the law of public officers q&a
TRANSCRIPT
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THE LAW OF PUBLIC OFFICERS
Define Appointment. Discuss its nature.
Held: An appointment to a public office is the
unequivocal act of designating or selecting by one
having the authority therefor of an individual to
discharge and perform the duties and functions of an
office or trust. The appointment is deemed complete
once the last act required of the appointing authority
has been complied with and its acceptance thereafter
by the appointee in order to render it effective.
Appointment necessarily calls for an exercise of
discretion on the part of the appointing authority.
In Pamantasan ng Lungsod ng Maynila v. Intermediate
Appellate Court, reiterated in Flores v. Drilon, this
Court has held:
The power to appoint is, in essence, discretionary.
The appointing power has the right of choice which he
may exercise freely according to his judgment,
deciding for himself who is best qualified among thosewho have the necessary qualifications and eligibilities.
It is a prerogative of the appointing power x x x.
Indeed, it may rightly be said that the right of choice is
the heart of the power to appoint. In the exercise of
the power of appointment, discretion is an integral
thereof. (Bermudez v. Torres, 311 SCRA 733,
Aug. 4, 1999, 3rdDiv. [Vitug])
May the Civil Service Commission, or the
Supreme Court, validly nullify an appointment on
the ground that somebody else is better
qualified?
Held: The head of an agency who is the appointing
power is the one most knowledgeable to decide who
can best perform the functions of the office.
Appointment is an essentially discretionary power and
must be performed by the officer vested with such
power according to his best lights, the only condition
being that the appointee should possess the
qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that
there are others better qualified who should have been
preferred. Indeed, this is a prerogative of theappointing authority which he alone can decide. The
choice of an appointee from among those who possess
the required qualifications is a political and
administrative decision calling for considerations of
wisdom, convenience, utility and the interests of the
service which can best be made by the head of the
office concerned, the person most familiar with the
organizational structure and environmental
circumstances within which the appointee must
function.
As long as the appointee is qualified the Civil ServiceCommission has no choice but to attest to and respect
the appointment even if it be proved that there are
others with superior credentials. The law limits the
Commissions authority only to whether or not the
appointees possess the legal qualifications and the
appropriate civil service eligibility, nothing else. If
they do then the appointments are approved because
the Commission cannot exceed its power by
substituting its will for that of the appointing
authority. Neither can we. (Rimonte v. CSC, 244
SCRA 504-505, May 29, 1995, En Banc [Bellosillo,
J.])
Does the next-in-rank rule import any
mandatory or peremptory requirement that the
person next-in-rank must be appointed to the
vacancy?
Held: The next-in-rank rule is not absolute; it only
applies in cases of promotion, a process which denotesa scalar ascent of an officer to another position higher
either in rank or salary. And even in promotions, it
can be disregarded for sound reasons made known to
the next-in-rank, as the concept does not import any
mandatory or peremptory requirement that the person
next-in-rank must be appointed to the vacancy. The
appointing authority, under the Civil Service Law, is
allowed to fill vacancies by promotion, transfer of
present employees, reinstatement, reemployment, and
appointment of outsiders who have appropriate civil
service eligibility, not necessarily in that order. There
is no legal fiat that a vacancy must be filled only bypromotion; the appointing authority is given wide
discretion to fill a vacancy from among the several
alternatives provided by law.
What the Civil Service Law provides is that if a vacancy
is filled by promotion, the person holding the position
next in rank thereto shall be considered for
promotion.
In Taduran v. Civil Service Commission, the Court
construed that phrase to mean that the person next-
in-rank would be among the first to be considered for
the vacancy, if qualified. In Santiago, Jr. v. CivilService Commission, the Court elaborated the import
of the rule in the following manner:
One who is next-in-rank is entitled to preferential
consideration for promotion to the higher vacancy but
it does not necessarily follow that he and no one else
can be appointed. The rule neither grants a vested
right to the holder nor imposes a ministerial duty on
the appointing authority to promote such person to the
next higher position x x x(Abila v. CSC, 198 SCRA
102, June 3, 1991, En Banc [Feliciano])
Can a person who lacks the necessary
qualifications for a public position be appointed
to it in a permanent capacity? Illustrative case.
Held: At the outset, it must be stressed
that the position of Ministry Legal Counsel-CESO IV is
embraced in the Career Executive Service. X x x
In the case at bar, there is no question that
private respondent does not have the required CES
eligibility. As admitted by private respondent in his
Comment, he is not a CESO or a member of the
Career Executive Service.
In the case ofAchacoso v. Macaraig, et
al., the Court held:
It is settled that a permanent appointment can be
issued only to a person who meets all the
requirements for the position to which he s being
appointed, including the appropriate eligibility
prescribed. Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary.
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And being so, it could be withdrawn at will by the
appointing authority and at a moments notice,
conformably to established jurisprudence.
The Court, having considered these submissions and
the additional arguments of the parties in the
petitioners Reply and of the Solicitor-Generals
Rejoinder, must find for the respondents.
