner is already strong, even without conceding

that initially it was weak, it is clear to us that the

maximum six-month period is excessive and definitelylonger than necessary for the Ombudsman to make its

legitimate case against petitioner. We must conclude

that the period during which petitioner was already

preventively suspended, has been sufficient for the

lawful purpose of preventing petitioner from hiding and

destroying needed documents, or harassing and

preventing witnesses who wish to appear against

him. (Garcia v. Mojica, 314 SCRA 207, Sept. 10,

1999, 2ndDiv. [Quisumbing])

Distinguish preventive suspension under the

Local Government Code from preventive

suspension under the Ombudsman Act.

Held: We reach the foregoing conclusion, however,

without necessarily subscribing to petitioners claim

that the Local Government Code, which he averred

should apply to this case of an elective local official,

has been violated. True, under said Code, preventive

suspension may only be imposed after the issues are

joined, and only for a maximum period of sixty days.

Here, petitioner was suspended without having had the

chance to refute first the charges against him, and for

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the maximum period of six months provided by the

Ombudsman Law. But as respondents argue,

administrative complaints commenced under the

Ombudsman Law are distinct from those initiated

under the Local Government Code. Respondents point

out that the shorter period of suspension under the

Local Government Code is intended to limit the period

of suspension that may be imposed by a mayor, a

governor, or the President, who may be motivated by

partisan political considerations. In contrast theOmbudsman, who can impose a longer period of

preventive suspension, is not likely to be similarly

motivated because it is a constitutional body. The

distinction is valid but not decisive, in our view, of

whether there has been grave abuse of discretion in a

specific case of preventive suspension.

Respondents may be correct in pointing out

the reason for the shorter period of preventive

suspension imposable under the Local Government

Code. Political color could taint the exercise of the

power to suspend local officials by the mayor,governor, or Presidents office. In contrast the

Ombudsman, considering the constitutional origin of

his Office, always ought to be insulated from the

vagaries of politics, as respondents would have us

believe.

In Hagad v. Gozo-Dadole, on the matter of

whether or not the Ombudsman has been stripped of

his power to investigate local elective officials by virtue

of the Local Government Code, we said:

Indeed, there is nothing in the Local Government

Code to indicate that it has repealed, whether

expressly or impliedly, the pertinent provisions of the

Ombudsman Act. The two statutes on the specific

matter in question are not so inconsistent, let alone

irreconcilable, as to compel us to only uphold one and

strike down the other.

It was also argued in Hagad, that the six-

month preventive suspension under the Ombudsman

Law is much too repugnant to the 60-day period that

may be imposed under the Local Government Code.

But per J. Vitug, the two provisions govern

differently.

However, petitioner now contends

that Hagaddid not settle the question of whether a

local elective official may be preventively suspended

even before the issues could be joined. Indeed it did

not, but we have held in other cases that there could

be preventive suspension even before the charges

against the official are heard, or before the official is

given an opportunity to prove his innocence.

Preventive suspension is merely a preliminary step in

an administrative investigation and is not in any way

the final determination of the guilt of the official

concerned.

Petitioner also avers that the suspension

order against him was issued in violation of Section

26[2] of the Ombudsman Law x x x.

Petitioner argues that before an inquiry

may be converted into a full-blown administrative

investigation, the official concerned must be given 72

hours to answer the charges against him. In his case,

petitioner says the inquiry was converted into an

administrative investigation without him being given

the required number of hours to answer.

Indeed, it does not appear that petitioner

was given the requisite 72 hours to submit a written

answer to the complaint against him. This, however,

does not make invalid the preventive suspension order

issued against him. As we have earlier stated, a

preventive suspension order may be issued even

before the charges against the official concerned isheard.

Moreover, respondents state that petitioner was given

10 days to submit his counter-affidavit to the

complaint filed by respondent Tagaan. We find this

10-day period is in keeping with Section 5[a] of the

Rules of Procedure of the Office of the Ombudsman x x

x. (Garcia v. Mojica, 314 SCRA 207, Sept. 10,

1999, 2ndDiv. [Quisumbing])

Does Section 13, Republic Act No. 3019 exclude

from its coverage the members of Congress and,

therefore, the Sandiganbayan erred in decreeing

the preventive suspension order against Senator

Miriam Defensor-Santiago? Will the order of

suspension prescribed by Republic Act No. 3019

not encroach on the power of Congress to

discipline its own ranks under the Constitution?

Held: The petition assails the authority of

the Sandiganbayan to decree a ninety-day preventive

suspension of Mme. Miriam Defensor-Santiago, a

Senator of the Republic of the Philippines, from any

government position, and furnishing a copy thereof to

the Senate of the Philippines for the implementation ofthe suspension order.

The authority of the Sandiganbayan to

order the preventive suspension of an incumbent

public official charged with violation of the provisions

of Republic Act No. 3019 has both legal and

jurisprudential support. X x x

In the relatively recent case ofSegovia v.

Sandiganbayan, the Court reiterated:

The validity of Section 13, R.A. 3019, as amended

treating of the suspensionpendente lite of an accused

public officer may no longer be put at issue, having

been repeatedly upheld by this Court.

The provision of suspensionpendente lite applies to

all persons indicted upon a valid information under the

Act, whether they be appointive or elective officials; or

permanent or temporary employees, or pertaining to

the career or non-career service. (At pp. 336-337)

It would appear, indeed, to be a ministerial

duty of the court to issue an order of suspension upon

determination of the validity of the information filedbefore it. Once the information is found to be

sufficient in form and substance, the court is bound to

issue an order of suspension as a matter of course,

and there seems to be noifs and butsabout it.

Explaining the nature of the preventive suspension, the

Court in the case ofBayot v. Sandiganbayan:

x x x It is not a penalty because it is not imposed as a

result of judicial proceedings. In fact, if acquitted, the

official concerned shall be entitled to reinstatement

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and to the salaries and benefits which he failed to

receive during suspension.

