reviewer on public officers

8/12/2019 Reviewer on Public Officers

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Reviewer on Public Officers by Atty. Edwin Sandoval

16 Votes

THE LAW OF PUBLIC OFFICERSDefine Appointment. Discuss its nature.

Held: An appointment to a public office is the unequivocal act of designating or selecting by one having

the authority therefor of an individual to discharge and perform the duties and functions of an office or

trust. The appointment is deemed complete once the last act required of the appointing authority has been

complied with and its acceptance thereafter by the appointee in order to render it effective. Appointment

necessarily calls for an exercise of discretion on the part of the appointing authority. In Pamantasan ng

Lungsod ng Maynila v. Intermediate Appellate Court, reiterated in Flores v. Drilon, this Court has held:

The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he

may exercise freely according to his judgment, deciding for himself who is best qualified among those who

have the necessary qualifications and eligibilities. It is a prerogative of the appointing power x x x.

Indeed, it may rightly be said that the right of choice is the heart of the power to appoint. In the exercise of

the power of appointment, discretion is an integral thereof. (Bermudez v. Torres, 311 SCRA 733, Aug.

4, 1999, 3rd

Div. [Vitug])

May the Civil Service Commission, or the Supreme Court, validly nullify an appointment on the

ground that somebody else is better qualified?

Held: The head of an agency who is the appointing power is the one most knowledgeable to decide who

can best perform the functions of the office. Appointment is an essentially discretionary power and must be

performed by the officer vested with such power according to his best lights, the only condition being that

the appointee should possess the qualifications required by law. If he does, then the appointment cannot be

faulted on the ground that there are others better qualified who should have been preferred. Indeed, this is

a prerogative of the appointing authority which he alone can decide. The choice of an appointee from

among those who possess the required qualifications is a political and administrative decision calling for

considerations of wisdom, convenience, utility and the interests of the service which can best be made by

the head of the office concerned, the person most familiar with the organizational structure and

environmental circumstances within which the appointee must function.

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

the appointment even if it be proved that there are others with superior credentials. The law limits the

Commissions authority only to whether or not the appointees possess the legal qualifications and the

appropriate civil service eligibility, nothing else. If they do then the appointments are approved because the


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Commission cannot exceed its power by substituting its will for that of the appointing authority. Neither can

we. (Rimonte v. CSC, 244 SCRA 504-505, May 29, 1995, En Banc [Bellosillo, J.])

Does the next-in-rank rule import any mandatory or peremptory requirement that the person

next-in-rank must be appointed to the vacancy?

Held: The next-in-rank rule is not absolute; it only applies in cases of promotion, a process which denotes

a scalar ascent of an officer to another position higher either in rank or salary. And even in promotions, it

can be disregarded for sound reasons made known to the next-in-rank, as the concept does not import any

mandatory or peremptory requirement that the person next-in-rank must be appointed to the vacancy. The

appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of

present employees, reinstatement, reemployment, and appointment of outsiders who have appropriate civil

service eligibility, not necessarily in that order. There is no legal fiat that a vacancy must be filled only by

promotion; the appointing authority is given wide discretion to fill a vacancy from among the several

alternatives provided by law.

What the Civil Service Law provides is that if a vacancy is filled by promotion, the person holding theposition next in rank thereto shall be considered for promotion.

In Taduran v. Civil Service Commission, the Court construed that phrase to mean that the person next-in-

rank would be among the first to be considered for the vacancy, if qualified. In Santiago, Jr. v. Civil

Service Commission, the Court elaborated the import of the rule in the following manner:

One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it

does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right

to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next

higher position x x x(Abila v. CSC, 198 SCRA 102, June 3, 1991, En Banc [Feliciano])

Can a person who lacks the necessary qualifications for a public position be appointed to it in a

permanent capacity? Illustrative case.

Held: At the outset, it must be stressed that the position of Ministry Legal Counsel-CESO IV is

embraced in the Career Executive Service. X x x

In the case at bar, there is no question that private respondent does not have the required CES

eligibility. As admitted by private respondent in his Comment, he is not a CESO or a member of the Career

Executive Service.

In the case ofAchacoso v. Macaraig, et al., the Court held:

It is settled that a permanent appointment can be issued only to a person who meets all the requirements

for the position to which he s being appointed, including the appropriate eligibility prescribed. Achacoso did

not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be

withdrawn at will by the appointing authority and at a moments notice, conformably to established

jurisprudence.


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The Court, having considered these submissions and the additional arguments of the parties in the

petitioners Reply and of the Solicitor-Generals Rejoinder, must find for the respondents.

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure

in its occupant even if he does not possess the required qualifications. Such right will have to depend on thenature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have

the requisite qualifications for the position cannot be appointed to it in the first place or, only as an

exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate

eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so

designated.

Evidently, private respondents appointment did not attain permanency. Not having taken the

necessary Career Executive Service examination to obtain the requisite eligibility, he did not at the time of

his appointment and up to the present, possess the needed eligibility for a position in the Career Executive

Service. Consequently, his appointment as Ministry Legal Counsel-CESO IV/Department Legal Counsel

and/or Director III, was merely temporary. Such being the case, he could be transferred or reassigned

without violating the constitutionally guaranteed right to security of tenure.

Private respondent capitalizes on his lack of CES eligibility by adamantly contending that the

mobility and flexibility concepts in the assignment of personnels under the Career Executive Service do not

apply to him because he s not a Career Executive Service Officer. Obviously, the contention is without

merit. As correctly pointed out by the Solicitor General, non-eligibles holding permanent appointments to

CES positions were never meant to remain immobile in their status. Otherwise, their lack of eligibility would

be a premium vesting them with permanency in the CES positions, a privilege even their eligible

counterparts do not enjoy.

Then too, the cases on unconsented transfer invoked by private respondent find no application in

the present case. To reiterate, private respondents appointment is merely temporary; hence, he could be

transferred or reassigned to other positions without violating his right to security of tenure. (De Leon v.

Court of Appeals, 350 SCRA 1, Jan. 22, 2001, En Banc [Ynares-Santiago])

In the career executive service, is a career executive service (CES) eligibility all that an employee

needs to acquire security of tenure? Is appointment to a CES rank necessary for the acquisition

of such security of tenure?Held: In the career executive service, the acquisition of security of tenure which presupposes a

permanent appointment is governed by the rules and regulations promulgated by the CES Board x x x.

As clearly set forth in the foregoing provisions, two requisites must concur in order that an employee in the

career executive service may attain security of tenure, to wit:

CES eligibility; and


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Appointment to the appropriate CES rank.

