LAW OF PUBLIC OFFICES AND PUBLIC OFFICERS

LAW OF PUBLIC OFFICES AND PUBLIC OFFICERSPublic Office- it is 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 creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by the individual for the benefit of the public. (Fernandez vs. Sto. Tomas, 242 SCRA 192)1. DEFINITION AND GENERAL PRINCIPLES

Elements of Public OfficeIt must be created by law or by ordinance authorized by law;It must possess some sovereign functions of government to be exercised for public interest;The functions must be defined, expressly or impliedly, by law;

4. The functions must be exercised by an officer directly under the control of the law, not under that of a superior officer, unless they are functions conferred by the law upon inferior officers, who, by law, are under the control of the superior.5. It must have some permanency or continuity, not temporary or occasional. (State vs. Hawkins, 257 Pac. 411, 53 A.L.R. 583)

How is a Public Office created?-it is created either by the Constitution, by statute or by law.Example:Offices created by the Constitution - The three independent commissions; the Office of the Ombudsman; the Office of the President; the Legislature and the Supreme Court.

Statutory offices - Metro Manila Development Authority, National Food Authority, National Labor Relations Commission, Central Bank of the Philippines.Offices created by virtue of validly delegated power - The Philippine Overseas Employment Administration (POEA) was created by virtue of Executive Order No. 797 dated May 1, 1992. POEA took over the functions of the Overseas Employment Division Board. In turn, Executive Order No. 247 dated July 24, 1987, granted additional powers and functions to the POEA.

Public OfficerGenerally, it refers to an individual invested with a public office.When used under the Revised Penal Code, it refers to any person, who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippines.

The term public officer, as it is understood under Section 2, Republic Act No. 3019, includes elective and appointive officials and employees, permanent or temporary, whether in the classified, or exempt service, receiving compensation, even nominal from the government.

Public Official-is an officer of the Government itself, as distinguished from the officers and employees of instrumentality of government. Hence, the duly authorized acts of the former are those of the government instrumentality which may have a personality of its own, separate and distinct from that of the government, as such. (Gonzales vs. Hechanova, 9 SCRA 230 [1964])

Distinguish Public Office from EmploymentAn office is a public position created by the Constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed.An employment is an agency, for a temporary purpose, which ceases when that purpose is accomplished. (Groves vs. Borden, 169 N.C. 8, 84. S.E. 1942; Lasher vs. People, 183 III. 226, 55 N.E. 663)

Distinguish an Officer form an EmployeeAn officer is distinguished from a mere employee in the sense that: (1) His position has greater importance, dignity and independence; (2) That he is required to take an official oath, and to give an official bond; (3) He has greater liability to account for misfeasance or nonfeasance in office; (4) That his tenure of office is usually different from that of an ordinary employee. (Martin, citing Goodnow, Comparative Administrative Law, Vol.II, 3)

Distinguish Public Office from ContractOFFICECONTRACTIt is a creation of sovereignty.It is more lasting in nature.Its object is to carry out sovereign as well as governmental functions which involves even persons who are not parties to the agreement.Contract arises from the agreement or will of the parties.The effectivity of the contract may be for a long period of time or short period of time, as may be agreed upon by the parties.The obligations arising from a contract is, as a rule, enforceable only as between the parties to the contract. (Article 1311, New Civil Code)

Classification of a Public OfficerExecutive Officers- Those whose duties are mainly to cause the laws to be executed. (Mechem, Pub. Off., Section 18)Legislative Officers- Those whose duties relate mainly to the enactment of laws. (Ibid., Section 9)Judicial Officers- Those whose duties are to decide controversies between individuals and accusations made in the name of the public against persons charged with a violation of the law. ( Ibid., Section 20)

De Jure or De FactoOfficer De Jure- An officer de jure is one who has the lawful right to the office in all respects, but who has either been ousted from it, or who has never actually taken possession of it. (Mechem, Pub. Off., Section 326)Officer De Facto- An officer de facto is one who has the reputation of being the officer he assumes to be, and yet, is not the officer in point of law. (Ibid., Section 326)

Other Classifications:1. Ministerial officers- Those whose duty is to execute the mandates, lawfully issued, of their superiors. (Ibid., Section 21)2. Special agent- It is, in the sense in which these words are employed in Article 1903 of the Civil Code, one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official. (Merritt vs. Govt. of the P.I., March 24, 1924)

3. Notary public- Is a public officer whose function is to attest and certify, by his hand and official seal, certain classes of document, in order to give them credit and authenticity in foreign jurisdictions; to take acknowledgements of deeds and other conveyances, and certify the same; and to perform certain official acts, chiefly in commercial matters, such as the protesting of notes and bills, the noting of foreign drafts, and marine protests in cases of loss or damage. (46 C.J.S. 501)

Nature of the Office of the Notary PublicNotaries public are public officers, but not in the sense that such term is used in the Administrative Code, because, while it is true that they perform necessary public duties, however, such duties are not in the discharge of governmental functions. They are not necessary to the administration of the government. Their office exists for the benefit and convenience of the public. They receive their fees from the party, whether it is the government itself or private individual, for whom the service is rendered.