In issuing the preventive suspension of

petitioner, the Sandiganbayan merely adhered to the

clear and unequivocal mandate of the law, as well as

the jurisprudence in which the Court has, more than

once, upheld Sandiganbayans authority to decree the

suspension of public officials and employees indicted

before it.

Section 13 of Republic Act No. 3019 does

not state that the public officer concerned must be

suspended only in the office where he is alleged to

have committed the acts with which he has been

charged. Thus, it has been held that the use of the

word office would indicate that it applies to any office

which the officer charged may be holding, and not only

the particular office under which he stands accused.

(Bayot v. Sandiganbayan, supra; Segovia v.

Sandiganbayan, supra.)

En passant, while the imposition of

suspension is not automatic or self-operative as the

validity of the information must be determined in a

pre-suspension hearing, there is no hard and fast rule

as to the conduct thereof. It has been said that

x x x No specific rules need be laid down for such

pre-suspension hearing. Suffice it to state that the

accused should be given a fair and adequate

opportunity to challenge the VALIDITY OF THE

CRIMINAL PROCEEDINGS against him, e.g., that he

has not been afforded the right of due preliminary

investigation; that the acts for which he standscharged do not constitute a violation of the provisions

of Republic Act 3019 or the bribery provisions of the

Revised Penal Code which would warrant his

mandatory suspension from office under Section 13 of

the Act; or he may present a motion to quash the

information on any of the grounds provided for in Rule

117 of the Rules of Court x x x.

Likewise, he is accorded the

right to challenge the propriety of his prosecution on

the ground that the acts for which he is charged do not

constitute a violation of Rep. Act 3019, or of theprovisions on bribery of the Revised Penal Code, and

the right to present a motion to quash the information

on any other grounds provided in Rule 117 of the Rules

of Court.

However, a challenge to the validity of the criminal

proceedings on the ground that the acts for which the

accused is charged do not constitute a violation of the

provisions of Rep. Act No. 3019, or of the provisions on

bribery of the Revised Penal Code, should be treated

only in the same manner as a challenge to the criminal

proceeding by way of a motion to quash on the ground

provided in Paragraph (a), Section 2 of Rule 117 of the

Rules of Court, i.e., that the facts charged do not

constitute an offense. In other words, a resolution of

the challenge to the validity of the criminal proceeding,

on such ground, should be limited to an inquiry

whether the facts alleged in the information, if

hypothetically admitted, constitute the elements of an

offense punishable under Rep. Act 3019 or the

provisions on bribery of the Revised Penal

Code.(Luciano v. Mariano, 40 SCRA 187 [1971];

People v. Albano, 163 SCRA 511, 517-519 [1988])

The law does not require that the guilt of

the accused must be established in a pre-suspension

proceeding before trial on the merits proceeds.

Neither does it contemplate a proceeding to determine

(1) the strength of the evidence of culpability against

him, (2) the gravity of the offense charged, or (3)

whether or not his continuance in office could influence

the witnesses or pose a threat to the safety and

integrity of the records and other evidence before the

court could have a valid basis in decreeing preventivesuspension pending the trial of the case. All it secures

to the accused is adequate opportunity to challenge

the validity or regularity of the proceedings against

him, such as, that he has not been afforded the right

to due preliminary investigation, that the acts imputed

to him do not constitute a specific crime warranting his

mandatory suspension from office under Section 13 of

Republic Act No. 3019, or that the information is

subject to quashal on any of the grounds set out in

Section 3, Rule 117, of the Revised Rules on Criminal

Procedure.

The pronouncement, upholding the validity

of the information filed against petitioner, behooved

Sandiganbayan to discharge its mandated duty to

forthwith issue the order of preventive suspension.

The order of suspension prescribed by

Republic Act No. 3019 is distinct from the power of

Congress to discipline its own ranks under the

Constitution which provides that each

x x x house may determine the rules of its

proceedings, punish its Members for disorderly

behavior, and, with the concurrence of two-thirds of all

its Members, suspend or expel a Member. A penalty of

suspension, when imposed, shall not exceed sixty

days. (Section 16[3], Article VI, 1987 Constitution)

The suspension contemplated in the above

constitutional provision is a punitive measure that is

imposed upon determination by the Senate or the

House of Representatives, as the case may be, upon

an erring member. Thus, in its resolution in the case

ofCeferino Paredes, Jr. v. Sandiganbayan, et al., the

Court affirmed the order of suspension of

Congressman Paredes by the Sandiganbayan, despitehis protestations on the encroachment by the court on

the prerogatives of Congress. The Court ruled:

x x x Petitioners invocation of Section 16 (3), Article

VI of the Constitution which deals with the power of

each House of Congress inter alia to punish its

Members for disorderly behavior, and suspend or

expel a Member by a vote of two-thirds of all its

Members subject to the qualification that the penalty

of suspension, when imposed, should not exceed sixty

days in unavailing, as it appears to be quite distinct

from the suspension spoken of in Section 13 of RA

3019, which is not a penalty but a preliminary,

preventive measure, prescinding from the fact that the

latter is not being imposed on petitioner for

misbehavior as a Member of the House of

Representatives.

The doctrine of separation of powers by itself may not

be deemed to have effectively excluded Members of

Congress from Republic Act No. 3019 nor from its

sanctions. The maxim simply recognizes each of the

three co-equal and independent, albeit coordinate,

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branches of the government the Legislative, the

Executive and the Judiciary has exclusive

prerogatives and cognizance within its own sphere of

influence and effectively prevents one branch from

unduly intruding into the internal affairs of either

branch.

Parenthetically, it might be well to elaborate a bit.