In addition, it must be stressed that the security of tenure of employees in the career executive service

(except first and second level employees in the civil service), pertains only to rank and not to the office or to

the position to which they may be appointed. Thus, a career executive service officer may be transferred orreassigned from one position to another without losing his rank which follows him wherever he is transferred

or reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower

salary grade, as he is compensated according to his CES rank and not on the basis of the position or office

he occupies.

In the case at bar, there is no question that respondent Ramon S. Roco, though a CES eligible, does not

possess the appropriate CES rank, which is CES rank level V, for the position of Regional Director of the

LTO (Region V). Falling short of one of the qualifications that would complete his membership in the CES,

respondent cannot successfully interpose violation of security of tenure. Accordingly, he could be validly

reassigned to other positions in the career executive service. x x x

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

may be reassigned or transferred from one position to another x x x.

One last point. Respondent capitalizes on the fact that petitioner Luis Mario M. General is not a CES

eligible. The absence, however, of such CES eligibility is of no moment. As stated in Part III, Chapter I,

Article IV, paragraph 5(c), of the Integrated Reorganization Plan

x x x the President may, in exceptional cases, appoint any person who is not a Career Executive Serviceeligible; provided that such appointee shall subsequently take the required Career Executive Service

examination and that he shall not be promoted to a higher class until he qualified in such examination.

Evidently, the law allows appointment of those who are not CES eligible, subject to the obtention of said

eligibility, in the same manner that the appointment of respondent who does not possess the required CES

rank (CES rank level V) for the position of Regional Director of the LTO, is permitted in a temporary

capacity. (General v. Roco, 350 SCRA 528, Jan. 29, 2001, 1stDiv. [Ynares-Santiago])

How are positions in the Civil Service classified? Discuss the characteristics of each.

Ans.: Positions in the Civil Service may be classified into: 1) Career Positions, and 2) Non-

Career Positions.

Career Positions are characterized by (1) entrance based on merit and fitness to be determined as far as

practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for

advancement to higher career positions; and (3) security of tenure (Sec. 7, Chap. 2, Subtitle A, Title I,

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


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The Non-Career Service shall be characterized by (1) entrance on bases other than of the usual tests of

merit or fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or

which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to

the duration of a particular project for which purpose employment was made (Sec. 9, Chap. 2, Subtitle A,

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

What is a primarily confidential position? What is the test to determine whether a position is

primarily confidential or not?

Held: Aprimarily confidential positionis one which denotes not only confidence in the aptitude of the

appointee for the duties of the office but primarily close intimacy which ensures freedom from intercourse

without embarrassment or freedom from misgivings or betrayals of personal trust or confidential matters of

state. (De los Santos v. Mallare, 87 Phil. 289 [1950])

Under theproximity rule, the occupant of a particular position could be considered a confidential employee if

the predominant reason why he was chosen by the appointing authority was the latters belief that he canshare a close intimate relationship with the occupant which ensures freedom of discussion without fear or

embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. Withal,

where the position occupied is more remote from that of the appointing authority, the element of trust

between them is no longer predominant. (CSC v. Salas, 274 SCRA 414, June 19, 1997)

Does the Civil Service Law contemplate a review of decisions exonerating officers or employees

from administrative charges?

Held: By this ruling, we now expressly abandon and overrule extant jurisprudence that the phrase party

adversely affected by the decision refers to the government employee against whom the administrative

case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank

or salary, transfer, removal or dismissal from office and not included are cases where the penalty imposed

is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days

salary(Paredes v. Civil Service Commission, 192 SCRA 84, 85)or when respondent is exonerated of the

charges, there is no occasion for appeal.(Mendez v. Civil Service Commission, 204 SCRA 965, 968) In

other words, we overrule prior decisions holding that the Civil Service Law does not contemplate a review

of decisions exonerating officers or employees from administrative charges enunciated inParedes v. Civil

Service Commission (192 SCRA 84); Mendez v. Civil Service Commission (204 SCRA 965); Magpale v. Civil

Service Commission (215 SCRA 398); Navarro v. Civil Service Commission and Export Processing Zone

Authority (226 SCRA 207) and more recently Del Castillo v. Civil Service Commission (237 SCRA 184). (CSC

v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

What is preventive suspension? Discuss its nature.


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Held: Imposed during the pendency of an administrative investigation, preventive suspension is not a

penalty in itself. It is merely a measure of precaution so that the employee who is charged may be

separated, for obvious reasons, from the scene of his alleged misfeasance while the same is being

investigated. Thus preventive suspension is distinct from the administrative penalty of removal from office

such as the one mentioned in Sec. 8(d) of P.D. No. 807. While the former may be imposed on a respondent

during the investigation of the charges against him, the latter is the penalty which may only be meted upon

him at the termination of the investigation or the final disposition of the case. (Beja, Sr. v. CA, 207 SCRA

689, March 31, 1992 [Romero])

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

employee placed under preventive suspension be entitled to compensation?

Held: There are two kinds of preventive suspension of civil service employees who are charged with

offenses punishable by removal or suspension: (1) preventive suspensionpending investigation(Sec. 51,

Civil Service Law, EO No. 292)and (2) preventive suspensionpending appealif the penalty imposed by the

disciplining authority is suspension or dismissal and, after review, the respondent is exonerated(Section 47,

par. 4, Civil Service Law, EO No. 292).

Preventive suspensionpending investigationis not a penalty. It is a measure intended to enable the

disciplining authority to investigate charges against respondent by preventing the latter from intimidating or

in any way influencing witnesses against him. If the investigation is not finished and a decision is not

rendered within that period, the suspension will be lifted and the respondent will automatically be

reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should

be reinstated. However, no compensation was due for the period of preventive suspension pending

investigation. The Civil Service Act of 1959(R.A. No. 2260)providing for compensation in such a case once

the respondent was exonerated was revised in 1975 and the provision on the payment of salaries during

suspension was deleted.

But although it is held that employees who are preventively suspendedpending investigationare not

entitled to the payment of their salaries even if they are exonerated, they are entitled to compensation for

the period of their suspensionpending appealif eventually they are found innocent.

Preventive suspensionpending investigation x x x is not a penalty but only a means of enabling the

disciplining authority to conduct an unhampered investigation. On the other hand, preventive

suspensionpending appeal is actually punitive although it is in effect subsequently considered illegal if

respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should

be reinstated with full pay for the period of the suspension. (Gloria v. CA, G.R. No. 131012, April 21,

1999, En Banc [Mendoza])


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Discuss the power of Ombudsman to conduct administrative investigations, and to impose

preventive suspension.