The mere fact that a position belongs to the CareerService does not automatically confer security of
tenure in its occupant even if he does not possess the
required qualifications. Such right will have to depend
on the nature of his appointment, which in turn
depends on his eligibility or lack of it. A person who
does not have the requisite qualifications for the
position cannot be appointed to it in the first place or,
only as an exception to the rule, may be appointed to
it merely in an acting capacity in the absence of
appropriate eligibles. The appointment extended to
him cannot be regarded as permanent even if it may
be so designated.
Evidently, private respondents appointment
did not attain permanency. Not having taken the
necessary Career Executive Service examination to
obtain the requisite eligibility, he did not at the time of
his appointment and up to the present, possess the
needed eligibility for a position in the Career Executive
Service. Consequently, his appointment as Ministry
Legal Counsel-CESO IV/Department Legal Counsel
and/or Director III, was merely temporary. Such
being the case, he could be transferred or reassigned
without violating the constitutionally guaranteed right
to security of tenure.
Private respondent capitalizes on his lack of
CES eligibility by adamantly contending that the
mobility and flexibility concepts in the assignment of
personnels under the Career Executive Service do not
apply to him because he s not a Career Executive
Service Officer. Obviously, the contention is without
merit. As correctly pointed out by the Solicitor
General, non-eligibles holding permanent
appointments to CES positions were never meant to
remain immobile in their status. Otherwise, their lack
of eligibility would be a premium vesting them withpermanency in the CES positions, a privilege even their
eligible counterparts do not enjoy.
Then too, the cases on unconsented
transfer invoked by private respondent find no
application in the present case. To reiterate, private
respondents appointment is merely temporary; hence,
he could be transferred or reassigned to other
positions without violating his right to security of
tenure. (De Leon v. Court of Appeals, 350 SCRA
1, Jan. 22, 2001, En Banc [Ynares-Santiago])
In the career executive service, is a career
executive service (CES) eligibility all that an
employee needs to acquire security of tenure? Is
appointment to a CES rank necessary for the
acquisition of such security of tenure?
Held: In the career executive service, the
acquisition of security of tenure which presupposes a
permanent appointment is governed by the rules and
regulations promulgated by the CES Board x x x.
As clearly set forth in the foregoing provisions, two
requisites must concur in order that an employee in
the career executive service may attain security of
tenure, to wit:
CES eligibility; and
Appointment to the appropriate CES rank.
In addition, it must be stressed that the security of
tenure of employees in the career executive service
(except first and second level employees in the civil
service), pertains only to rank and not to the office or
to the position to which they may be appointed. Thus,
a career executive service officer may be transferred
or reassigned from one position to another without
losing his rank which follows him wherever he is
transferred or reassigned. In fact, a CESO suffers no
diminution of salary even if assigned to a CES position
with lower salary grade, as he is compensated
according to his CES rank and not on the basis of the
position or office he occupies.
In the case at bar, there is no question that
respondent Ramon S. Roco, though a CES eligible,
does not possess the appropriate CES rank, which is
CES rank level V, for the position of Regional Director
of the LTO (Region V). Falling short of one of the
qualifications that would complete his membership in
the CES, respondent cannot successfully interpose
violation of security of tenure. Accordingly, he could
be validly reassigned to other positions in the career
executive service. x x x
Moreover, under the mobility and flexibility principlesof the Integrated Reorganization Plan, CES personnel
may be reassigned or transferred from one position to
another x x x.
One last point. Respondent capitalizes on the fact that
petitioner Luis Mario M. General is not a CES eligible.
The absence, however, of such CES eligibility is of no
moment. As stated in Part III, Chapter I, Article IV,
paragraph 5(c), of the Integrated Reorganization Plan
x x x the President may, in exceptional cases, appoint
any person who is not a Career Executive Service
eligible; provided that such appointee shall
subsequently take the required Career Executive
Service examination and that he shall not be promoted
to a higher class until he qualified in such
examination.
Evidently, the law allows appointment of those who are
not CES eligible, subject to the obtention of said
eligibility, in the same manner that the appointment of
respondent who does not possess the required CES
rank (CES rank level V) for the position of Regional
Director of the LTO, is permitted in a temporarycapacity. (General v. Roco, 350 SCRA 528, Jan.
29, 2001, 1stDiv. [Ynares-Santiago])
How are positions in the Civil Service classified?
Discuss the characteristics of each.
Ans.: Positions in the Civil Service may be
classified into: 1) Career Positions, and 2) Non-Career
Positions.
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Career Positions are characterized by (1) entrance
based on merit and fitness to be determined as far as
practicable by competitive examination, or based on
highly technical qualifications; (2) opportunity for
advancement to higher career positions; and (3)
security of tenure (Sec. 7, Chap. 2, Subtitle A, Title
I, Bk. V, E.O. No. 292).
The Non-Career Service shall be characterized by (1)
entrance on bases other than of the usual tests ofmerit or fitness utilized for the career service; and (2)
tenure which is limited to a period specified by law, or
which is coterminous with that of the appointing
authority or subject to his pleasure, or which is limited
to the duration of a particular project for which
purpose employment was made (Sec. 9, Chap. 2,
Subtitle A, Title I, Bk. V, E.O. No. 292).
What is a primarily confidential position? What
is the test to determine whether a position is
primarily confidential or not?