Section 1, Article VIII, of the 1987 Constitution,

empowers the Court to act not only in the settlementof actual controversies involving rights which are

legally demandable and enforceable, but also in the

determination of whether or not there has been a

grave abuse of discretion amounting to lack or excess

of jurisdiction on the part of any branch or

instrumentality of the government. The provision

allowing the Court to look into any possible grave

abuse of discretion committed by any government

instrumentality has evidently been couched in general

terms in order to make it malleable to judicial

interpretation in the light of any emerging milieu. In

its normal concept, the term has been said to imply anarbitrary, despotic, capricious or whimsical exercise of

judgment amounting to lack or excess of jurisdiction.

When the question, however, pertains to an affair

internal to either of Congress or the Executive, the

Court subscribes to the view that unless an

infringement of any specific Constitutional proscription

thereby inheres the Court should not deign substitute

its own judgment over that of any of the other two

branches of government. It is an impairment or a

clear disregard of a specific constitutional precept or

provision that can unbolt the steel door for judicial

intervention. If any part of the Constitution is not, orceases to be, responsive to contemporary needs, it is

the people, not the Court, who must promptly react in

the manner prescribed by the Charter itself.

Republic Act No. 3019 does not exclude from its

coverage the members of Congress and that,

therefore, the Sandiganbayan did not err in thus

decreeing the assailed preventive suspension order.

Attention might be called to the fact that Criminal Case

No. 16698 has been decided by the First Division of

the Sandiganbayan on 06 December 1999, acquitting

herein petitioner. The Court, nevertheless, deems itappropriate to render this decision for future guidance

on the significant issue raised by

petitioner. (Santiago v. Sandiganbayan, 356 SCRA

636, April 18, 2001, En Banc [Vitug])

May an elective public official be validly

appointed or designated to any public office or

position during his tenure?

Ans.: No elective official shall be eligible

for appointment or designation in any capacity to any

public office or position during his tenure. (Sec. 7,

1stpar., Art. IX-B, 1987 Constitution)

May an appointive public official hold any other

office or employment?

Ans.: Unless otherwise allowed by law or

by the primary functions of his position, no appointive

official shall hold any other office or employment in the

Government or any subdivision, agency or

instrumentality thereof, including government-owned

or controlled corporation. (Sec. 7, 2ndpar., Art. IX-

B, 1987 Constitution)

May the President, Vice-President, Members of

the Cabinet, their deputies or assistants hold any

other office or employment?

Ans.: The President, Vice-President, the

Members of the Cabinet, and their deputies or

assistants shall not, unless otherwise provided in this

Constitution, hold any other office or employment

during their tenure. (Sec. 13, Art. VII, 1987

Constitution)

Does the prohibition in Section 13, Article VII of the

1987 Constitution insofar as Cabinet members, their

deputies or assistants are concerned admit of the

broad exceptions made for appointive officials in

general under Section 7, par. (2), Article IX-B?

Held: The threshold question therefore is:

does the prohibition in Section 13, Article VII of the

1987 Constitution insofar as Cabinet members, their

deputies or assistants are concerned admit of the

broad exceptions made for appointive officials in

general under Section 7, par. (2), Article IX-B which,

for easy reference is quoted anew, thus: Unless

otherwise allowed by law or by the primary functions

of his position, no appointive official shall hold any

other office or employment in the government or any

subdivision, agency or instrumentality thereof,

including government-owned or controlled corporationor their subsidiaries.

We rule in the negative.

The practice of designating members of the

Cabinet, their deputies and assistants as members of

the governing bodies or boards of various government

agencies and instrumentalities, including government-

owned and controlled corporations, became prevalent

during the time legislative powers in this country were

exercised by former President Ferdinand E. Marcos

pursuant to his martial law authority. There was a

proliferation of newly-created agencies,

instrumentalities and government-owned and

controlled corporations created by presidential decrees

and other modes of presidential issuances where

Cabinet members, their deputies or assistants were

designated to head or sit as members of the board

with the corresponding salaries, emoluments, per

diems, allowances and other perquisites of office. X x

x

This practice of holding multiple offices or

positions in the government soon led to abuses by

unscrupulous public officials who took advantage ofthis scheme for purposes of self-enrichment. X x x

Particularly odious and revolting to the

peoples sense of propriety and morality in government

service were the data contained therein that Roberto v.

Ongpin was a member of the governing boards of

twenty-nine (29) governmental agencies,

instrumentalities and corporations; Imelda R. Marcos

of twenty-three (23); Cesar E.A. Virata of twenty-two

(22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S.

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Hipolito and Geronimo Z. Velasco, of fourteen each

(14); Cesar C. Zalamea of thirteen (13); Ruben B.

Ancheta and Jose A. Rono of twelve (12) each; Manuel

P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas

of eleven (11) each; and Lilia Bautista and Teodoro Q.

Pena of ten (10) each.

The blatant betrayal of public trust evolved

into one of the serious causes of discontent with the

Marcos regime. It was therefore quite inevitable andin consonance with the overwhelming sentiment of the

people that the 1986 Constitutional Commission,

convened as it was after the people successfully

unseated former President Marcos, should draft into its

proposed Constitution the provisions under

consideration which are envisioned to remedy, if not

correct, the evils that flow from the holding of multiple

governmental offices and employment. X x x

But what is indeed significant is the fact

that although Section 7, Article IX-B already contains a

blanket prohibition against the holding of multipleoffices or employment in the government subsuming

both elective and appointive public officials, the

Constitutional Commission should see it fit to

formulate another provision, Sec. 13, Article VII,

specifically prohibiting the President, Vice-President,

members of the Cabinet, their deputies and assistants

from holding any other office or employment during

their tenure, unless otherwise provided in the

Constitution itself.

Evidently, from this move as well as in the

different phraseologies of the constitutional provisions

in question, the intent of the framers of the

Constitution was to impose a stricter prohibition on the

President and his official family in so far as holding

other offices or employment in the government or

elsewhere is concerned.