Held: Worth stressing, to resolve the present controversy, we must recall that the authority of the

Ombudsman to conduct administrative investigations is mandated by no less than the Constitution. x x x

R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory power to

conduct administrative investigations. x x x

Section 21 of R.A. 6770 names the officials subject to the Ombudsmans disciplinary authority x x x.

Petitioner is an elective local official accused of grave misconduct and dishonesty. That the Office of the

Ombudsman may conduct an administrative investigation into the acts complained of, appears clear from

the foregoing provisions of R.A. 6770.

However, the question of whether or not the Ombudsman may conduct an investigation over a particular act

or omission is different from the question of whether or not petitioner, after investigation, may be held

administratively liable. This distinction ought here to be kept in mind even as we must also take note that

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

Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an official

subject to its administrative investigation is provided by specific provision of law. x x x

We have previously interpreted the phrase under his authority to mean that the Ombudsman can

preventively suspend all officials under investigation by his office, regardless of the branch of government in

which they are employed,excepting of course those removable by impeachment, members of Congress and

the Judiciary.

The power to preventively suspend is available not only to the Ombudsman but also to the Deputy

Ombudsman. This is the clear import of Section 24 of R.A. 6770 abovecited.

There can be no question in this case as to the power and authority of respondent Deputy Ombudsman to

issue an order of preventive suspension against an official like the petitioner, to prevent that official from

using his office to intimidate or influence witnesses (Gloria v. CA, et al., G.R. No. 131012, April 21, 1999, p.

7, 306 SCRA 287)or to tamper with records that might be vital to the prosecution of the case against

him (Yasay, Jr. v. Desierto, et al., G.R. No. 134495, December 28, 1998, p. 9, 300 SCRA 494). In our view,

the present controversy simply boils down to this pivotal question: Given the purpose of preventive

suspension and the circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse

of discretion when he set the period of preventive suspension at six months?

Preventive suspension under Sec. 24, R.A. 6770 x x x may be imposed when, among other factors, the

evidence of guilt is strong. The period for which an official may be preventively suspended must not exceed


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six months. In this case, petitioner was preventively suspended and ordered to cease and desist from

holding office for the entire period of six months, which is the maximum provided by law.

The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension

rests with the Ombudsman.

The discretion as regards the period of such suspension also necessarilybelongs to the Ombudsman, except that he cannot extend the period of suspension beyond that provided by

law. But, in our view, both the strength of the evidence to warrant said suspension and the propriety of the

length or period of suspension imposed on petitioner are properly raised in this petition for certiorari and

prohibition. X x x

Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the

imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in

the case brought before us, it does appear to us that the imposition of the maximum period of six months is

unwarranted.

X x x [G]ranting that now the evidence against petitioner is already strong, even without conceding that

initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer

than necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that

the period during which petitioner was already preventively suspended, has been sufficient for the lawful

purpose of preventing petitioner from hiding and destroying needed documents, or harassing and preventing

witnesses who wish to appear against him.(Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2ndDiv.

[Quisumbing])

Distinguish preventive suspension under the Local Government Code from preventive suspension

under the Ombudsman Act.

Held: We reach the foregoing conclusion, however, without necessarily subscribing to petitioners claim that

the Local Government Code, which he averred should apply to this case of an elective local official, has been

violated. True, under said Code, preventive suspension may only be imposed after the issues are joined,

and only for a maximum period of sixty days. Here, petitioner was suspended without having had the

chance to refute first the charges against him, and for the maximum period of six months provided by the

Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman

Law are distinct from those initiated under the Local Government Code. Respondents point out that the

shorter period of suspension under the Local Government Code is intended to limit the period of suspension

that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political

considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is

not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not

decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive

suspension.

Respondents may be correct in pointing out the reason for the shorter period of preventive

suspension imposable under the Local Government Code. Political color could taint the exercise of the


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

considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics,

as respondents would have us believe.

InHagad v. Gozo-Dadole,

on the matter of whether or not the Ombudsman has been stripped ofhis power to investigate local elective officials by virtue of the Local Government Code, we said:

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly

or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in

question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down

the other.

It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman

Law is much too repugnant to the 60-day period that may be imposed under the Local Government

Code. But per J. Vitug, the two provisions govern differently.

However, petitioner now contends that Hagad did not settle the question of whether a local

elective official may be preventively suspended even before the issues could be joined. Indeed it did not,

but we have held in other cases that there could be preventive suspension even before the charges against

the official are heard, or before the official is given an opportunity to prove his innocence. Preventive

suspension is merely a preliminary step in an administrative investigation and is not in any way the final

determination of the guilt of the official concerned.

Petitioner also avers that the suspension order against him was issued in violation of Section

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

Petitioner argues that before an inquiry may be converted into a full-blown administrative

investigation, the official concerned must be given 72 hours to answer the charges against him. In his case,

petitioner says the inquiry was converted into an administrative investigation without him being given the

required number of hours to answer.

Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written

answer to the complaint against him. This, however, does not make invalid the preventive suspension order

issued against him. As we have earlier stated, a preventive suspension order may be issued even before

the charges against the official concerned is heard.

Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit to thecomplaint filed by respondent Tagaan. We find this 10-day period is in keeping with Section 5[a] of the

Rules of Procedure of the Office of the Ombudsman x x x. (Garcia v. Mojica, 314 SCRA 207, Sept. 10,

1999, 2ndDiv. [Quisumbing])

Does Section 13, Republic Act No. 3019 exclude from its coverage the members of Congress and,

therefore, the Sandiganbayan erred in decreeing the preventive suspension order against


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Senator Miriam Defensor-Santiago? Will the order of suspension prescribed by Republic Act No.

3019 not encroach on the power of Congress to discipline its own ranks under the Constitution?

Held: The petition assails the authority of the Sandiganbayan to decree a ninety-day preventive

suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic of the Philippines, from any

government position, and furnishing a copy thereof to the Senate of the Philippines for the implementation

of the suspension order.

The authority of the Sandiganbayan to order the preventive suspension of an incumbent public

official charged with violation of the provisions of Republic Act No. 3019 has both legal and jurisprudential

support. X x x

In the relatively recent case of Segovia v. Sandiganbayan, the Court reiterated:

The validity of Section 13, R.A. 3019, as amended treating of the suspensionpendente liteof an accused

public officer may no longer be put at issue, having been repeatedly upheld by this Court.