A lawyer, is the first and foremost an officer of the court, although not necessarily a public officer. His duties to the court are more significant than those which he owes his client. (Salcedo vs. Hernandez, 61 Phil. 724; Coff- Perez vs. Lantin, 24 SCRA 391[1968])

2. CHARACTERISTICS OF A PUBLIC OFFICEPublic office is a public trust- Under this principle, public officials in all the leaders of our government should always remember that they were merely entrusted by the people to perform the duties and responsibilities of their offices for a fixed period of time.Public office is not private property- It cannot be treated as a personal possession, legacy or gift. It is not transferrable to another and it must be relinquished at the end of the term.

c. A public office, like public trust, is built and founded by the people themselves- Trust, as it connotes, is reposed only to those who deserve the trust. Just as the people is the creator of that trust, so must the people have the right to withdraw it when there is no more reason for its continuity.d. There can be no vested right in the public office or its salary- At the will of the legislature, a public office may be changed or even abolished. Besides such abolition, its term, compensation and powers may be validly reduced even over the objection of the incumbent.

3. REQUIREMENTS FOR PUBLIC OFFICE: (a) Appointment; (b) Designation; (c) CommissionAppointment is the selection, by the authority vested with power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security and tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. (Sevilla vs. Court of Appeals, G.R. No. 88498, June 9, 1992, First Division, Grio Aquino, J.) Distinguish Appointment from Designation

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In these sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named. (Ibid.) Furthermore, the designation merely connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment.

It does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position. Without an appointment, the designation does not entitle the officer to receive the salary of the position. The legal basis of an employees right to claim the salary attached thereto is a duly issued and approved appointment to the position, and not a mere designation. (National Amnesty Commission vs. Commission on Audit, G.R. No. 156982, September 8, 2004)

Who Exercises Appointing Power?The determination of who among the several candidates for a vacant position has the best qualifications, is vested in the sound discretion of the department head or appointing authority and not in the Civil Service Commission. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, and so forth, may be valuable but intangibles like resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests of the service are also available.

Given the demands of a certain job, who can do it best should be left to the head of the office concerned provided the legal requirements for the office is satisfied. The Civil Service Commission cannot substitute its judgment for that of the head of office in this regard. (Espaol vs. Civil Service Commission, G.R. No. 85479, March 3, 1992, En Banc, Regalado, J.)

When does an Appointment Take Effect?CSC Resolution No. 91- 1631 expressly provides that in no case shall an appointment take effect earlier than the date of its issuance.

Distinguish the following terms: (1) Appointment; (2) Commission; (3) DesignationAPPOINTMENTDESIGNATIONCOMMISSIONIt is the selection, by the authority vested with the power of an individual who is to exercise the power of a given office. (Binamira vs. Garucho, 188 SCRA 154)Connotes merely the imposition by law of additional duties on an incumbent official. (Ibid.)Is the written evidence of the appointment.

CLASSIFICATION OF APPOINTMENT: (A) REGULAR APPOINTMENT; (B) AD INTERIM APPOINTMENT; (C) PERMANENT APPOINTMENT; (D) TEMPORARY APPOINTMENTREGULARAD INTERIMIt is an appointment made by the President while Congress is in session after the nomination is confirmed by the Commission on Appointments. It continues until the end of the term.It is an appointment made while Congress is not in session, before confirmation by the Commission on Appointments. It is immediately effective and ceases to be valid if disapproved or bypassed by the Commission on Appointments upon the next adjournment of Congress.

Distinguish Regular from Ad Interim Appointment

Nature of an Ad Interim Appointment-An ad- interim appointment is permanent in nature, and the circumstance that it is subject to a confirmation by the Commission on Appointments does not alter its permanent character. (Summers vs. Ozaeta, G.R. No. L- 1534, October 25, 1948; Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court, 140 SCRA 22)

Distinguish Permanent Appointment from Temporary AppointmentPermanent Appointment - one issued to a person who has met the requirements of the position to which appointment is made, in accordance with the provisions of the Civil Service Act and the Rules and Standards promulgated in pursuance thereof.

Temporary Appointment- one who holds temporary appointment has no fixed term of office and employment can be terminated at the pleasure of the appointing authority, there being no need to show that the separation is for cause (San Pedro vs. Civil Service Commission, G.R. No. 1003321 February 12, 1992, En Banc). Hence, in the absence of appropriate eligible and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility: Provided , that such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. (Chua vs. Civil Service Commission, G.R. No. 88979, February 7, 1992, En Banc, Padilla, J.)

