agra public officers reviewer 11.15.13

8/9/2019 AGRA Public Officers Reviewer 11.15.13

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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 trustfor 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 bythe 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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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 ofthe 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 necessarycriterion 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 tothe 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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As to Public Office Public Employment

Key Considerations There is a delegation of some

of the sovereign functions ofgovernment 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 ofthe 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 SCRA718 (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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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 aconstitutional 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 lawa. 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 materiala. 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 orbelong 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 mereincident 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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"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, asthe 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 taskedto 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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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 ofan 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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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 termpublic 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 creationa. 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 belongsa. 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 requireda. 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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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 right1. 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 claimsthat 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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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 aquorum.

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 holdoffice.

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 beconstrued 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 unreasonableconstruction 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 silent1. 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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e. Education

1. Some statutes prescribe educational qualifications for certain offices requiringpersons possessing professional attainments.

f. Ability to read and write

1. The qualification may be lawfully made since there is no constitutionalprohibition 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 processand 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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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 heis 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 officeand 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 immediatelypreceding 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 MunicipalCircuit 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 componentcities, 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 orsangguniang 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 ElectionInspectors unless he is of good moral character and irreproachable reputation, a registered voter of


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15

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

auditingexperience 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 probityand 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


Philippines

At least 5 years judge


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,Ma

yor, 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 incapacitya. 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 atleast 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 Commission5. 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 twothings: 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 officea. 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 Presidentshall 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 byany personal or filial consideration.

b. Restriction is not applicable to:

1. Members of family who contracted marriage with anyone in position

already2. 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 feesand 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 ofimprisonment, 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 thegovernment 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 beenconferred 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 extentthat 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 department1. The power of appointment is intrinsically an executive function. Under the

principle of separation of powers, the creation of a public office is a legislativefunction; 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 successfulprotestant.

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 vacancyoccurring 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 requiredqualifications and be selected solely with a view to the public welfare.

b. Under the Constitution1. 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 asMembers 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 theend 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 beappointed 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, thecommission 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 theappointment.

d. Effects of completed appointment

1. Appointing officer’s power over the office is terminated in all cases where by lawthe officer is not removable by him. The right to the office is in the appointee.

Appointment to a position already fil led 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, andresponsibility 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 officea. 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 thefulfillment 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 orto 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 thepeace 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 thepublic 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 whenand in what manner the duty has been performed because appointment to officeaffects the public and not merely private rights.

b. Contrary view

1. The right of the appointee to be inducted depends upon the fact ofappointment, 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 complete1. 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 position1. 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 thisConstitution. 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 ofappointments 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 theJudicial 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 notsubject 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 theirrespective 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. Permanent1. 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 theoffice. (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 tobe 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. Nomination1. 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 onthe 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. Whereno 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 ofthe 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 anappropriate 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 areappointed 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 examinations1. 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 madeonly 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, orhighly 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 freedomof intercourse without embarrassment of freedom from misgiving of betrayal ofpersonal trust on confidential matters of the State. More than ordinary

confidence is required.

2. A position may be considered primarily confidential when the President, uponrecommendation of the Civil Service Commissioner, ha

agra public officers reviewer 11.15.13

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