The provision of suspensionpendente liteapplies to all persons indicted upon a valid information under the

Act, whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to

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

It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension

upon determination of the validity of the information filed before it. Once the information is found to be

sufficient in form and substance, the court is bound to issue an order of suspension as a matter of course,

and there seems to be noifsand butsabout it. Explaining the nature of the preventive suspension, the

Court in the case of Bayot v. Sandiganbayan:

x x x It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted,

the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to

receive during suspension.

In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the

clear and unequivocal mandate of the law, as well as the jurisprudence in which the Court has, more than

once, upheld Sandiganbayans authority to decree the suspension of public officials and employees indicted

before it.

Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be

suspended only in the office where he is alleged to have committed the acts with which he has been

charged. Thus, it has been held that the use of the word office would indicate that it applies to any office

which the officer charged may be holding, and not only the particular office under which he stands accused.

(Bayot v. Sandiganbayan, supra; Segovia v. Sandiganbayan, supra.)

En passant, while the imposition of suspension is not automatic or self-operative as the validity of

the information must be determined in a pre-suspension hearing, there is no hard and fast rule as to the

conduct thereof. It has been said that


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x x x No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the

accused should be given a fair and adequate opportunity to challenge the VALIDITY OF THE CRIMINAL

PROCEEDINGS against him, e.g.,that he has not been afforded the right of due preliminary investigation;

that the acts for which he stands charged do not constitute a violation of the provisions of Republic Act 3019

or the bribery provisions of the Revised Penal Code which would warrant his mandatory suspension from

office under Section 13 of the Act; or he may present a motion to quash the information on any of the

grounds provided for in Rule 117 of the Rules of Court x x x.

Likewise, he is accorded the right to challenge the propriety of his prosecution on the

ground that the acts for which he is charged do not constitute a violation of Rep. Act 3019, or of the

provisions on bribery of the Revised Penal Code, and the right to present a motion to quash the information

on any other grounds provided in Rule 117 of the Rules of Court.

However, a challenge to the validity of the criminal proceedings on the ground that the acts for which the

accused is charged do not constitute a violation of the provisions of Rep. Act No. 3019, or of the provisions

on bribery of the Revised Penal Code, should be treated only in the same manner as a challenge to the

criminal proceeding by way of a motion to quash on the ground provided in Paragraph (a), Section 2 of Rule

117 of the Rules of Court, i.e.,that the facts charged do not constitute an offense. In other words, a

resolution of the challenge to the validity of the criminal proceeding, on such ground, should be limited to an

inquiry whether the facts alleged in the information, if hypothetically admitted, constitute the elements of an

offense punishable under Rep. Act 3019 or the provisions on bribery of the Revised Penal Code.(Luciano v.

Mariano, 40 SCRA 187 [1971]; People v. Albano, 163 SCRA 511, 517-519 [1988])

The law does not require that the guilt of the accused must be established in a pre-suspension

proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to determine (1)

the strength of the evidence of culpability against him, (2) the gravity of the offense charged, or (3)

whether or not his continuance in office could influence the witnesses or pose a threat to the safety and

integrity of the records and other evidence before the court could have a valid basis in decreeing preventive

suspension pending the trial of the case. All it secures to the accused is adequate opportunity to challenge

the validity or regularity of the proceedings against him, such as, that he has not been afforded the right to

due preliminary investigation, that the acts imputed to him do not constitute a specific crime warranting his

mandatory suspension from office under Section 13 of Republic Act No. 3019, or that the information is

subject to quashal on any of the grounds set out in Section 3, Rule 117, of the Revised Rules on Criminal

Procedure.

The pronouncement, upholding the validity of the information filed against petitioner, behooved

Sandiganbayan to discharge its mandated duty to forthwith issue the order of preventive suspension.

The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of

Congress to discipline its own ranks under the Constitution which provides that each


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x x x house may determine the rules of its proceedings, punish its Members for disorderly behavior, and,

with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension,

when imposed, shall not exceed sixty days. (Section 16[3], Article VI, 1987 Constitution)

The suspension contemplated in the above constitutional provision is a punitive measure that isimposed upon determination by the Senate or the House of Representatives, as the case may be, upon an

erring member. Thus, in its resolution in the case of Ceferino Paredes, Jr. v. Sandiganbayan, et al.,the

Court affirmed the order of suspension of Congressman Paredes by the Sandiganbayan, despite his

protestations on the encroachment by the court on the prerogatives of Congress. The Court ruled:

x x x Petitioners invocation of Section 16 (3), Article VI of the Constitution which deals with the power of

each House of Congress inter alia to punish its Members for disorderly behavior, and suspend or expel a

Member by a vote of two-thirds of all its Members subject to the qualification that the penalty of

suspension, when imposed, should not exceed sixty days in unavailing, as it appears to be quite distinct

from the suspension spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary,

preventive measure, prescinding from the fact that the latter is not being imposed on petitioner for

misbehavior as a Member of the House of Representatives.

The doctrine of separation of powers by itself may not be deemed to have effectively excluded Members of

Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes each of the

three co-equal and independent, albeit coordinate, branches of the government the Legislative, the

Executive and the Judiciary has exclusive prerogatives and cognizance within its own sphere of influence

and effectively prevents one branch from unduly intruding into the internal affairs of either branch.

Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution,

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

legally demandable and enforceable, but also in the determination of whether or not there has been a

grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or

instrumentality of the government. The provision allowing the Court to look into any possible grave abuse

of discretion committed by any government instrumentality has evidently been couched in general terms in

order to make it malleable to judicial interpretation in the light of any emerging milieu. In its normal

concept, the term has been said to imply an arbitrary, despotic, capricious or whimsical exercise of

judgment amounting to lack or excess of jurisdiction. When the question, however, pertains to an affair

internal to either of Congress or the Executive, the Court subscribes to the view that unless an infringement

of any specific Constitutional proscription thereby inheres the Court should not deign substitute its own

judgment over that of any of the other two branches of government. It is an impairment or a clear

disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial

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

the people, not the Court, who must promptly react in the manner prescribed by the Charter itself.


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Republic Act No. 3019 does not exclude from its coverage the members of Congress and that, therefore, the

Sandiganbayan did not err in thus decreeing the assailed preventive suspension order.

Attention might be called to the fact that Criminal Case No. 16698 has been decided by the First Division of

the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court, nevertheless, deems it

appropriate to render this decision for future guidance on the significant issue raised by

petitioner. (Santiago v. Sandiganbayan, 356 SCRA 636, April 18, 2001, En Banc [Vitug])

May an elective public official be validly appointed or designated to any public office or position

during his tenure?