Held: Aprimarily confidential position is one which
denotes not only confidence in the aptitude of the
appointee for the duties of the office but primarily
close intimacy which ensures freedom from intercourse
without embarrassment or freedom from misgivings or
betrayals of personal trust or confidential matters of
state. (De los Santos v. Mallare, 87 Phil. 289
[1950])
Under theproximity rule, the occupant of a particular
position could be considered a confidential employee ifthe predominant reason why he was chosen by the
appointing authority was the latters belief that he can
share a close intimate relationship with the occupant
which ensures freedom of discussion without fear or
embarrassment or misgivings of possible betrayal of
personal trust or confidential matters of state. Withal,
where the position occupied is more remote from that
of the appointing authority, the element of trust
between them is no longer predominant. (CSC v.
Salas, 274 SCRA 414, June 19, 1997)
Does the Civil Service Law contemplate a review
of decisions exonerating officers or employees
from administrative charges?
Held: By this ruling, we now expressly abandon and
overrule extant jurisprudence that the phrase party
adversely affected by the decision refers to the
government employee against whom the
administrative case is filed for the purpose of
disciplinary action which may take the form of
suspension, demotion in rank or salary, transfer,
removal or dismissal from office and not included arecases where the penalty imposed is suspension for
not more than thirty (30) days or fine in an amount
not exceeding thirty days salary(Paredes v. Civil
Service Commission, 192 SCRA 84, 85)or when
respondent is exonerated of the charges, there is no
occasion for appeal.(Mendez v. Civil Service
Commission, 204 SCRA 965, 968) In other words, we
overrule prior decisions holding that the Civil Service
Law does not contemplate a review of decisions
exonerating officers or employees from administrative
charges enunciated inParedes v. Civil Service
Commission (192 SCRA 84); Mendez v. Civil Service
Commission (204 SCRA 965); Magpale v. Civil Service
Commission (215 SCRA 398); Navarro v. Civil Service
Commission and Export Processing Zone Authority
(226 SCRA 207) and more recently Del Castillo v. Civil
Service Commission (237 SCRA 184).(CSC v. Pedro
O. Dacoycoy, G.R. No. 135805, April 29, 1999, En
Banc [Pardo])
What is preventive suspension? Discuss its
nature.
Held: Imposed during the pendency of an
administrative investigation, preventive suspension is
not a penalty in itself. It is merely a measure of
precaution so that the employee who is charged may
be separated, for obvious reasons, from the scene of
his alleged misfeasance while the same is being
investigated. Thus preventive suspension is distinct
from the administrative penalty of removal from office
such as the one mentioned in Sec. 8(d) of P.D. No.
807. While the former may be imposed on a
respondent during the investigation of the charges
against him, the latter is the penalty which may only
be meted upon him at the termination of the
investigation or the final disposition of the
case. (Beja, Sr. v. CA, 207 SCRA 689, March 31,
1992 [Romero])
Discuss the kinds of preventive suspension underthe Civil Service Law. When may a civil service
employee placed under preventive suspension be
entitled to compensation?
Held: There are two kinds of preventive suspension of
civil service employees who are charged with offenses
punishable by removal or suspension: (1) preventive
suspensionpending investigation(Sec. 51, Civil
Service Law, EO No. 292) and (2) preventive
suspensionpending appealif the penalty imposed by
the disciplining authority is suspension or dismissal
and, after review, the respondent is
exonerated(Section 47, par. 4, Civil Service Law, EO
No. 292).
Preventive suspensionpending investigation is not a
penalty. It is a measure intended to enable the
disciplining authority to investigate charges against
respondent by preventing the latter from intimidating
or in any way influencing witnesses against him. If the
investigation is not finished and a decision is not
rendered within that period, the suspension will be
lifted and the respondent will automatically be
reinstated. If after investigation respondent is found
innocent of the charges and is exonerated, he shouldbe reinstated. However, no compensation was due for
the period of preventive suspension pending
investigation. The Civil Service Act of 1959(R.A. No.
2260) providing for compensation in such a case once
the respondent was exonerated was revised in 1975
and the provision on the payment of salaries during
suspension was deleted.
But although it is held that employees who are
preventively suspendedpending investigation are not
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entitled to the payment of their salaries even if they
are exonerated, they are entitled to compensation for
the period of their suspensionpending appealif
eventually they are found innocent.
Preventive suspensionpending investigation x x x is
not a penalty but only a means of enabling the
disciplining authority to conduct an unhampered
investigation. On the other hand, preventive
suspensionpending appealis actually punitivealthough it is in effect subsequently considered illegal if
respondent is exonerated and the administrative
decision finding him guilty is reversed. Hence, he
should be reinstated with full pay for the period of the
suspension. (Gloria v. CA, G.R. No. 131012, April
21, 1999, En Banc [Mendoza])
Discuss the power of Ombudsman to conduct
administrative investigations, and to impose
preventive suspension.
Held: Worth stressing, to resolve the present
controversy, we must recall that the authority of the
Ombudsman to conduct administrative investigations is
mandated by no less than the Constitution. x x x
R.A. 6770, the Ombudsman Law, further grants the
Office of the Ombudsman the statutory power to
conduct administrative investigations. x x x
Section 21 of R.A. 6770 names the officials subject to
the Ombudsmans disciplinary authority x x x.