Moreover, such intent is underscored by a

comparison of Section 13, Article VII with other

provisions of the Constitution on the disqualifications

of certain public officials or employees from holding

other offices or employment. Under Section 13, Article

VI, [N]o Senator or Member of the House of

Representatives may hold any other office oremployment in the Government x x x. Under section

5(4), Article XVI, [N]o member of the armed forces in

the active service shall, at any time, be appointed in

any capacity to a civilian position in the

Government, including government-owned or

controlled corporations or any of their subsidiaries.

Even Section 7(2), Article IX-B, relied upon by

respondents provides [U]nless otherwise allowed by

law or by the primary functions of his position, no

appointive official shall hold any other office or

employment in the Government.

It is quite notable that in all these

provisions on disqualifications to hold other office or

employment, the prohibition pertains to an office or

employment in the governmentand government-

owned or controlled corporations or their subsidiaries.

In striking contrast is the wording of Section 13, Article

VII which states that [T]he President, Vice-President,

the Members of the Cabinet, and their deputies or

assistants shall not, unless otherwise provided in this

Constitution, hold any other office or employment

during their tenure. In the latter provision, the

disqualification is absolute, not being qualified by the

phrase in the Government. The prohibition imposed

on the President and his official family is therefore all-

embracing and covers both public and private office or

employment.

Going further into Section 13, Article VII,

the second sentence provides: They shall not, during

said tenure, directly or indirectly, practice any otherprofession, participate in any business, or be

financially interested in any contract with, or in any

franchise, or special privilege granted by the

Government or any subdivision, agency or

instrumentality thereof, including government-owned

or controlled corporations or their subsidiaries. These

sweeping, all-embracing prohibitions imposed on the

President and his official family, which prohibitions are

not similarly imposed on other public officials or

employees such as the Members of Congress,

members of the civil service in general and members

of the armed forces, are proof of the intent of the 1987Constitution to treat the President and his official

family as a class by itself and to impose upon said

class stricter prohibitions.

Thus, while all other appointive officials in

the civil service are allowed to hold other office or

employment in the government during their tenure

when such is allowed by law or by the primary

functions of their positions, members of the Cabinet,

their deputies and assistants may do so only when

expressly authorized by the Constitution itself. In

other words, Section 7, Article IX-B is meant to lay

down the general rule applicable to all elective and

appointive public officials and employees, while Section

13, Article VII is meant to be the exception applicable

only to the President, the Vice-President, Members of

the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase

unless otherwise provided in this Constitution in

Section 13, Article VII cannot possibly refer to the

broad exceptions provided under Section 7, Article IX-

B of the 1987 Constitution. To construe said qualifying

phrase as respondents would have us to do, would

render nugatory and meaningless the manifest intentand purpose of the framers of the Constitution to

impose a stricter prohibition on the President, Vice-

President, Members of the Cabinet, their deputies and

assistants with respect to holding other offices or

employment in the government during their tenure.

Respondents interpretation that Section 13 of Article

VII admits of the exceptions found in Section 7, par.

(2) of Article IX-B would obliterate the distinction so

carefully set by the framers of the Constitution as to

when the high-ranking officials of the Executive Branch

from the President to assistant Secretary, on the one

hand, and the generality of civil servants from the rankimmediately below Assistant Secretary downwards, on

the other, may hold any other office or position in the

government during their tenure.

Moreover, respondents reading of the

provisions in question would render certain parts of the

Constitution inoperative. This observation applies

particularly to the Vice-President who, under Section

13 of Article VII is allowed to hold other office or

employment when so authorized by the Constitution,

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but who as an elective public official under Sec. 7, par.

(1) of Article IX-B is absolutely ineligible for

appointment or designation in any capacity to any

public office or position during his tenure. Surely, to

say that the phrase unless otherwise provided in this

Constitution found in Section 13, Article VII has

reference to Section 7, par. (1) of Article IX-B would

render meaningless the specific provisions of the

Constitution authorizing the Vice-President to become

a member of the Cabinet (Sec. 3, Ibid.), and to act asPresident without relinquishing the Vice-Presidency

where the President shall not have been chosen or fails

to qualify (Sec. 7, Article VII). Such absurd

consequence can be avoided only by interpreting the

two provisions under consideration as one, i.e., Section

7, par. (1) of Article IX-B providing the general rule

and the other, i.e., Section 13, Article VII as

constituting the exception thereto. In the same

manner must Section 7, par. (2) of Article IX-B be

construed vis--vis Section 13, Article VII.

Since the evident purpose of the framers ofthe 1987 Constitution is to impose a stricter prohibition

on the President, Vice-President, members of the

Cabinet, their deputies and assistants with respect to

holding multiple offices or employment in the

government during their tenure, the exception to this

prohibition must be read with equal severity. On its

face, the language of Section 13, Article VII is

prohibitory so that it must be understood as intended

to be a positive and unequivocal negation of the

privilege of holding multiple government offices and

employment. Verily, wherever the language used in

the constitution is prohibitory, it is to be understood asintended to be a positive and unequivocal negation

(Varney v. Justice, 86 Ky 596; 6 S.W. 457; Hunt v.

State, 22 Tex. App. 396, 3 S.W. 233). The phrase

unless otherwise provided in this Constitution must

be given a literal interpretation to refer only to those

particular instances cited in the Constitution itself, to

wit: the Vice-President being appointed as a member

of the Cabinet under Section 3, par. (2), Article VII; or

acting as President in those instances provided under

Section 7, pars. (2) and (3), Article VII; and, the

Secretary of Justice being ex-officiomember of the

Judicial and Bar Council by virtue of Section 8 (1),

Article VIII.

It being clear x x x that the 1987

Constitution seeks to prohibit the President, Vice-

President, members of the Cabinet, their deputies or

assistants from holding during their tenure multiple

offices or employment in the government, except in

those cases specified in the Constitution itself and as

above clarified with respect to posts held without

additional compensation in an ex-officio capacity as

provided by law and as required by the primary

functions of their office, the citation of Cabinet

members (then called Ministers) as examples duringthe debate and deliberation on the general rule laid

down for all appointive officials should be considered

as mere personal opinions which cannot override the

constitutions manifest intent and the peoples

understanding thereof.