Should an appointee with a temporary status possess the civil service eligibility required?Under Section 25, Presidential Decree 807, otherwise known as the Civil Service Decree of the Philippines, an appointee with a temporary status need not possess the civil service eligibility required by the position provided he meets the following qualifications: (a) it is necessary in the public interest to fill a vacancy; (b) there are no appropriate eligibles; (c) the temporary appointment shall not exceed twelve months; and (d) he may be replaced sooner if a qualified civil service eligible becomes available. (Torio vs. Civil Service Commission, G.R. No. 99336; Espanola vs. Civil Service Commission, G.R. No. 100178, June 9, 1992, En Banc, Gutierrez, Jr., J.)

Is a person temporarily appointed to a Civil Service position entitled to security to tenure even if he lacks the needed qualifications for the said position?No. The holder of the position can only enjoy security to tenure if he or she possesses the qualifications and eligibility prescribed for it. (House of Representatives vs. Loanzon, G.R. No. 168267, February 16, 2006)

Who should be given preference for appointment to new positions?Section 4 of Republic Act No. 6656 provides: Officers and employees holding permanent appointments shall be given preference for appointment to the new positions in approved staffing pattern comparable to their former positions or in case there are not enough comparable positions, to positions next lower in rank. (Torio vs. Civil Service Commission, G.R. No. 100178, June 9, 1992, En Banc, Gutierrez, Jr., J.) REASON: The preference given to permanent employees assumes that employees working in Department for longer periods have gained not only superior skills but also greater dedication to the public service. (Ibid.)

If after considering all the current employees, the Department Secretary cannot find among them the person he needs to revive a moribund office, or to upgrade second rate performance, can he reach out to other departments or to the private sector in choosing a person he needs?The law does not preclude the infusion of new blood, younger dynamism or necessary talents into the government office. If, after considering all the current employees, the Department Secretary cannot find among them the person he needs to revive a moribund office or to upgrade second rate performance, there is nothing in the Civil Service Law to prevent him from reaching out to other Departments or to the private sector provided all his acts are bona fide and for the best interest of the public service and the person chosen has the needed qualifications. (Ibid.)

5. DIFFERENT STEPS IN THE PROCESS OF APPOINTMENTFor regular appointments which need confirmation of CAFor appointments which do not need confirmation of CAFor appointments to the career service of the civil serviceNomination by the PresidentConfirmation by the CAIssuance of the commissionAcceptance by the appointee - In case of ad interim appointments, the nomination, issuance of the appointment and acceptance by the appointee precede the confirmation by the CAAppointment by appointing authorityIssuance of the commissionAcceptance by the appointee - Acceptance of the appointment by the appointee is the last act that completes the appointing process. (Lacson vs. Romero, 84 Phil. 740)1. An appointment to the career service of the Civil Service is not deemed complete until attestation approval by the Civil Service Commission. Without the favorable certification or approval of the CSC, no title to the office can be deemed to be permanently vested in favor of the appointee, and the appointment can still be revoked or withdrawn by the appointing authority.

Can a person be compelled to accept an office?No. REASON: There is no law which can compel a person to accept an office except as may be required under Section 4, Article II of the 1987 Constitution which provides as follows: Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service.

Appointment has been made and the appointee has assumed the duties and functions of the position in the Civil Service Commission. Can the said appointment be revoked by the appointing authority on the ground that the protestant is more qualified than the first appointee?No. The person so appointed acquired a legal right to his position which is protected by law and the Constitution.

6. WHAT IS THE BEST EVIDENCE OF AN APPOINTMENT?The best evidence of an appointment is his written commission. (The delivery of the commission is the last act required by the appointing power and the same completes the appointment.)

7. KINDS OF ACCEPTANCEExpress- It may be verbally or in writing; and

Implied- If the officer is in the actual occupation and exercise of the office, his acceptance of it would be presumed. (Mechem, Pub. Off., Section 252)

How is a Public Officer chosen?A public officer is chosen either by appointment or election.

8. DISTINCTION, APPOINTMENT & ELECTIONIn appointment, the person who is to exercise the function of a given office is made by the executive officer, board, or body, to whom the power to designate is given (Appari vs. Court of Appeals, 127 SCRA 231). In election, the choice is made by an enfranchised by virtue of the right of suffrage.

Example of elective officials:

President, Vice-President, Members of Congress, Governor, Vice-Governor, Board Members, Mayor, Vice-Mayor, Councilors, Barangay Chairman and Councilmen

Example of Appointed Officers by the President

Cabinet members, Commissioners of different commissions, ambassadors, consuls, officers of the AFP, from rank of colonel or naval captain, all other officers of the government whose appointments are not provided by law, and those whom he may be authorized by law to appoint.

Can the power of appointment be delegated? Why?No, because appointment involves the exercise of discretion.