Petitioner is an elective local official accused of grave
misconduct and dishonesty. That the Office of the
Ombudsman may conduct an administrative
investigation into the acts complained of, appears clear
from the foregoing provisions of R.A. 6770.
However, the question of whether or not the
Ombudsman may conduct an investigation over a
particular act or omission is different from the question
of whether or not petitioner, after investigation, may
be held administratively liable. This distinction ought
here to be kept in mind even as we must also take
note that the power to investigate is distinct from thepower to suspend preventively an erring public officer.
Likewise worthy of note, the power of the Office of the
Ombudsman to preventively suspend an official subject
to its administrative investigation is provided by
specific provision of law. x x x
We have previously interpreted the phrase under his
authority to mean that the Ombudsman can
preventively suspend all officials under investigation by
his office, regardless of the branch of government in
which they are employed, excepting of course those
removable by impeachment, members of Congress and
the Judiciary.
The power to preventively suspend is available not
only to the Ombudsman but also to the Deputy
Ombudsman. This is the clear import of Section 24 of
R.A. 6770 abovecited.
There can be no question in this case as to the power
and authority of respondent Deputy Ombudsman to
issue an order of preventive suspension against an
official like the petitioner, to prevent that official from
using his office to intimidate or influence
witnesses (Gloria v. CA, et al., G.R. No. 131012, April
21, 1999, p. 7, 306 SCRA 287)or to tamper with
records that might be vital to the prosecution of the
case against him (Yasay, Jr. v. Desierto, et al., G.R.
No. 134495, December 28, 1998, p. 9, 300 SCRA
494). In our view, the present controversy simply
boils down to this pivotal question: Given the purpose
of preventive suspension and the circumstances of thiscase, did respondent Deputy Ombudsman commit a
grave abuse of discretion when he set the period of
preventive suspension at six months?
Preventive suspension under Sec. 24, R.A. 6770 x x x
may be imposed when, among other factors, the
evidence of guilt is strong. The period for which an
official may be preventively suspended must not
exceed six months. In this case, petitioner was
preventively suspended and ordered to cease and
desist from holding office for the entire period of six
months, which is the maximum provided by law.
The determination of whether or not the evidence of
guilt is strong as to warrant preventive suspension
rests with the Ombudsman. The discretion as regards
the period of such suspension also necessarily belongs
to the Ombudsman, except that he cannot extend the
period of suspension beyond that provided by
law. But, in our view, both the strength of the
evidence to warrant said suspension and the propriety
of the length or period of suspension imposed on
petitioner are properly raised in this petition for
certiorari and prohibition. X x x
Given these findings, we cannot say now that there is
no evidence sufficiently strong to justify the imposition
of preventive suspension against petitioner. But
considering its purpose and the circumstances in the
case brought before us, it does appear to us that the
imposition of the maximum period of six months is
unwarranted.
X x x [G]ranting that now the evidence against
petitioner is already strong, even without conceding
that initially it was weak, it is clear to us that the
maximum six-month period is excessive and definitelylonger than necessary for the Ombudsman to make its
legitimate case against petitioner. We must conclude
that the period during which petitioner was already
preventively suspended, has been sufficient for the
lawful purpose of preventing petitioner from hiding and
destroying needed documents, or harassing and
preventing witnesses who wish to appear against
him. (Garcia v. Mojica, 314 SCRA 207, Sept. 10,
1999, 2ndDiv. [Quisumbing])
Distinguish preventive suspension under the
Local Government Code from preventive
suspension under the Ombudsman Act.
Held: We reach the foregoing conclusion, however,
without necessarily subscribing to petitioners claim
that the Local Government Code, which he averred
should apply to this case of an elective local official,
has been violated. True, under said Code, preventive
suspension may only be imposed after the issues are
joined, and only for a maximum period of sixty days.
Here, petitioner was suspended without having had the
chance to refute first the charges against him, and for
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the maximum period of six months provided by the
Ombudsman Law. But as respondents argue,
administrative complaints commenced under the
Ombudsman Law are distinct from those initiated
under the Local Government Code. Respondents point
out that the shorter period of suspension under the
Local Government Code is intended to limit the period
of suspension that may be imposed by a mayor, a
governor, or the President, who may be motivated by
partisan political considerations. In contrast theOmbudsman, who can impose a longer period of
preventive suspension, is not likely to be similarly
motivated because it is a constitutional body. The
distinction is valid but not decisive, in our view, of
whether there has been grave abuse of discretion in a
specific case of preventive suspension.
Respondents may be correct in pointing out
the reason for the shorter period of preventive
suspension imposable under the Local Government
Code. Political color could taint the exercise of the
power to suspend local officials by the mayor,governor, or Presidents office. In contrast the
Ombudsman, considering the constitutional origin of
his Office, always ought to be insulated from the
vagaries of politics, as respondents would have us
believe.
In Hagad v. Gozo-Dadole, on the matter of
whether or not the Ombudsman has been stripped of
his power to investigate local elective officials by virtue
of the Local Government Code, we said:
Indeed, there is nothing in the Local Government
Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the
Ombudsman Act. The two statutes on the specific
matter in question are not so inconsistent, let alone
irreconcilable, as to compel us to only uphold one and
strike down the other.