In the light of the construction given to

Section 13, Article VII in relation to Section 7, par. (2),

Article IX-B of the 1987 Constitution, Executive Order

No. 284 dated July 23, 1987 is unconstitutional.

Ostensibly restricting the number of positions that

Cabinet members, undersecretaries or assistant

secretaries may hold in addition to their primary

position to not more than two (2) positions in the

government and government corporations, Executive

Order No. 284 actually allows them to hold multiple

offices or employment in direct contravention of the

express mandate of Section 13, Article VII of the 1987

Constitution prohibiting them from doing so, unless

otherwise provided in the 1987 Constitution itself.

The Court is alerted by respondents to the

impractical consequences that will result from a strict

application of the prohibition mandated under Section

13, Article VII on the operations of the Government,

considering that Cabinet members would be stripped of

their offices held in an ex-officio capacity, by reason of

their primary positions or by virtue of legislation. As

earlier clarified in this decision, ex-officio posts held by

the executive official concerned without additional

compensation as provided by law and as required by

the primary functions of his office do not fall under thedefinition of any other office within the contemplation

of the constitutional prohibition. With respect to other

offices or employment held by virtue of legislation,

including chairmanships or directorships in

government-owned or controlled corporations and their

subsidiaries, suffice it to say that the feared

impractical consequences are more apparent than

real. Being head of an executive department is no

mean job. It is more than a full-time job, requiring full

attention, specialized knowledge, skills and expertise.

If maximum benefits are to be derived from a

department heads ability and expertise, he should beallowed to attend to his duties and responsibilities

without the distraction of other governmental offices or

employment. He should be precluded from dissipating

his efforts, attention and energy among too many

positions and responsibility, which may result in

haphazardness and inefficiency. Surely the

advantages to be derived from this concentration of

attention, knowledge and expertise, particularly at this

stage of our national and economic development, far

outweigh the benefits, if any, that may be gained from

a department head spreading himself too thin and

taking in more than what he can handle.

Finding Executive Order No. 284 to be

constitutionally infirm, the Court hereby orders

respondents x x x to immediately relinquish their

other offices or employment, as herein defined,

in the government, including government-owned

or controlled corporations and their

subsidiaries. (Civil Liberties Union v. Executive

Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc

[Fernan, CJ])

Does the prohibition against holding dual or

multiple offices or employment under Section 13,Article VII of the Constitution apply to posts

occupied by the Executive officials specified

therein without additional compensation in an

ex-officio capacity as provided by law and as

required by the primary functions of said

officials office?

Held: The prohibition against holding dual

or multiple offices or employment under Section 13,

Article VII of the Constitution must not, however, be

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construed as applying to posts occupied by the

Executive officials specified therein without additional

compensation in an ex-officio capacity as provided by

law and asrequired(As opposed to the term allowed

used in Section 7, par. (2), Article IX-B of the

Constitution, which is permissive. Required suggests

an imposition, and therefore, obligatory in nature) by

the primary functions of said officials office. The

reason is that these posts do not comprise any other

office within the contemplation of the constitutionalprohibition but are properly an imposition of additional

duties and functions on said officials. To characterize

these posts otherwise would lead to absurd

consequences, among which are: The President of the

Philippines cannot chair the National Security Council

reorganized under Executive Order No. 115. Neither

can the Vice-President, the Executive Secretary, and

the Secretaries of National Defense, Justice, Labor and

Employment and Local Government sit in this Council,

which would then have no reason to exist for lack of a

chairperson and members. The respective

undersecretaries and assistant secretaries, would alsobe prohibited.

Indeed, the framers of our Constitution

could not have intended such absurd consequences. A

Constitution, viewed as a continuously operative

charter of government, is not to be interpreted as

demanding the impossible or the impracticable; and

unreasonable or absurd consequences, if possible,

should be avoided.

To reiterate, the prohibition under Section

13, Article VII is not to be interpreted as covering

positions held without additional compensation in ex-

officiocapacities as provided by law and as required by

the primary functions of the concerned officials office.

The term ex-officio means from office; by virtue of

office. It refers to an authority derived from official

character merely, not expressly conferred upon the

individual character, but rather annexed to the official

position.Ex officio likewise denotes an act done in an

official character, or as a consequence of office, and

without any other appointment or authority than that

conferred by the office. An ex-officio member of a

board is one who is a member by virtue of his title to a

certain office, and without further warrant or

appointment. To illustrate, by express provision of

law, the Secretary of Transportation and

Communications is theex-officio Chairman of the Board

of the Philippine Ports Authority (Sec. 7, E.O. 778),

and the Light Rail Transit Authority (Sec. 1, E.O. 210).

The Court had occasion to explain the

meaning of an ex-officio position inRafael v.

Embroidery and Apparel Control and Inspection Board,

thus: An examination of Section 2 of the questioned

statute (R.A. 3137) reveals that for the chairman and

members of the Board to qualify they need only bedesignated by the respective department heads. With

the exception of the representative from the private

sector, they sit ex-officio. I order to be designated

they must already be holding positions in the offices

mentioned in the law. Thus, for instance, one who

does not hold a previous appointment in the Bureau of

Customs, cannot, under the act, be designated a

representative from that office. The same is true with

respect to the representatives from the other offices.

No new appointments are necessary. This is as it

should be, because the representatives so

designated merely perform duties in the Board in

addition to those already performed under their

original appointments.

The term primary used to describe

functions refers to the order of importance and thus

means chief or principal function. The term is not

restricted to the singular but may refer to the

plural (33A Words and Phrases, p. 210). Theadditional duties must not only be closely related to,

but must be required by the officials primary

functions. Examples of designations to positions by

virtue of ones primary functions are the Secretaries of

Finance and Budget sitting as members of the

Monetary Board, and the Secretary of Transportation

and Communications acting as Chairman of the

Maritime Industry Authority and the Civil Aeronautics

Board.