Is the presidential power of appointment absolute?No, it is subject of the following limitations: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 forces from the rank of colonel and naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all 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; or in the heads of department, 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.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as members of the Constitutional Commissions, or to the Office of the Ombudsman, or as secretaries, undersecretaries, chairman or heads of bureaus or offices including government- owned or controlled corporations and their subsidiaries. (Section 13, 2nd paragraph, Article VII, 1987 Constitution)

Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

Appointments of an Acting President shall remain effective, unless revoked by the elected President within 90 days from his assumption or re- assumption of office. (Section 14, Article VII)The appointees of the President must possess the required qualifications. The appointee concerned may be questioned in appropriate court proceedings.

When is confirmation of the Commission on Appointments required?It is required only for the offices mentioned in Section 16, first sentence, Article VII of the 1987 Constitution, to wit:Code: H-A-O-AH -eads of the executive department

A -mbassadors, or other public ministers and consuls

O -fficers of the armed forces from the rank of colonel or naval captain

A - nyone whom he can appoint by authority to law.

When is confirmation of the Commission on Appointments not required?Other officers whose appointments are vested in him in this Constitution.All other officers of the government whose appointments are not provided by law.

Does the appointment of the Chairman of the Commissioners of the Commission on Human Rights need the confirmation of the Commission on Appointments?No. REASON: The position of the Commission on Human Rights is not among the positions mentioned in Section 6, first sentence, of Article VII of the 1987 Constitution. (Bautista vs. Salonga, 72 SCRA 169)

Does the appointment of sectoral representatives need the confirmation of the Commission on Appointments?Yes, because this position is covered by Section 16, first sentence, of Article VII of the 1987 Constitution. (Quintos- Deles vs. Commission on Appointments, 177 SCRA 259)

Does the appointment of Chairman and commissioners of the NLRC need the confirmation of the Commission on Appointments?No. They are not among the officers mentioned in Section 16, first sentence.

The appointment was described as permanent in the space provided for in Civil Service Form No. 33, but the words Approved as Temporary was stamped in the appointment. The appointee is qualified and other legal requirements as satisfied. Is the Civil Service Commission authorized to determine the kind or nature of the appointment extended by the appointing officer, or will it just attest to the appointment in accordance with Civil Service Laws?The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing power. What it can do is only either to approve or review the appointment to see to it that the requirements of the Civil Service Commission are complied with. When all legal requirements are complied with and the appointee is qualified what the Civil Service Commission has to do is only to attest to the appointment. (Luego vs. Civil Service Commission, 143 SCRA 327)

Much later, in Lopez vs. Civil Service Commission (G.R. No. 92140, February 19, 1991), the Supreme Court ruled that what the Civil Service Commission may do is just to determine whether or not the appointee possesses the qualifications and requisite eligibility. If the appointee is qualified and eligible, his appointment is approved, and if not, his appointment is disapproved. A month after the decision in Lopez vs. Civil Service Commission, the Supreme Court elucidated further the ruling in Lopez and said: As long as the appointee possesses the minimum qualifications prescribed by law or regulations, there is no question that his appointment must be respected by the Civil Service Commission even if it be proved that there are others with superior credentials. However, this rule does not cover those cases where it is found by the Commission, after examining the appointment papers, that the appointee does not satisfy the minimum qualifications for the position in question. In these cases, the Commission would be well within its right- and responsibility- in refusing to approve the appointment. (Cortes vs. Civil Service Commission, G.R. No. 92673, March 13, 1991, En Banc, Cruz, J.)

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Can the Civil Service Commission revoke an appointment in the belief that another is better qualified than the appointee?The Supreme Court ruled: The Civil Service Commission has no authority to revoke an appointment simply because it is believed that another is better qualified than the appointee for that would have constituted an encroachment of the discretion vested solely in the appointing authority. The Commission cannot exceed its power by substituting its will for that of the appointing authority. (Lopez vs. Civil Service Commission, G.R. No. 92140, February 19, 1991, En Banc, Gutierrez, Jr., J.)

9. WHAT IS REQUIRED FOR AN OFFICE TO BE FILLED UP EITHER BY AN APPOINTMENT OR BY ELECTION?The office to be filled up should be vacant following the principle that no person may be an appointed to an office which is not vacant no matter how qualified he is for a certain position. (Jacom vs. Regalado, 24 SCRA 73)

Do the courts have jurisdiction over void appointments?Yes. While an appointment is an essentially discretionary executive power, it is subject to the limitation that the appointee should possess none of the disqualifications but all the qualifications required by law. Where the law, prescribes certain qualifications for a given office or position, courts may determine whether the appointee has the requisite qualifications, absent which, his right thereto may be declared void. (Engano vs. Court of Appeals, G.R. No. 156959, June 27, 2006)

When does Vacancy exist?It exists when there is no person lawfully authorized to assume and exercise at present the duties of the office.