It was also argued in Hagad, that the six-
month preventive suspension under the Ombudsman
Law is much too repugnant to the 60-day period that
may be imposed under the Local Government Code.
But per J. Vitug, the two provisions govern
differently.
However, petitioner now contends
that Hagaddid not settle the question of whether a
local elective official may be preventively suspended
even before the issues could be joined. Indeed it did
not, but we have held in other cases that there could
be preventive suspension even before the charges
against the official are heard, or before the official is
given an opportunity to prove his innocence.
Preventive suspension is merely a preliminary step in
an administrative investigation and is not in any way
the final determination of the guilt of the official
concerned.
Petitioner also avers that the suspension
order against him was issued in violation of Section
26[2] of the Ombudsman Law x x x.
Petitioner argues that before an inquiry
may be converted into a full-blown administrative
investigation, the official concerned must be given 72
hours to answer the charges against him. In his case,
petitioner says the inquiry was converted into an
administrative investigation without him being given
the required number of hours to answer.
Indeed, it does not appear that petitioner
was given the requisite 72 hours to submit a written
answer to the complaint against him. This, however,
does not make invalid the preventive suspension order
issued against him. As we have earlier stated, a
preventive suspension order may be issued even
before the charges against the official concerned isheard.
Moreover, respondents state that petitioner was given
10 days to submit his counter-affidavit to the
complaint filed by respondent Tagaan. We find this
10-day period is in keeping with Section 5[a] of the
Rules of Procedure of the Office of the Ombudsman x x
x. (Garcia v. Mojica, 314 SCRA 207, Sept. 10,
1999, 2ndDiv. [Quisumbing])
Does Section 13, Republic Act No. 3019 exclude
from its coverage the members of Congress and,
therefore, the Sandiganbayan erred in decreeing
the preventive suspension order against Senator
Miriam Defensor-Santiago? Will the order of
suspension prescribed by Republic Act No. 3019
not encroach on the power of Congress to
discipline its own ranks under the Constitution?
Held: The petition assails the authority of
the Sandiganbayan to decree a ninety-day preventive
suspension of Mme. Miriam Defensor-Santiago, a
Senator of the Republic of the Philippines, from any
government position, and furnishing a copy thereof to
the Senate of the Philippines for the implementation ofthe suspension order.
The authority of the Sandiganbayan to
order the preventive suspension of an incumbent
public official charged with violation of the provisions
of Republic Act No. 3019 has both legal and
jurisprudential support. X x x
In the relatively recent case ofSegovia v.
Sandiganbayan, the Court reiterated:
The validity of Section 13, R.A. 3019, as amended
treating of the suspensionpendente lite of an accused
public officer may no longer be put at issue, having
been repeatedly upheld by this Court.
The provision of suspensionpendente lite applies to
all persons indicted upon a valid information under the
Act, whether they be appointive or elective officials; or
permanent or temporary employees, or pertaining to
the career or non-career service. (At pp. 336-337)
It would appear, indeed, to be a ministerial
duty of the court to issue an order of suspension upon
determination of the validity of the information filedbefore it. Once the information is found to be
sufficient in form and substance, the court is bound to
issue an order of suspension as a matter of course,
and there seems to be noifs and butsabout it.
Explaining the nature of the preventive suspension, the
Court in the case ofBayot v. Sandiganbayan:
x x x It is not a penalty because it is not imposed as a
result of judicial proceedings. In fact, if acquitted, the
official concerned shall be entitled to reinstatement
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and to the salaries and benefits which he failed to
receive during suspension.
In issuing the preventive suspension of
petitioner, the Sandiganbayan merely adhered to the
clear and unequivocal mandate of the law, as well as
the jurisprudence in which the Court has, more than
once, upheld Sandiganbayans authority to decree the
suspension of public officials and employees indicted
before it.
Section 13 of Republic Act No. 3019 does
not state that the public officer concerned must be
suspended only in the office where he is alleged to
have committed the acts with which he has been
charged. Thus, it has been held that the use of the
word office would indicate that it applies to any office
which the officer charged may be holding, and not only
the particular office under which he stands accused.
(Bayot v. Sandiganbayan, supra; Segovia v.
Sandiganbayan, supra.)
En passant, while the imposition of
suspension is not automatic or self-operative as the
validity of the information must be determined in a
pre-suspension hearing, there is no hard and fast rule
as to the conduct thereof. It has been said that
x x x No specific rules need be laid down for such
pre-suspension hearing. Suffice it to state that the
accused should be given a fair and adequate
opportunity to challenge the VALIDITY OF THE
CRIMINAL PROCEEDINGS against him, e.g., that he
has not been afforded the right of due preliminary
investigation; that the acts for which he standscharged do not constitute a violation of the provisions
of Republic Act 3019 or the bribery provisions of the
Revised Penal Code which would warrant his
mandatory suspension from office under Section 13 of
the Act; or he may present a motion to quash the
information on any of the grounds provided for in Rule
117 of the Rules of Court x x x.
Likewise, he is accorded the
right to challenge the propriety of his prosecution on
the ground that the acts for which he is charged do not
constitute a violation of Rep. Act 3019, or of theprovisions on bribery of the Revised Penal Code, and
the right to present a motion to quash the information
on any other grounds provided in Rule 117 of the Rules
of Court.