If the functions to be performed are merely

incidental, remotely related, inconsistent,incompatible, or otherwise alien to the primary

function of a cabinet official, such additional functions

would fall under the purview of any other office

prohibited by the Constitution. An example would be

the Press Undersecretary sitting as a member of the

Board of the Philippine Amusement and Gaming

Corporation. The same rule applies to such positions

which confer on the cabinet official management

functions and/or monetary compensation, such as but

not limited to chairmanships or directorships in

government-owned or controlled corporations and their

subsidiaries.

Mandating additional duties and functions to

the President, Vice-President, Cabinet Members, their

deputies or assistants which are not inconsistent with

those already prescribed by their offices or

appointments by virtue of their special knowledge,

expertise and skill in their respective executive offices

is a practice long-recognized in many jurisdictions. It

is a practice justified by the demands of efficiency,

policy direction, continuity and coordination among the

different offices in the Executive Branch in the

discharge of its multifarious tasks of executing and

implementing laws affecting national interest andgeneral welfare and delivering basic services to the

people. It is consistent with the power vested on the

President and his alter egos, the Cabinet members, to

have control of all the executive departments, bureaus

and offices and to ensure that the laws are faithfully

executed. Without these additional duties and

functions being assigned to the President and his

official family to sit in the governing bodies or boards

of governmental agencies or instrumentalities in an ex-

officio capacity as provided by law and as required by

their primary functions, they would be deprived of the

means for control and supervision, thereby resulting inan unwieldy and confused bureaucracy.

It bears repeating though that in order that

such additional duties or functions may not transgress

the prohibition embodied in Section 13, Article VII of

the 1987 Constitution, such additional duties or

functions must be required by the primary functions of

the official concerned, who is to perform the same in

an ex-officio capacity as provided by law, without

receiving any additional compensation therefor.

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The ex-officio position being actually and in

legal contemplation part of the principal office, it

follows that the official concerned has no right to

receive additional compensation for his services in the

said position. The reason is that these services are

already paid for and covered by the compensation

attached to his principal office. It should be obvious

that if, say, the Secretary of Finance attends a meeting

of the Monetary Board as an ex-officio member

thereof, he is actually and in legal contemplationperforming the primary function of his principal office

in defining policy in monetary and banking matters,

which come under the jurisdiction of his department.

For such attendance, therefore, he is not entitled to

collect any extra compensation, whether it be in the

form of a per diem or an honorarium or an allowance,

or some other such euphemism. By whatever name it

is designated, such additional compensation is

prohibited by the Constitution. (Civil Liberties Union

v. Executive Secretary, 194 SCRA 317, Feb. 22,

1991, En Banc [Fernan, CJ])

Should members of the Cabinet appointed to

other positions in the government pursuant to

Executive Order No. 284 which later was

declared unconstitutional by the SC for being

violative of Section 13, Article VII of the

Constitution be made to reimburse the

government for whatever pay and emoluments

they received from holding such other positions?

Held: During their tenure in the

questioned positions, respondents may be

considered de facto officers and as such entitled to

emoluments for actual services rendered. It has been

held that in cases where there is node jure officer,

a de factoofficer, who, in good faith has had

possession of the office and has discharged the duties

pertaining thereto, is legally entitled to the

emoluments of the office, and may in an appropriate

action recover the salary, fees and other

compensations attached to the office. This doctrine is,

undoubtedly, supported on equitable grounds since it

seems unjust that the public should benefit by the

services of an officer de facto and then be freed from

all liability to pay any one for such services . Any per

diem, allowances or other emoluments received by the

respondents by virtue of actual services rendered in

the questioned positions may therefore be retained by

them. (Civil Liberties Union v. Executive

Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc

[Fernan, CJ])

May a Senator or Congressman hold any other

office or employment?

Ans.: No Senator or Member of the House

of Representatives may hold any other office or

employment in the government, or any subdivision,

agency, or instrumentality thereof, including

government-owned or controlled corporations or their

subsidiaries, during his term without forfeiting his

seat. Neither shall he be appointed to any office which

may have been created or the emoluments thereof

increased during the term for which he was

elected. (Sec. 13, Art. VI, 1987 Constitution).

What are the situations covered by the law on

nepotism?

Held: Under the definition of nepotism, one is guilty

of nepotism if an appointment is issued in favor of a

relative within the third civil degree of consanguinity or

affinity of any of the following:

a) appointing authority;

b) recommending authority;

c) chief of the bureau or office; and

d) person exercising immediate supervision over

the appointee.

Clearly, there are four situations covered. In the last

two mentioned situations, it is immaterial who the

appointing or recommending authority is. To

constitute a violation of the law, it suffices that an

appointment is extended or issued in favor of a relative

within the third civil degree of consanguinity or affinityof the chief of the bureau or office, or the person

exercising immediate supervision over the

appointee. (CSC v. Pedro O. Dacoycoy, G.R. No.

135805, April 29, 1999, En Banc [Pardo])

What are the exemptions from the operation of

the rules on nepotism?

Ans.: The following are exempted from the operation

of the rules on nepotism: (a) persons employed in a

confidential capacity, (b) teachers, (c) physicians, and(d) members of the Armed Forces of the Philippines.

The rules on nepotism shall likewise not be

applicable to the case of a member of any family who,

after his or her appointment to any position in an office

or bureau, contracts marriage with someone in the

same office or bureau, in which event the employment

or retention therein of both husband and wife may be

allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk.

V, E.O. No. 292)

What is the doctrine of forgiveness or

condonation? Does it apply to pending criminal

cases?

Held: 1. A public official cannot be removed for

administrative misconduct committed during a prior

term, since his re-election to office operates as a

condonation of the officers previous misconduct to the

extent of cutting off the right to remove him therefor.