Different Kinds of VacanciesCODE: O-C-A-AO-riginal (There is an office which is created but no one has as yet been chosen to fill it.)C-onstructive (In this kind of vacancy, the incumbent has no legal right to the office and he may be replaced.A-ccidental (When on account of death, resignation, removal or abandonment, the incumbent is separated from the service.A-bsolute (There is no successor yet to the incumbent whose term expired.)

10. ELIGIBILITY AND QUALIFICATIONA. MEANING OF THE TERM QUALIFICATIONIt is understood in different senses: (1) It may refer to the qualities or endowments required of the public officer in order that he may be considered eligible for public office (i.e. age, citizenship, and academic qualifications); (2) It may refer to the act of enabling a person to perform the duties and functions of his office (i.e. taking the oath of office).In the first one, the person appointed or elected must possess the prescribed qualifications at the time of his appointment or election and during the period of the official relationship.

In the second, the failure to perform an act required by law could affect the officers title to the given office. An oath of office is a qualifying requirement for a public office (Lecaroz vs. Sandiganbayan, G.R. No. 130872, March 25, 1999). Under Batas Pambansa Blg. 881, Section 11, thereof, it is provided that the office of any official elected who fails or refuses to take his oath office within six months from his proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his control. [Example: (1) Taking an oath or affirmation to uphold and defend the Constitution; (2) Accountable officers are required to be properly bonded]

Can property qualifications be imposed for the exercise of the right to run for public office?A law which required all candidates to post a P20,000.00 bond upon the filing of their certificates of candidacy, and which provided its confiscation if they did not obtain at least 10% of the total votes cast in the constituency where they were running, was declared unconstitutional and null and void by the Supreme Court (Maquira vs. Borra, 15 SCRA 7). REASON: The said law is inconsistent with the nature and essence of the Republican System and the principle of social justice.

Who prescribes the qualifications?Qualifications may be prescribed by the Constitution or by statute. If the same are prescribed by the Constitution, the qualifications are specifically enumerated and the legislature cannot impose additional qualifications. If the qualifications are prescribed by law, it must do so in such a detailed manner so as not to leave any discretion to the appointing power in making a choice of the person to be appointed. Moreover, the qualification prescribed must be relevant to the position.Example:On The Matter Of Imposing Additional Qualifications

Can Congress pass a law requiring a college degree as an added qualification to be senator or congressman?No, because the said law is unconstitutional.

Can Congress pass a law requiring a college degree as an added qualification of the President and Vice- President of the Philippines?No, because the said law is unconstitutional.

Can the Constitutional Convention approve a constitutional provision requiring additional qualifications of a President, Vice- President, Senator and Congressman?Yes, because the power to amend the Constitution has been entrusted by the people to the delegates of the Constitutional Convention whom they have chosen to represent them in the said convention. Moreover, when the Constitution, drafted and approved by the said Constitutional Convention, was duly approved in a plebiscite, the people have necessarily approved the said constitutional provision.

Can the Legislature prescribe qualifications in a general manner?Yes. This happens if the intention of the legislature is to allow a widest possible field of choice.

When can the legislature prescribe additional qualifications?This becomes possible (1) when the Constitution does not prescribe a qualification or qualifications; or (2) When the Constitution prescribes only for minimum qualifications.

What is the restraint or limitation to Congress when it exercises its right to prescribe qualifications or disqualifications?The qualifications or disqualifications it prescribes should not violate the Constitution. Otherwise, it can be assailed as unconstitutional. Hence, if a law provides that the mere filing of a criminal information for disloyalty is prima facie evidence of guilt which is sufficient to disqualify a person from running for public office, the said law is, as it was considered, unconstitutional (Dumdao vs. Comelec, 95 SCRA 400). REASON: It violates the principle that a person is presumed innocent until his guilt is proved beyond reasonable doubt.

B. QUALIFICATIONS ARE CONTINUING REQUIREMENTSWhen should the prescribed qualifications be possessed by a person, who is either appointed or elected?They should be possessed on the date indicated by the Constitution or by law, and they are continuing requirements which means that they must be possessed not only on the date of selection or assumption but for the full duration of the officers incumbency. (Aguila vs. Genato, 103 SCRA 380)

Example: Under the 1987 Constitution, the age qualification must be possessed on the day of the election, not on the day of the proclamation of the winners of the board of canvassers, which was the reckoning period used in the case of Espinoza vs. Aquino. (Electoral Case No. 9, Senate Electoral Tribunal)What happens if any of the qualifications is lost during the tenure?The right to the office is automatically forfeited.

11. DISQUALIFICATIONSWho prescribes the disqualifications?Disqualifications may also be prescribed by the Constitution or by statute.