However, a challenge to the validity of the criminal
proceedings on the ground that the acts for which the
accused is charged do not constitute a violation of the
provisions of Rep. Act No. 3019, or of the provisions on
bribery of the Revised Penal Code, should be treated
only in the same manner as a challenge to the criminal
proceeding by way of a motion to quash on the ground
provided in Paragraph (a), Section 2 of Rule 117 of the
Rules of Court, i.e., that the facts charged do not
constitute an offense. In other words, a resolution of
the challenge to the validity of the criminal proceeding,
on such ground, should be limited to an inquiry
whether the facts alleged in the information, if
hypothetically admitted, constitute the elements of an
offense punishable under Rep. Act 3019 or the
provisions on bribery of the Revised Penal
Code.(Luciano v. Mariano, 40 SCRA 187 [1971];
People v. Albano, 163 SCRA 511, 517-519 [1988])
The law does not require that the guilt of
the accused must be established in a pre-suspension
proceeding before trial on the merits proceeds.
Neither does it contemplate a proceeding to determine
(1) the strength of the evidence of culpability against
him, (2) the gravity of the offense charged, or (3)
whether or not his continuance in office could influence
the witnesses or pose a threat to the safety and
integrity of the records and other evidence before the
court could have a valid basis in decreeing preventivesuspension pending the trial of the case. All it secures
to the accused is adequate opportunity to challenge
the validity or regularity of the proceedings against
him, such as, that he has not been afforded the right
to due preliminary investigation, that the acts imputed
to him do not constitute a specific crime warranting his
mandatory suspension from office under Section 13 of
Republic Act No. 3019, or that the information is
subject to quashal on any of the grounds set out in
Section 3, Rule 117, of the Revised Rules on Criminal
Procedure.
The pronouncement, upholding the validity
of the information filed against petitioner, behooved
Sandiganbayan to discharge its mandated duty to
forthwith issue the order of preventive suspension.
The order of suspension prescribed by
Republic Act No. 3019 is distinct from the power of
Congress to discipline its own ranks under the
Constitution which provides that each
x x x house may determine the rules of its
proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-thirds of all
its Members, suspend or expel a Member. A penalty of
suspension, when imposed, shall not exceed sixty
days. (Section 16[3], Article VI, 1987 Constitution)
The suspension contemplated in the above
constitutional provision is a punitive measure that is
imposed upon determination by the Senate or the
House of Representatives, as the case may be, upon
an erring member. Thus, in its resolution in the case
ofCeferino Paredes, Jr. v. Sandiganbayan, et al., the
Court affirmed the order of suspension of
Congressman Paredes by the Sandiganbayan, despitehis protestations on the encroachment by the court on
the prerogatives of Congress. The Court ruled:
x x x Petitioners invocation of Section 16 (3), Article
VI of the Constitution which deals with the power of
each House of Congress inter alia to punish its
Members for disorderly behavior, and suspend or
expel a Member by a vote of two-thirds of all its
Members subject to the qualification that the penalty
of suspension, when imposed, should not exceed sixty
days in unavailing, as it appears to be quite distinct
from the suspension spoken of in Section 13 of RA
3019, which is not a penalty but a preliminary,
preventive measure, prescinding from the fact that the
latter is not being imposed on petitioner for
misbehavior as a Member of the House of
Representatives.
The doctrine of separation of powers by itself may not
be deemed to have effectively excluded Members of
Congress from Republic Act No. 3019 nor from its
sanctions. The maxim simply recognizes each of the
three co-equal and independent, albeit coordinate,
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branches of the government the Legislative, the
Executive and the Judiciary has exclusive
prerogatives and cognizance within its own sphere of
influence and effectively prevents one branch from
unduly intruding into the internal affairs of either
branch.
Parenthetically, it might be well to elaborate a bit.
Section 1, Article VIII, of the 1987 Constitution,
empowers the Court to act not only in the settlementof actual controversies involving rights which are
legally demandable and enforceable, but also in the
determination of whether or not there has been a
grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or
instrumentality of the government. The provision
allowing the Court to look into any possible grave
abuse of discretion committed by any government
instrumentality has evidently been couched in general
terms in order to make it malleable to judicial
interpretation in the light of any emerging milieu. In
its normal concept, the term has been said to imply anarbitrary, despotic, capricious or whimsical exercise of
judgment amounting to lack or excess of jurisdiction.
When the question, however, pertains to an affair
internal to either of Congress or the Executive, the
Court subscribes to the view that unless an
infringement of any specific Constitutional proscription
thereby inheres the Court should not deign substitute
its own judgment over that of any of the other two
branches of government. It is an impairment or a
clear disregard of a specific constitutional precept or
provision that can unbolt the steel door for judicial
intervention. If any part of the Constitution is not, orceases to be, responsive to contemporary needs, it is
the people, not the Court, who must promptly react in
the manner prescribed by the Charter itself.
Republic Act No. 3019 does not exclude from its
coverage the members of Congress and that,
therefore, the Sandiganbayan did not err in thus
decreeing the assailed preventive suspension order.