Ans.: No elective official shall be eligible for appointment or designation in any capacity to any

public office or position during his tenure. (Sec. 7, 1stpar., Art. IX-B, 1987 Constitution)

May an appointive public official hold any other office oremployment?

Ans.: Unless otherwise allowed by law or by the primary functions of his position, no appointive

official shall hold any other office or employment in the Government or any subdivision, agency or

instrumentality thereof, including government-owned or controlled corporation. (Sec. 7, 2ndpar., Art. IX-

B, 1987 Constitution)

May the President, Vice-President, Members of the Cabinet, their deputies or assistants hold any

other office or employment?

Ans.: The President, Vice-President, the Members of the Cabinet, and their deputies or

assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment

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

Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their

deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general

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

Held: The threshold question therefore is: does the prohibition in Section 13, Article VII of the

1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad

exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B which, for easy

reference is quoted anew, thus: Unless otherwise allowed by law or by the primary functions of his position,

no appointive official shall hold any other office or employment in the government or any subdivision,

agency or instrumentality thereof, including government-owned or controlled corporation or their

subsidiaries.

We rule in the negative.


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The practice of designating members of the Cabinet, their deputies and assistants as members of

the governing bodies or boards of various government agencies and instrumentalities, including

government-owned and controlled corporations, became prevalent during the time legislative powers in this

country were exercised by former President Ferdinand E. Marcos pursuant to his martial law

authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned

and controlled corporations created by presidential decrees and other modes of presidential issuances where

Cabinet members, their deputies or assistants were designated to head or sit as members of the board with

the corresponding salaries, emoluments, per diems, allowances and other perquisites of office. X x x

This practice of holding multiple offices or positions in the government soon led to abuses by

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

Particularly odious and revolting to the peoples sense of propriety and morality in government

service were the data contained therein that Roberto v. Ongpin was a member of the governing boards of

twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-

three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and

Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose

A. Rono of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11)

each; and Lilia Bautista and Teodoro Q. Pena of ten (10) each.

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the

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

people that the 1986 Constitutional Commission, convened as it was after the people successfully unseated

former President Marcos, should draft into its proposed Constitution the provisions under consideration

which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental

offices and employment. X x x

But what is indeed significant is the fact that although Section 7, Article IX-B already contains a

blanket prohibition against the holding of multiple offices or employment in the government subsuming both

elective and appointive public officials, the Constitutional Commission should see it fit to formulate another

provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet,

their deputies and assistants from holding any other office or employment during their tenure, unless

otherwise provided in the Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional provisions

in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the

President and his official family in so far as holding other offices or employment in the government or

elsewhere is concerned.


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Moreover, such intent is underscored by a comparison of Section 13, Article VII with other

provisions of the Constitution on the disqualifications of certain public officials or employees from holding

other offices or employment. Under Section 13, Article VI, [N]o Senator or Member of the House of

Representatives may hold any other office or employment in the Government x x x. Under section 5(4),

Article XVI, [N]o member of the armed forces in the active service shall, at any time, be appointed in any

capacity to a civilian position in the Government, including government-owned or controlled corporations or

any of their subsidiaries. Even Section 7(2), Article IX-B, relied upon by respondents provides [U]nless

otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any

other office or employment in the Government.

It is quite notable that in all these provisions on disqualifications to hold other office or

employment, the prohibition pertains to an office or employment in the government and government-owned

or controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII

which states that [T]he President, Vice-President, the Members of the Cabinet, and their deputies or

assistants shall not, unless otherwise provided in this Constitution, hold any other office or employmentduring their tenure. In the latter provision, the disqualification is absolute, not being qualified by the

phrase in the Government. The prohibition imposed on the President and his official family is therefore all-

embracing and covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: They shall not, during

said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially

interested in any contract with, or in any franchise, or special privilege granted by the Government or any

subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or

their subsidiaries. These sweeping, all-embracing prohibitions imposed on the President and his official

family, which prohibitions are not similarly imposed on other public officials or employees such as theMembers of Congress, members of the civil service in general and members of the armed forces, are proof

of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to

impose upon said class stricter prohibitions.

Thus, while all other appointive officials in the civil service are allowed to hold other office or

employment in the government during their tenure when such is allowed by law or by the primary functions

of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly

authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the

general rule applicable to all elective and appointive public officials and employees, while Section 13, Article

VII is meant to be the exception applicable only to the President, the Vice-President, Members of the

Cabinet, their deputies and assistants.

This being the case, the qualifying phrase unless otherwise provided in this Constitution in

Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of

the 1987 Constitution. To construe said qualifying phrase as respondents would have us to do, would


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

impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and

assistants with respect to holding other offices or employment in the government during their

tenure. Respondents interpretation that Section 13 of Article VII admits of the exceptions found in Section

7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution

as to when the high-ranking officials of the Executive Branch from the President to assistant Secretary, on

the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary

downwards, on the other, may hold any other office or position in the government during their tenure.

Moreover, respondents reading of the provisions in question would render certain parts of the

Constitution inoperative. This observation applies particularly to the Vice-President who, under Section 13

of Article VII is allowed to hold other office or employment when so authorized by the Constitution, but who

as an elective public official under Sec. 7, par. (1) of Article IX-B is absolutely ineligible for appointment or

designation in any capacity to any public office or position during his tenure. Surely, to say that the phrase

unless otherwise provided in this Constitution found in Section 13, Article VII has reference to Section 7,

par. (1) of Article IX-B would render meaningless the specific provisions of the Constitution authorizing the

Vice-President to become a member of the Cabinet (Sec. 3, Ibid.), and to act as President without

relinquishing the Vice-Presidency where the President shall not have been chosen or fails to qualify (Sec. 7,

Article VII). Such absurd consequence can be avoided only by interpreting the two provisions under

consideration as one, i.e., Section 7, par. (1) of Article IX-B providing the general rule and the other, i.e.,

Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2)

of Article IX-B be construed vis--vis Section 13, Article VII.

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

prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with

respect to holding multiple offices or employment in the government during their tenure, the exception to

this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is

prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the

privilege of holding multiple government offices and employment. Verily, wherever the language used in the

constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation

(Varney v. Justice, 86 Ky 596; 6 S.W. 457; Hunt v. State, 22 Tex. App. 396, 3 S.W. 233). The phrase

unless otherwise provided in this Constitution must be given a literal interpretation to refer only to those

particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member

of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under

Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officiomember of the Judicial

and Bar Council by virtue of Section 8 (1), Article VIII.