SPECIFIC DISQUALIFICATIONS UNDER THE CONSTITUTIONJudicial DepartmentThe members of the Supreme Court and other courts established by law shall not be designated to any agency performing quasi- judicial or administrative functions. (Section 12, Article VIII)Executive Department1. The president, Vice- President, the Members of the Cabinet, and their deputies and assistants shall not, unless otherwise provided in the Constitution, hold any other office or employment during their tenure. (Section 13, Article VII)

2. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in other 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. They shall strictly avoid conflict of interest in the conduct of their office.

3. The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen, or heads of bureaus or offices, including government- owned or controlled corporations and their subsidiaries.

Legislative Department1. 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. (Section 13, Article VI)

Constitutional Commissions1. No member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government- owned or controlled corporations of their subsidiaries. (Section 2, Article IX)

2. 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.3. The Chairman of the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. (Article IX-B, Section 1[2])

Ombudsman and his deputiesThe Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office. (Section 11, Article XI)

NOTE: The National Amnesty Commission ex officio members representatives are covered by the constitutional prohibitions against holding multiple positions in the government and receiving double compensation because there is no law or administrative order creating a new office or position and authorizing additional compensation therefore. (National Amnesty Commission vs. Commission on Audit, G.R. No. 156982, September 8, 2004)

12. FAILURE TO QUALIFYDoes the delay in qualifying means that the office is automatically forfeited?No. It will only give a justification to appropriate superior authorities to prevent entry into the office until such time that the delay is explained by the appointee. Hence, mere delay in the taking of an oath does not mean that the office is rejected and when the oat is taken, the default is waived. However, if the law requires qualification within a specified time and provides further that failure to do so will result in automatic loss of the right to the office, this has to be complied with. Otherwise, the right to the office is automatically lost.

13. DE FACTO OFFICERS; DISTICTIONS, DE JURE OFFICER AND DE FACTO OFFICERDe Facto OfficerA person is considered de facto officer:When, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be;When, there is a color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement, or condition, as take an oath, give a bond, or the like;

3. When he exercised his duties under a color of a known appointment or election; or that there was a want of power, in the electing or appointing body; or there is some defect or irregularity in its exercise, and such ineligibility, want of power, or defect is unknown to the public. For said reasons, the acts of the de facto officer are void.4. When there was color of an election or an appointment but such is based on an unconstitutional law. Here, the person exercising the duties is considered de facto officer before the said law is adjudged to be unconstitutional. (Martin, citing Conn, 449, 9 Am. Rep. 409; Luna vs. Rodriguez, 37 Phil. 186)In recent jurisprudence, the following are considered a de facto officer:1. A public official or employee who assumed office under an incomplete appointment is merely a de facto officer for the duration of his occupancy of the office. (Corpuz vs. Court of Appeals, 285 SCRA 23)

2. A de facto officer is defined as one who derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and whose appointment is valid on its face. (Dimaandal vs. Commission on Audit, 291 SCRA 322)

3. A de facto officer is one who is in possession of an office, and is discharging its duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent be not a mere volunteer. (Ibid.)

4. A de facto officer is one who is in possession of an office in the open exercise of its functions under color of an election or an appointment, even though such election or appointment may be irregular

What is the basis of the rationale of the de facto officer?It is unreasonable to require the public to inquire into the title of an officer, or compel him to show title because the public do not have time and opportunity to investigate the title of the incumbent. As a matter of policy and necessity, the doctrine serves to protect the public and the individuals whenever their interests are involved in the official acts of persons exercising the duties of an office. (Tayko vs. Capistramo citing State vs. Caroll, 38 Conn. 449, 9 Am. Rep. 409)

Are the acts of a de facto officer, insofar as they affect the public, valid?They are valid and legal insofar as they affect the public. What are the liabilities of a de facto officer?He is liable upon his bondHe is liable for his negligenceHe is liable for his embezzlementHe is liable for malfeasance in his assumed office(Mechan on Public officers, 336- 338, 341)

Elements of a de facto officeCODE: VACV- alid and legitimate officeA- ctual possession of said office in good faithC- olor of title to the office or general acquiescence by the publicWhen is there a color of title to the office?Same answer as in the first question and answer, No. 13, as above mentioned.

Distinguish de jure officer from that of a de facto officerDe Facto OfficerDe Jure OfficerA de facto officer may be ousted in a direct proceeding against him.

A de facto officer has the possession and performs the duties under color of right, without being legally qualified to act. (Martin citing Takyo vs. Capistrano, 53 Phil. 866)A de jure officer cannot be removed.

A de jure officer has the lawful right or title without the possession of the office.

EXAMPLES OF THE ELEMENTS OF A DE FACTO OFFICEValid and LegitimateIf Mr. A was not validly elected or appointed, or he is not eligible, and he occupies a legitimate office, is he a de jure or de facto officer?- He is a de facto officer.Same example but the office itself is void, but Mr. A was validly elected or a appointed, is he a de jure or de facto officer?- He is neither a de facto officer nor a de jure officer for no office at all exists. Suppose Mr. A, a candidate for public office was proclaimed in an election which was irregularly held, is he a de facto officer?- He is a de facto officer before she said election is nullified.