The foregoing rule, however, finds no application to

criminal cases pending against petitioner. (Aguinaldo

v. Santos, 212 SCRA 768, 773 [1992])

2. A reelected local official may not be held

administratively accountable for misconduct committed

during his prior term of office. The rationale for this

holding is that when the electorate put him back into

office, it is presumed that it did so with full knowledge

of his life and character, including his past

misconduct. If, armed with such knowledge, it still

reelects him, then such reelection is considered a

condonation of his past misdeeds. (Mayor Alvin B.

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Garcia v. Hon. Arturo C. Mojica, et al., G.R. No.

139043, Sept. 10, 1999 [Quisumbing])

What is the Doctrine of Condonation? Illustrative

case.

Held: Petitioner contends that, per our ruling

inAguinaldo v. Santos, his reelection has rendered the

administrative case filed against him moot and

academic. This is because his reelection operates as a

condonation by the electorate of the misconduct

committed by an elective official during his previous

term. Petitioner further cites the ruling of this Court

in Pascual v. Hon. Provincial Board of Nueva Ecija,

citing Conant v. Brogan, that

x x x When the people have elected a man to office,

it must be assumed that they did this with knowledge

of his life and character, and that they disregarded or

forgave his faults or misconduct, if he had been guilty

of any. It is not for the court, by reason of such faultsor misconduct to practically overrule the will of the

people.

Respondents, on the other hand, contend that while

the contract in question was signed during the

previous term of petitioner, it was to commence or be

effective only on September 1998 or during his current

term. It is the respondents submission that petitioner

went beyond the protective confines ofjurisprudence

when he agreed to extend his act to his current term

of office.Aguinaldo cannot apply, according to

respondents, because what is involved in this case is amisconduct committed during a previous term but to

be effective during the current term.

Respondents maintain that,

x x x petitioner performed two acts with respect to

the contract: he provided for a suspensive period

making the supply contract commence or be effective

during his succeeding or current term and during his

current term of office he acceded to the suspensive

period making the contract effective during his current

term by causing the implementation of the contract.

Hence, petitioner cannot take refuge in the

fact of his reelection, according to respondents.

Further, respondents point out that the

contract in question was signed just four days before

the date of the 1998 election and so it could not be

presumed that when the people of Cebu City voted

petitioner to office, they did so with full knowledge of

petitioners character.

On this point, petitioner responds that

knowledge of an officials previous acts is presumed

and the court need not inquire whether, in reelecting

him, the electorate was actually aware of his prior

misdeeds.

Petitioner cites our ruling in Salalima v.

Guingona, wherein we absolved Albay governor Ramon

R. Salalima of his administrative liability as regards a

retainer agreement he signed in favor of a law firm

during his previous term, although disbursements of

public funds to cover payments under the agreement

were still being done during his subsequent term.

Petitioner argues that, following Salalima, the doctrine

ofAguinaldo applies even where the effects of the acts

complained of are still evident during the subsequent

term of the reelected official. The implementation of

the contract is a mere incident of its execution.

Besides, according to petitioner, the sole act for

which he has been administratively charged is the

signing of the contract with F.E. Zuellig. The charge,

in his view, excludes the contracts execution or

implementation, or any act subsequent to theperfection of the contract.

In Salalima, we recall that the Solicitor

General maintained thatAguinaldodid not apply to that

case because the administrative case against Governor

Rodolfo Aguinaldo of Cagayan was already pending

when he filed his certificate of candidacy for his

reelection bid. Nevertheless, in Salalima, the Court

applied theAguinaldodoctrine, even if the

administrative case against Governor Salalima was

filed after his reelection.

We now come to the concluding inquiry.

Granting that the Office of the Ombudsman may

investigate, for purposes provided for by law, the acts

of petitioner committed prior to his present term of

office; and that it may preventively suspend him for a

reasonable period, can that office hold

him administrativelyliable for said acts?

In a number of cases, we have repeatedly

held that a reelected local official may not be held

administratively accountable for misconduct committed

during his prior term of office. The rationale for this

holding is that when the electorate put him back into

office, it is resumed that it did so with full knowledge

of his life and character, including his past

misconduct. If, armed with such knowledge, it still

reelects him, then such reelection is considered a

condonation of his past misdeeds.

However, in the present case, respondents

point out that the contract entered into by petitioner

with F.E. Zuellig was signed just four days before the

date of the elections. It was not made an issue during

the election, and so the electorate could not be said to

have voted for petitioner with knowledge of thisparticular aspect of his life and character.

For his part, petitioner contends that the

only conclusive determining factor as regards the

peoples thinking on the matter is an election. On this

point we agree with petitioner. That the people voted

for an official with knowledge of his character is

presumed, precisely to eliminate the need to

determine, in factual terms, the extent of this

knowledge. Such an undertaking will obviously be

impossible. Our rulings on the matter do not

distinguish the precise timing or period when the

misconduct was committed, reckoned from the date of

the officials reelection, except that it must be prior to

said date.

As held in Salalima,

The rule adopted inPascual, qualified

inAguinaldo insofar as criminal cases are concerned, is

still a good law. Such a rule is not only founded on the

theory that an officials reelection expresses the

sovereign will of the electorate to forgive or condone

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any act or omission constituting a ground for

administrative discipline which was committed during

his previous term. We may add that sound policy

dictates it. To rule otherwise would open the

floodgates to exacerbating endless partisan contests

between the reelected official and his political enemies,

who may not stop to hound the former during his new

term with administrative cases for acts alleged to have

been committed during his previous term. His second

term may thus be devoted to defending himself in thesaid cases to the detriment of public service x x

x.

The above ruling in Salalima applies to this case.

Petitioner cannot anymore be

heldadministrativelyliable for an act done during his

previous term, that is, his signing of the contract with

F.E. Zuellig.