Attention might be called to the fact that Criminal Case
No. 16698 has been decided by the First Division of
the Sandiganbayan on 06 December 1999, acquitting
herein petitioner. The Court, nevertheless, deems itappropriate to render this decision for future guidance
on the significant issue raised by
petitioner. (Santiago v. Sandiganbayan, 356 SCRA
636, April 18, 2001, En Banc [Vitug])
May an elective public official be validly
appointed or designated to any public office or
position during his tenure?
Ans.: No elective official shall be eligible
for appointment or designation in any capacity to any
public office or position during his tenure. (Sec. 7,
1stpar., Art. IX-B, 1987 Constitution)
May an appointive public official hold any other
office or employment?
Ans.: Unless otherwise allowed by law or
by the primary functions of his position, no appointive
official shall hold any other office or employment in the
Government or any subdivision, agency or
instrumentality thereof, including government-owned
or controlled corporation. (Sec. 7, 2ndpar., Art. IX-
B, 1987 Constitution)
May the President, Vice-President, Members of
the Cabinet, their deputies or assistants hold any
other office or employment?
Ans.: The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment
during their tenure. (Sec. 13, Art. VII, 1987
Constitution)
Does the prohibition in Section 13, Article VII of the
1987 Constitution insofar as Cabinet members, their
deputies or assistants are concerned admit of the
broad exceptions made for appointive officials in
general under Section 7, par. (2), Article IX-B?
Held: The threshold question therefore is:
does the prohibition in Section 13, Article VII of the
1987 Constitution insofar as Cabinet members, their
deputies or assistants are concerned admit of the
broad exceptions made for appointive officials in
general under Section 7, par. (2), Article IX-B which,
for easy reference is quoted anew, thus: Unless
otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any
other office or employment in the government or any
subdivision, agency or instrumentality thereof,
including government-owned or controlled corporationor their subsidiaries.
We rule in the negative.
The practice of designating members of the
Cabinet, their deputies and assistants as members of
the governing bodies or boards of various government
agencies and instrumentalities, including government-
owned and controlled corporations, became prevalent
during the time legislative powers in this country were
exercised by former President Ferdinand E. Marcos
pursuant to his martial law authority. There was a
proliferation of newly-created agencies,
instrumentalities and government-owned and
controlled corporations created by presidential decrees
and other modes of presidential issuances where
Cabinet members, their deputies or assistants were
designated to head or sit as members of the board
with the corresponding salaries, emoluments, per
diems, allowances and other perquisites of office. X x
x
This practice of holding multiple offices or
positions in the government soon led to abuses by
unscrupulous public officials who took advantage ofthis scheme for purposes of self-enrichment. X x x
Particularly odious and revolting to the
peoples sense of propriety and morality in government
service were the data contained therein that Roberto v.
Ongpin was a member of the governing boards of
twenty-nine (29) governmental agencies,
instrumentalities and corporations; Imelda R. Marcos
of twenty-three (23); Cesar E.A. Virata of twenty-two
(22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S.
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Hipolito and Geronimo Z. Velasco, of fourteen each
(14); Cesar C. Zalamea of thirteen (13); Ruben B.
Ancheta and Jose A. Rono of twelve (12) each; Manuel
P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas
of eleven (11) each; and Lilia Bautista and Teodoro Q.
Pena of ten (10) each.
The blatant betrayal of public trust evolved
into one of the serious causes of discontent with the
Marcos regime. It was therefore quite inevitable andin consonance with the overwhelming sentiment of the
people that the 1986 Constitutional Commission,
convened as it was after the people successfully
unseated former President Marcos, should draft into its
proposed Constitution the provisions under
consideration which are envisioned to remedy, if not
correct, the evils that flow from the holding of multiple
governmental offices and employment. X x x
But what is indeed significant is the fact
that although Section 7, Article IX-B already contains a
blanket prohibition against the holding of multipleoffices or employment in the government subsuming
both elective and appointive public officials, the
Constitutional Commission should see it fit to
formulate another provision, Sec. 13, Article VII,
specifically prohibiting the President, Vice-President,
members of the Cabinet, their deputies and assistants
from holding any other office or employment during
their tenure, unless otherwise provided in the
Constitution itself.
Evidently, from this move as well as in the
different phraseologies of the constitutional provisions
in question, the intent of the framers of the
Constitution was to impose a stricter prohibition on the
President and his official family in so far as holding
other offices or employment in the government or
elsewhere is concerned.
Moreover, such intent is underscored by a
comparison of Section 13, Article VII with other
provisions of the Constitution on the disqualifications
of certain public officials or employees from holding
other offices or employment. Under Section 13, Article
VI, [N]o Senator or Member of the House of
Representatives may hold any other office oremployment in the Government x x x. Under section
5(4), Article XVI, [N]o member of the armed forces in
the active service shall, at any time, be appointed in
any capacity to a civilian position in the
Government, including government-owned or
controlled corporations or any of their subsidiaries.
Even Section 7(2), Article IX-B, relied upon by
respondents provides [U]nless otherwise allowed by
law or by the primary functions of his position, no
appointive official shall hold any other office or
employment in the Government.
It is quite notable that in all these
provisions on disqualifications to hold other office or
employment, the prohibition pertains to an office or
employment in the governmentand government-
owned or controlled corporations or their subsidiaries.