2. Color of Title- When a judge in good faith remains in officer after his previous valid appointment has lapsed and the public continues to acquiesce his acts, and during the time he was regarded as a judge, his successor has not been appointed, he is considered as a de facto judge.Another example is a case where one is qualified and eligible but he was appointed by one who was not empowered or authorized to make an appointment.A mayor who insisted to remain in his office despite the forfeiture of his office is a de facto officer. 3. Actual Possession of the Office- A decision promulgated by a judge who already ceased to be a judge of the Court presided by him, is void. REASON: He has no more authority to promulgate the said decision.The decision is likewise void if after he ceased as a judge, it was promulgated under another judge. (Solis vs. Court of Appeals, 38 SCRA 53)

RIGHT TO COMPENSATIONCan a de facto officer claim salary or compensation for salaries rendered by him as such?- The rule in Monroy vs. Court of Appeals is to the effect that a de facto officer, not having good title take the salaries at his risk and must therefore account to the de jure officer for whatever amount of salary he received during the period of his wrongful retention of public office. (20 SCRA 620)The said rule, however, does not apply if there is no de jure public officer, in which case, that de facto officer shall be entitled to the salaries prescribed by law for the given office during the period when he actually discharged the functions of said office.

NOTE: In the following cases, an officer, although de facto, was declared to be entitled to compensation:RODRIGUEZ vs. TAN (91 Phil. 724)- The successful Protestant was claiming to recover the salaries collected by the protestee before he was ousted from the Senate. This was denied. REASON: The protestee was duly proclaimed as Senator and he assumed office as required by law, hence, he is entitled to compensation, emoluments and allowances which our Constitution provides for one position.MENZON vs. PETILLA (197 SCRA 251)- Petitioner assumed the office of the Vice- Governor under color of a known appointment. He was appointed by the DILG Secretary, and thereafter, he took his oath of office. Later, the validity of his appointment became an issue and the recognition withdrawn. The Supreme Court ruled that it is iniquitous to deny the salary due to the petitioner for services be actually rendered as the Acting Vice- Governor of Leyte.

Can a de facto officer be made to reimburse funds disbursed by a de facto officer during his term of office?- Yes. REASON: Because his acts are as valid as a de jure officer.Is a de facto officer subject to the same liabilities that are imposed to a de jure officer?- Yes. REASON: He assumed the office at his own risk and he must be prepared to be held responsible for the performance of his duties.

ACTION TO TAKE AGAINST DE FACTO OFFICERCan a de facto officer be ousted in a collateral action?-A de facto officer may be ousted in a direct proceeding, not in a collateral action. A direct and authorized proceeding is Quo Warranto under Section 1, Rules 66 of the New Rules of Court which provides as follows:SECTION 1. Action by Government against individuals- An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: A person who usurps, intrudes into, or unlawfully holds or exercise a public office, position or franchise;A public officer who acts as a corporation which, by the provision of law, constitutes a ground for the forfeiture of his office;An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. (1a)

14. COMMENCEMENT OF OFFICIAL RELATIONSEarlier, it was mentioned that a public officer is chosen either by appointment or election. It is also through appointment or election that official relations are commenced?-Yes.NOTE: Before proceeding to the eight important principles (which is the next topic), remember thoroughly the discussion of the requirements for public office (the preceding topic), particularly the different kinds of appointments, distinction between appointment, designation and commission, distinction between appointment and election, different kinds of vacancies and eligibility and qualification.

15. EIGHT (8) IMPORTANT PRINCIPLESCODE: AT-NEXT-DM-PML1.) Appointment2.) Torio vs. CSC3.) The next-in-rank rule4.) De facto/ De jure5.) Matters that fall within the exclusive jurisdiction of the CSC6.) Kinds of Personnel Actions7.) Modes of Termination of official relationship8.) Liability of Public Officers

EXPLANATION OF EACH OF THE SAID PRINCIPLESAppointment7 PRINCIPLES REGARDING POWER AND AUTHORITY TO MAKE AN APPOINTMENTEssentially a discretionary powerThe appointing authority, not the CSC, determines who, among the several candidates for a vacant position, has the best qualificationCSC has no authority to direct the appointing authority to appoint a certain personOnce appointment is issued and the moment the appointee assumes a position in the civil service under a complete appointment, he acquires a legal, not merely equitable right which is protected by the Law and the Constitution.