It being clear x x x that the 1987 Constitution seeks to prohibit the President, Vice-President,

members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or

employment in the government, except in those cases specified in the Constitution itself and as above


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clarified with respect to posts held without additional compensation in an ex-officiocapacity as provided by

law and as required by the primary functions of their office, the citation of Cabinet members (then called

Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive

officials should be considered as mere personal opinions which cannot override the constitutions manifest

intent and the peoples understanding thereof.

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2),

Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is

unconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or

assistant secretaries may hold in addition to their primary position to not more than two (2) positions in the

government and government corporations, Executive Order No. 284 actually allows them to hold multiple

offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987

Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences that will result from a strict

application of the prohibition mandated under Section 13, Article VII on the operations of the Government,

considering that Cabinet members would be stripped of their offices held in an ex-officiocapacity, by reason

of their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-officioposts held

by the executive official concerned without additional compensation as provided by law and as required by

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

contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue

of legislation, including chairmanships or directorships in government-owned or controlled corporations and

their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than

real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full

attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a

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

without the distraction of other governmental offices or employment. He should be precluded from

dissipating his efforts, attention and energy among too many positions and responsibility, which may result

in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention,

knowledge and expertise, particularly at this stage of our national and economic development, far outweigh

the benefits, if any, that may be gained from a department head spreading himself too thin and taking in

more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the Court

hereby orders respondents x x x to immediately relinquish their other offices or

employment, as herein defined, in the government, including government-owned

or controlled corporations and their subsidiaries. (Civil Liberties Union v.

Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])

Does the prohibition against holding dual or multiple offices or employment under Section 13,

Article VII of the Constitution apply to posts occupied by the Executive officials specified therein


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without additional compensation in an ex-officio capacity as provided by law and as required by

the primary functions of said officials office?

Held: The prohibition against holding dual or multiple offices or employment under Section 13,

Article VII of the Constitution must not, however, be construed as applying to posts occupied by the

Executive officials specified therein without additional compensation in an ex-officio capacity as provided by

law and asrequired(As opposed to the term allowed used in Section 7, par. (2),Article IX-B of the

Constitution, which is permissive. Required suggests an imposition, and therefore, obligatory in

nature)by the primary functions of said officials office. The reason is that these posts do not comprise any

other office within the contemplation of the constitutional prohibition but are properly an imposition of

additional duties and functions on said officials. To characterize these posts otherwise would lead to absurd

consequences, among which are: The President of the Philippines cannot chair the National Security Council

reorganized under Executive Order No. 115. Neither can the Vice-President, the Executive Secretary, and

the Secretaries of National Defense, Justice, Labor and Employment and Local Government sit in this

Council, which would then have no reason to exist for lack of a chairperson and members. The respectiveundersecretaries and assistant secretaries, would also be prohibited.

Indeed, the framers of our Constitution could not have intended such absurd consequences. A

Constitution, viewed as a continuously operative charter of government, is not to be interpreted as

demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible,

should be avoided.

To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering

positions held without additional compensation in ex-officiocapacities as provided by law and as required by

the primary functions of the concerned officials office. The term ex-officio means from office; by virtue of

office. It refers to an authority derived from official character merely, not expressly conferred upon theindividual character, but rather annexed to the official position.Ex officio likewise denotes an act done in

an official character, or as a consequence of office, and without any other appointment or authority than

that conferred by the office. An ex-officio member of a board is one who is a member by virtue of his title

to a certain office, and without further warrant or appointment. To illustrate, by express provision of law,

the Secretary of Transportation and Communications is theex-officio Chairman of the Board of the Philippine

Ports Authority (Sec. 7, E.O. 778), and the Light Rail Transit Authority (Sec. 1, E.O. 210).

The Court had occasion to explain the meaning of an ex-officioposition inRafael v. Embroidery

and Apparel Control and Inspection Board, thus: An examination of Section 2 of the questioned statute

(R.A. 3137) reveals that for the chairman and members of the Board to qualify they need only be

designated by the respective department heads. With the exception of the representative from the private

sector, they sit ex-officio. I order to be designated they must already be holding positions in the offices

mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of

Customs, cannot, under the act, be designated a representative from that office. The same is true with

respect to the representatives from the other offices. No new appointments are necessary. This is as it


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should be, because the representatives so designated merely perform duties in the Board in addition to

those already performed under their original appointments.

The term primary used to describe functions refers to the order of importance and thus

means chief or principal function. The term is not restricted to the singular but may refer to the plural (33A

Words and Phrases, p. 210). The additional duties must not only be closely related to, but must be required

by the officials primary functions. Examples of designations to positions by virtue of ones primary

functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the

Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority and

the Civil Aeronautics Board.

If the functions to be performed are merely incidental, remotely related, inconsistent,

incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions would

fall under the purview of any other office prohibited by the Constitution. An example would be the Press

Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming

Corporation. The same rule applies to such positions which confer on the cabinet official managementfunctions and/or monetary compensation, such as but not limited to chairmanships or directorships in

government-owned or controlled corporations and their subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members,

their deputies or assistants which are not inconsistent with those already prescribed by their offices or

appointments by virtue of their special knowledge, expertise and skill in their respective executive offices is

a practice long-recognized in many jurisdictions. It is a practice justified by the demands of efficiency,

policy direction, continuity and coordination among the different offices in the Executive Branch in the

discharge of its multifarious tasks of executing and implementing laws affecting national interest and general

welfare and delivering basic services to the people. It is consistent with the power vested on the President

and his alter egos, the Cabinet members, to have control of all the executive departments, bureaus and

offices and to ensure that the laws are faithfully executed. Without these additional duties and functions

being assigned to the President and his official family to sit in the governing bodies or boards of

governmental agencies or instrumentalities in an ex-officiocapacity as provided by law and as required by

their primary functions, they would be deprived of the means for control and supervision, thereby resulting

in an unwieldy and confused bureaucracy.

It bears repeating though that in order that such additional duties or functions may not

transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional

duties or functions must be required by the primary functions of the official concerned, who is to perform

the same in an ex-officio capacity as provided by law, without receiving any additional compensation

therefor.

The ex-officioposition being actually and in legal contemplation part of the principal office, it

follows that the official concerned has no right to receive additional compensation for his services in the said

position. The reason is that these services are already paid for and covered by the compensation attached


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to his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the

Monetary Board as an ex-officiomember thereof, he is actually and in legal contemplation performing the

primary function of his principal office in defining policy in monetary and banking matters, which come under

the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra

compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some other

such euphemism. By whatever name it is designated, such additional compensation is prohibited by the

Constitution.(Civil Liberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc

[Fernan, CJ])

Should members of the Cabinet appointed to other positions in the government pursuant to

Executive Order No. 284 which later was declared unconstitutional by the SC for being violative

of Section 13, Article VII of the Constitution be made to reimburse the government for whatever

pay and emoluments they received from holding such other positions?