The assailed retainer agreement

in Salalima was executed sometime in 1990.

Governor Salalima was reelected in 1992 andpayments for the retainer continued to be made during

his succeeding term. This situation is no different from

the one in the present case, wherein deliveries of the

asphalt under the contract with F.E. Zuellig and the

payments therefor were supposed to have commenced

on September 1998, during petitioners second term.

However, respondents argue that the

contract, although signed on May 7, 1998, during

petitioners prior term, is to be made effective only

during his present term.

We fail to see any difference to justify avalid distinction in the result. The agreement between

petitioner (representing Cebu City) and F.E. Zuellig

was perfected on the date the contract was signed,

during petitioners prior term. At that moment,

petitioner already acceded to the terms of the contract,

including stipulations now alleged to be prejudicial to

the city government. Thus, any culpability petitioner

may have in signing the contract already became

extant on the day the contract was signed. It hardly

matters that the deliveries under the contract are

supposed to have been made months later.

While petitioner can no longer be held

administratively liable for signing the contract with F.E.

Zuellig, however, this should not prejudice the filing of

any case other than administrative against petitioner.

Our ruling in this case, may not be taken to mean the

total exoneration of petitioner for whatever

wrongdoing, if any, might have been committed in

signing the subject contract. The ruling now is limited

to the question of whether or not he may be

held administrativelyliable therefor, and it is our

considered view that he may not. (Garcia v. Mojica,

314 SCRA 207, Sept. 10, 1999, 2ndDiv.

[Quisumbing])

Petitioner claims that Benipayo has no authority

to remove her as Director IV of the EID and

reassign her to the Law Department. Petitioner

further argues that only the COMELEC, acting as

a collegial body, can authorize such

reappointment. Moreover, petitioner maintains

that a reassignment without her consent

amounts to removal from office without due

process and therefore illegal.

Held: Petitioners posturing will hold water

if Benipayo does not possess any color of title to the

office of Chairman of the COMELEC. We have ruled,

however, that Benipayo is the de jure COMELEC

Chairman, and consequently he has full authority to

exercise all the powers of that office for so long as

his ad interimappointment remains effective. X x x.The Chairman, as the Chief Executive of the COMELEC,

is expressly empowered on his own authority to

transfer or reassign COMELEC personnel in accordance

with the Civil Service Law. In the exercise of this

power, the Chairman is not required by law to secure

the approval of the COMELEC en banc.

Petitioners appointment papers x x x

indisputably show that she held her Director IV

position in the EID only in

an acting or temporarycapacity. Petitioner is not a

Career Executive Service (CES), and neither does shehold Career Executive Service Eligibility, which are

necessary qualifications for holding the position of

Director IV as prescribed in the Qualifications

Standards (Revised 1987) issued by the Civil Service

Commission. Obviously, petitioner does not enjoy

security of tenure as Director IV. X x x

Having been appointed merely in a

temporary or acting capacity, and not possessed of the

necessary qualifications to hold the position of Director

IV, petitioner has no legal basis in claiming that her

reassignment was contrary to the Civil Service Law. X

x x

Still, petitioner assails her reassignment, carried out

during the election period, as a prohibited act under

Section 261 (h) of the Omnibus Election Code x x x.

Petitioner claims that Benipayo failed to secure the

approval of the COMELEC en bancto effect transfers or

reassignments of COMELEC personnel during the

election period. Moreover, petitioner insists that the

COMELEC en bancmust concur to every transfer or

reassignment of COMELEC personnel during the

election period.

Contrary to petitioners allegation, the COMELEC did in

fact issue COMELEC Resolution No. 3300 dated

November 6, 2000, exempting the COMELEC from

Section 261 (h) of the Omnibus Election Code. X x x

The proviso in COMELEC Resolution No. 3300,

requiring due notice and hearing before any transfer or

reassignment can be made within thirty days prior to

election day, refers only to COMELEC fieldpersonnel

and not to head office personnel like the petitioner.

Under the Revised Administrative Code, the COMELEC

Chairman is thesole officerspecifically vested with thepower to transfer or reassign COMELEC personnel.

The COMELEC Chairman will logically exercise the

authority to transfer or reassign COMELEC personnel

pursuant to COMELEC Resolution No. 3300. The

COMELEC en banccannot arrogate unto itself this

power because that will mean amending the Revised

Administrative Code, an act the COMELEC en

banccannot legally do.

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COMELEC Resolution No. 3300 does not require that

every transfer or reassignment of COMELEC personnel

should carry the concurrence of the COMELEC as a

collegial body. Interpreting Resolution No. 3300 to

require such concurrence will render the resolution

meaningless since the COMELEC en bancwill have to

approve every personnel transfer or reassignment,

making the resolution utterly useless. Resolution No.

3300 should be interpreted for what it is, an approval

to effect transfers and reassignments of personnel,without need of securing a second approval from the

COMELEC en bancto actually implement such transfer

or reassignment.

The COMELEC Chairman is the official expressly

authorized by law to transfer or reassign COMELEC

personnel. The person holding that office, in a de

jure capacity, is Benipayo. The COMELEC en banc, in

COMELEC Resolution No. 3300, approved the transfer

or reassignment of COMELEC personnel during the

election period. Thus, Benipayos order reassigning

petitioner from the EID to the Law Department doesnot violate Section 261 (h) of the Omnibus Election

Code. For the same reason, Benipayos order

designating Cinco Officer-in-Charge of the EID is

legally unassailable. (Matibag v. Benipayo, 380

SCRA 49, April 2, 2002, En Banc [Carpio])

May the appointment of a person assuming a

position in the civil service under a completed

appointment be validly recalled or revoked?

Held: It has been held that upon the issuance of anappointment and the appointees assumption of the

position in the civil service, he acquires a legal right

which cannot be taken away either by revocation of

the appointment or by removal except for cause and

with previous notice and hearing. Moreover, it is well-

settled that the person assu