e) Once the discretionary power of appointment has been exercised and the appointee assumed the duties and functions of the position, the said appointment cannot be revoked by the appointing authority, on the mere ground that the protestant is more qualified than the first appointee.f) An appointee with a temporary status need not possess the Civil Service eligibility required by the position. This is subject to the qualifications in Torio vs. CSC. g) The next in rank rule is not absolute.2. Torio vs. CSCAn appointee with a temporary status need not possess the Civil Service eligibility required by the position provided he meets the following qualifications:It is necessary in the public interest to fill up the vacancyThere are no appropriate eligiblesThe temporary appointment shall not exceed 12 monthsHe may be replaced sooner if a qualified Civil Service eligible becomes available. (Sec. 25, Presidential Decree No. 807; Torio vs. CSC, G.R. No. 100198, June 9, 1992)

3. The Next-In-Rank RuleThis may be disregarded even in case of promotions, and even in promotions, it can be disregarded for sound reasons make known to he next-in-rank.The appointing authority under the CSC, is allowed to fill vacancies by promotion, transfer of present employees, reinstatement, re-employment 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 BY PROMOTION. THE APPOINTING AUTHORITY IS GIVEN A WIDE DISCRETION TO FIL A VACANCY FROM AMONG THE SEVERAL ALTERNATIVES PROVIDED BY LAW. (Espanol vs. CSC, G.R. No. 85479, March 3, 1992)

4. De Facto/ De JureAlready discussed. Just remember the following important points thus:Distinctions, de jure and de facto officerElements of a de facto office: (a) Valid and legitimate office; (b) Actual possession of his office; (c) Color of title to the officeLiabilities of a de facto officerA de facto officer may be ousted in a direct proceeding, not in a collateral action.Example of direct proceeding: Quo Warranto5. Rationale for allowing a de facto officer to recover compensation6. Basis of the rationale of the de facto officer

5. Matters that fall within the exclusive jurisdiction of the CSCDisciplinary cases, and cases involving personal actions affecting employees in the civil service including appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion and separation, and, of course, employment status and qualification standards, are within the exclusive jurisdiction of the Civil Service Commission.6. Kinds of personnel actionsCODE: PAT-RE-RE-RE-DEP- romotionA- ppointment through certificationT- ransferRE- employmentRE- assignmentRE- instatementDE-tail

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PromotionAppointment ThroughCertificationTransferReemploymentIt is a movement from one position to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay.It is issued to a person who has been selected from a list of qualified persons certified by the CSC from an appropriate register of eligibles, and who meets all the qualifications prescribed for the position.It is a movement from one position to another which is of equivalent rank, level or salary without break in service. Transfer may be imposed as an administrative penalty under current Civil Service Rules.Names of persons who have been appointed permanently to positions in the career service and who have been separated as a result of reduction in force and/ or reorganization, shall be entered in a list from which selection from reemployment shall be made.

ReassignmentReinstatementDetailAn employee may be reassigned from one organizational unit to another in the same agency, provided that such reassignment shall not involve a reduction in rank, status or salary.Any person who has been permanently appointed to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified.It is the movement of an employee from one agency to another in the same agency, provided that such reaasignment shall not involve reduction in rank, status or salary.This is a prerogative of the CSC.

THE NEXT-IN-RANK RULE IS NOT ABSOLUTEThis may be disregarded even in case of promotions. The next in rank rule is not absolute. It only applies in case of promotions. It only applies in cases of promotions. And even in promotions it can be disregarded for sound reasons made known to the next-in-rank. The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer, or present employees, reinstatement, re-employment, 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 by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided by law. (Espanol vs. Civil Service Commission, G.R. No. 85479, March 3, 1992, En Banc, Regalado, J.)

Must all appointments involved in a chain of promotions be submitted for approval of the Civil Service Commission?

All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. The disapproval of the appointment of a person proposed to a higher positions invalidates the promotion of those in the lower positions and automatically restores them to their former positions. However, the affected persons are entitled to payment of salaries for services actually rendered at a rate fixed in the promotional appointments. This is known as the Automatic Reversion Rule. (Section 13, Omnibus Rules Implementing Book V, E.O. 292)

What are the requisites in order that said rules will apply?There must be a series of promotions.All promotional appointments are simultaneously submitted to the Commission for approval.The Commission disapproves the appointment of a person to a higher position. (Divinagracia vs. Sto. Tomas, G.R. No. 110954, May 31, 1995)

APPOINTMENT THROUGH CERTIFICATIONWhat is required for this kind of appointment?The person to be selected or selected is in a list of qualified persons certified by the CSC from an appropriate register in eligibles.The person to be selected or selected meets all the qualifications prescribed for the position.

TRANSFERIs the transfer of an employee from one position to another a violation of his security of tenure even if results to his promotion?-Yes, if the said employee is removed without his consent. REASON: That amounts to removal from office.Is it possible that an employee is permanently transferred to another position without violating his security of tenure?This is possible if an employee is lawfully removed first from his position, and thereafter, he is appointed to another position which is of equivalent rank, level or salary.