Held: During their tenure in the questioned positions, respondents may be considered de

factoofficers and as such entitled to emoluments for actual services rendered. It has been held that incases where there is no de jureofficer, a de factoofficer, who, in good faith has had possession of the office

and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and

may in an appropriate action recover the salary, fees and other compensations attached to the office. This

doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit

by the services of an officer de factoand then be freed from all liability to pay any one for such

services. Any per diem, allowances or other emoluments received by the respondents by virtue of actual

services rendered in the questioned positions may therefore be retained by them. (Civil Liberties Union v.

Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])

May a Senator or Congressman hold any other office or

employment?

Ans.: No Senator or Member of the House of Representatives may hold any other office or

employment in the government, or any subdivision, agency, or instrumentality thereof, including

government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his

seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof

increased during the term for which he was elected. (Sec. 13, Art. VI, 1987 Constitution).

What are the situations covered by the law on nepotism?

Held: Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a

relative within the third civil degree of consanguinity or affinity of any of the following:

a) appointing authority;

b) recommending authority;


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c) chief of the bureau or office; and

d) person exercising immediate supervision over the appointee.

Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the

appointing or recommending authority is. To constitute a violation of the law, it suffices that an

appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or

affinity of the chief of the bureau or office, or the person exercising immediate supervision over the

appointee. (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])

What are the exemptions from the operation of the rules on nepotism?

Ans.: The following are exempted from the operation of the rules on nepotism: (a) persons employed in a

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

The rules on nepotism shall likewise not be applicable to the case of a member of any family

who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in

the same office or bureau, in which event the employment or retention therein of both husband and wife

may be allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V, E.O. No. 292)

What is the doctrine of forgiveness or condonation? Does it apply to pending criminal cases?

Held: 1. A public official cannot be removed for administrative misconduct committed during a prior term,

since his re-election to office operates as a condonation of the officers previous misconduct to the extent of

cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal

cases pending against petitioner. (Aguinaldo v. Santos, 212 SCRA 768, 773 [1992])

2. A reelected local official may not be held administratively accountable for misconduct committed during

his prior term of office. The rationale for this holding is that when the electorate put him back into office, it

is presumed that it did so with full knowledge of his life and character, including his past misconduct. If,

armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past

misdeeds. (Mayor Alvin B. Garcia v. Hon. Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999

[Quisumbing])

What is the Doctrine of Condonation? Illustrative case.

Held: Petitioner contends that, per our ruling inAguinaldo v. Santos, his reelection has rendered the

administrative case filed against him moot and academic. This is because his reelection operates as a

condonation by the electorate of the misconduct committed by an elective official during his previous

term. Petitioner further cites the ruling of this Court in Pascual v. Hon. Provincial Board of Nueva Ecija,

citing Conant v. Brogan, that

x x x When the people have elected a man to office, it must be assumed that they did this with knowledge

of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty


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

people.

Respondents, on the other hand, contend that while the contract in question was signed during the previous

term of petitioner, it was to commence or be effective only on September 1998 or during his currentterm. It is the respondents submission that petitioner went beyond the protective confines of

jurisprudence when he agreed to extend his act to his current term of office.Aguinaldo cannot apply,

according to respondents, because what is involved in this case is a misconduct committed during a previous

term but to be effective during the current term.

Respondents maintain that,

x x x petitioner performed two acts with respect to the contract: he provided for a suspensive period

making the supply contract commence or be effective during his succeeding or current term and during his

current term of office he acceded to the suspensive period making the contract effective during his current

term by causing the implementation of the contract.

Hence, petitioner cannot take refuge in the fact of his reelection, according to respondents.

Further, respondents point out that the contract in question was signed just four days before the

date of the 1998 election and so it could not be presumed that when the people of Cebu City voted

petitioner to office, they did so with full knowledge of petitioners character.

On this point, petitioner responds that knowledge of an officials previous acts is presumed and

the court need not inquire whether, in reelecting him, the electorate was actually aware of his priormisdeeds.

Petitioner cites our ruling in Salalima v. Guingona, wherein we absolved Albay governor Ramon

R. Salalima of his administrative liability as regards a retainer agreement he signed in favor of a law firm

during his previous term, although disbursements of public funds to cover payments under the agreement

were still being done during his subsequent term. Petitioner argues that, following Salalima, the doctrine

ofAguinaldo applies even where the effects of the acts complained of are still evident during the subsequent

term of the reelected official. The implementation of the contract is a mere incident of its

execution. Besides, according to petitioner, the sole act for which he has been administratively charged is

the signing of the contract with F.E. Zuellig. The charge, in his view, excludes the contracts execution or

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

In Salalima, we recall that the Solicitor General maintained thatAguinaldodid not apply to that

case because the administrative case against Governor Rodolfo Aguinaldo of Cagayan was already pending

when he filed his certificate of candidacy for his reelection bid. Nevertheless, in Salalima, the Court applied


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theAguinaldodoctrine, even if the administrative case against Governor Salalima was filed after his

reelection.

We now come to the concluding inquiry. Granting that the Office of the Ombudsman may

investigate, for purposes provided for by law, the acts of petitioner committed prior to his present term of

office; and that it may preventively suspend him for a reasonable period, can that office hold

him administratively liable for said acts?

In a number of cases, we have repeatedly held that a reelected local official may not be held

administratively accountable for misconduct committed during his prior term of office. The rationale for this

holding is that when the electorate put him back into office, it is resumed that it did so with full knowledge

of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him,

then such reelection is considered a condonation of his past misdeeds.

However, in the present case, respondents point out that the contract entered into by petitioner

with F.E. Zuellig was signed just four days before the date of the elections. It was not made an issue during

the election, and so the electorate could not be said to have voted for petitioner with knowledge of thisparticular aspect of his life and character.

For his part, petitioner contends that the only conclusive determining factor as regards the

peoples thinking on the matter is an election. On this point we agree with petitioner. That the people voted

for an official with knowledge of his character is presumed, precisely to eliminate the need to determine, in

factual terms, the extent of this knowledge. Such an undertaking will obviously be impossible. Our rulings

on the matter do not distinguish the precise timing or period when the misconduct was committed, reckoned

from the date of the officials reelection, except that it must be prior to said date.

As held in Salalima,

The rule adopted inPascual, qualified inAguinaldo insofar as criminal cases are concerned, is still a good

law. Such a rule is not only founded on the theory that an officials reelection expresses the sovereign will

of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline

which was committed during his previous term. We may add that sound policy dictates it. To rule otherwise

would open the floodgates to exacerbating endless partisan contests between the reelected official and his

political enemies, who may not stop to hound the former during his new term with administrative cases for

acts alleged to have been committed during his previous term. His second term may thus be devoted to

defending himself in the said cases to the detriment of public service x x x.

The above ruling in Salalima applies to this case. Petitioner cannot anymore be heldadministratively liable

for an act done during his previous term, that is, his signing of the contract with F.E. Zuellig.

The assailed retainer agreement in Salalima was executed sometime in

1990. Governor Salalima was reelected in 1992 and payments for the retainer continued to be made during

his succeeding term. This situation is no different from the one in the present case, wherein deliveries of


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the asphalt under the contract with F.E. Zuellig and the payments therefor were supposed to have

commenced on September 1998, during petitioners second term.

However, respondents argue that the contract, although signed on May 7, 1998, during

petitioners prior term, is to be made effective only during his present term.

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

petitioner (representing Cebu City) and F.E. Zuellig was perfected on the date the contract was signed,

during petitioners prior term. At that moment, petitioner already acceded to the terms of the contract,

including stipulations now alleged to be prejudicial to the city government. Thus, any culpability petitioner

may have in signing the contract already became extant on the day the contract was signed. It hardly

matters that the deliveries under the contract are supposed to have been made months later.

While petitioner can no longer be held administratively liable for signing the contract with F.E.

Zuellig, however, this should not prejudice the filing of any case other than administrative against

petitioner. Our ruling in this case, may not be taken to mean the total exoneration of petitioner for

whatever wrongdoing, if any, might have been committed in signing the subject contract. The ruling now is

limited to the question of whether or not he may be held administratively liable therefor, and it is our

considered view that he may not. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2ndDiv.

[Quisumbing])

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and

reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting as

a collegial body, can authorize such reappointment. Moreover, petitioner maintains that a

reassignment without her consent amounts to removal from office without due process and

therefore illegal.

Held: Petitioners posturing will hold water if Benipayo does not possess any color of title to the

office of Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jureCOMELEC

Chairman, and consequently he has full authority to exercise all the powers of that office for so long as

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

is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with

the Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the

approval of the COMELEC en banc.

Petitioners appointment papers x x x indisputably show that she held her Director IV position in

the EID only in an actingor temporarycapacity. Petitioner is not a Career Executive Service (CES), and

neither does she hold Career Executive Service Eligibility, which are necessary qualifications for holding the

position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil

Service Commission. Obviously, petitioner does not enjoy security of tenure as Director IV. X x x


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Having been appointed merely in a temporary or acting capacity, and not possessed of the

necessary qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her

reassignment was contrary to the Civil Service Law. X x x

Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act underSection 261 (h) of the Omnibus Election Code x x x.

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en bancto effect transfers or

reassignments of COMELEC personnel during the election period. Moreover, petitioner insists that the

COMELEC en bancmust concur to every transfer or reassignment of COMELEC personnel during the election

period.

Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated

November 6, 2000, exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. X x x

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or

reassignment can be made within thirty days prior to election day, refers only to COMELEC fieldpersonnel

and not to head office personnel like the petitioner. Under the Revised Administrative Code, the COMELEC

Chairman is thesole officer specifically vested with the power to transfer or reassign COMELEC

personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC

personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banccannot arrogate unto itself

this power because that will mean amending the Revised Administrative Code, an act the COMELEC en

banccannot legally do.

COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel

should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to

require such concurrence will render the resolution meaningless since the COMELEC en bancwill have to

approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No.

3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel,

without need of securing a second approval from the COMELEC en bancto actually implement such transfer

or reassignment.

The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC

personnel. The person holding that office, in a de jurecapacity, is Benipayo. The COMELEC en banc, in

COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the

election period. Thus, Benipayos order reassigning petitioner from the EID to the Law Department does not

violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayos order designating

Cinco Officer-in-Charge of the EID is legally unassailable. (Matibag v. Benipayo, 380 SCRA 49, April 2,

2002, En Banc [Carpio])


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May the appointment of a person assuming a position in the civil service under a completed

appointment be validly recalled or revoked?

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

position in the civil service, he acquires a legal right which cannot be taken away either by revocation of the

appointment or by removal except for cause and with previous notice and hearing. Moreover, it is well-

settled that the person assuming a position in the civil service under a completed appointment acquires a

legal, not just an equitable, right to the position. This right is protected not only by statute, but by the

Constitution as well, which right cannot be taken away by either revocation of the appointment, or by

removal, unless there is valid cause to do so, provided that there is previous notice and hearing.

Petitioner admits that his very first official act upon assuming the position of town mayor was to issue Office

Order No. 95-01 which recalled the appointments of the private respondents. There was no previous notice,

much less a hearing accorded to the latter. Clearly, it was petitioner who acted in undue haste to remove

the private respondents without regard for the simple requirements of due process of law. While he argues

that the appointing power has the sole authority to revoke said appointments, there is no debate that he

does not have blanket authority to do so. Neither can he question the CSCs jurisdiction to affirm or revoke

the recall.

Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code specifically

provides that an appointment accepted by the appointee cannot be withdrawn or revoked by the appointing

authority and shall remain in force and in effect until disapproved by the Commission. Thus, it is the CSC

that is authorized to recall an appointment initially approved, but only when such appointment and approval

are proven to be in disregard of applicable provisions of the civil service law and regulations.

Moreover, Section 10 of the same rule provides:

Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect immediately

upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position,

he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the

Commission. The appointment shall remain effective until disapproved by the Commission. In no case shall

an appointment take effect earlier than the date of its issuance.

Section 20 of Rule VI also provides:

Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the

following grounds:

Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan;

Failure to pass through the agencys Selection/Promotion Board;


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Violation of the existing collective agreement between management and employees relative to promotion; or

Violation of other existing civil service law, rules and regulations.

Accordingly, the appointments of the private respondents may only be recalled on the above-cited

grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were

midnight appointments. The CSC correctly ruled, however, that the constitutional prohibition on so-called

midnight appointments, specifically those made within two (2) months immediately prior to the next

presidential elections, applies only to the President or Acting President.(De Rama v. Court of Appeals, 353

SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago])

Is a government employee who has been ordered arrested and detained for a non-bailable

offense and for which he was suspended for his inability to report for wor

reviewer on public officers

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