In striking contrast is the wording of Section 13, Article
VII which states that [T]he President, Vice-President,
the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment
during their tenure. In the latter provision, the
disqualification is absolute, not being qualified by the
phrase in the Government. The prohibition imposed
on the President and his official family is therefore all-
embracing and covers both public and private office or
employment.
Going further into Section 13, Article VII,
the second sentence provides: They shall not, during
said tenure, directly or indirectly, practice any otherprofession, participate in any business, or be
financially interested in any contract with, or in any
franchise, or special privilege granted by the
Government or any subdivision, agency or
instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries. These
sweeping, all-embracing prohibitions imposed on the
President and his official family, which prohibitions are
not similarly imposed on other public officials or
employees such as the Members of Congress,
members of the civil service in general and members
of the armed forces, are proof of the intent of the 1987Constitution to treat the President and his official
family as a class by itself and to impose upon said
class stricter prohibitions.
Thus, while all other appointive officials in
the civil service are allowed to hold other office or
employment in the government during their tenure
when such is allowed by law or by the primary
functions of their positions, members of the Cabinet,
their deputies and assistants may do so only when
expressly authorized by the Constitution itself. In
other words, Section 7, Article IX-B is meant to lay
down the general rule applicable to all elective and
appointive public officials and employees, while Section
13, Article VII is meant to be the exception applicable
only to the President, the Vice-President, Members of
the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase
unless otherwise provided in this Constitution in
Section 13, Article VII cannot possibly refer to the
broad exceptions provided under Section 7, Article IX-
B of the 1987 Constitution. To construe said qualifying
phrase as respondents would have us to do, would
render nugatory and meaningless the manifest intentand purpose of the framers of the Constitution to
impose a stricter prohibition on the President, Vice-
President, Members of the Cabinet, their deputies and
assistants with respect to holding other offices or
employment in the government during their tenure.
Respondents interpretation that Section 13 of Article
VII admits of the exceptions found in Section 7, par.
(2) of Article IX-B would obliterate the distinction so
carefully set by the framers of the Constitution as to
when the high-ranking officials of the Executive Branch
from the President to assistant Secretary, on the one
hand, and the generality of civil servants from the rankimmediately below Assistant Secretary downwards, on
the other, may hold any other office or position in the
government during their tenure.
Moreover, respondents reading of the
provisions in question would render certain parts of the
Constitution inoperative. This observation applies
particularly to the Vice-President who, under Section
13 of Article VII is allowed to hold other office or
employment when so authorized by the Constitution,
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but who as an elective public official under Sec. 7, par.
(1) of Article IX-B is absolutely ineligible for
appointment or designation in any capacity to any
public office or position during his tenure. Surely, to
say that the phrase unless otherwise provided in this
Constitution found in Section 13, Article VII has
reference to Section 7, par. (1) of Article IX-B would
render meaningless the specific provisions of the
Constitution authorizing the Vice-President to become
a member of the Cabinet (Sec. 3, Ibid.), and to act asPresident without relinquishing the Vice-Presidency
where the President shall not have been chosen or fails
to qualify (Sec. 7, Article VII). Such absurd
consequence can be avoided only by interpreting the
two provisions under consideration as one, i.e., Section
7, par. (1) of Article IX-B providing the general rule
and the other, i.e., Section 13, Article VII as
constituting the exception thereto. In the same
manner must Section 7, par. (2) of Article IX-B be
construed vis--vis Section 13, Article VII.
Since the evident purpose of the framers ofthe 1987 Constitution is to impose a stricter prohibition
on the President, Vice-President, members of the
Cabinet, their deputies and assistants with respect to
holding multiple offices or employment in the
government during their tenure, the exception to this
prohibition must be read with equal severity. On its
face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended
to be a positive and unequivocal negation of the
privilege of holding multiple government offices and
employment. Verily, wherever the language used in
the constitution is prohibitory, it is to be understood asintended to be a positive and unequivocal negation
(Varney v. Justice, 86 Ky 596; 6 S.W. 457; Hunt v.
State, 22 Tex. App. 396, 3 S.W. 233). The phrase
unless otherwise provided in this Constitution must
be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to
wit: the Vice-President being appointed as a member
of the Cabinet under Section 3, par. (2), Article VII; or
acting as President in those instances provided under
Section 7, pars. (2) and (3), Article VII; and, the
Secretary of Justice being ex-officiomember of the
Judicial and Bar Council by virtue of Section 8 (1),
Article VIII.
It being clear x x x that the 1987
Constitution seeks to prohibit the President, Vice-
President, members of the Cabinet, their deputies or
assistants from holding during their tenure multiple
offices or employment in the government, except in
those cases specified in the Constitution itself and as
above clarified with respect to posts held without
additional compensation in an ex-officio capacity as
provided by law and as required by the primary
functions of their office, the citation of Cabinet
members (then called Ministers) as examples duringthe debate and deliberation on the general rule laid
down for all appointive officials should be considered
as mere personal opinions which cannot override the
constitutions manifest intent and the peoples
understanding thereof.
In the light of the construction given to
Section 13, Article VII in relation to Section 7, par. (2),
Article IX-B of the 1987 Constitution, Executive Order
No. 284 dated July 23, 1987 is unconstitutional.
Ostensibly restricting the number of positions that
Cabinet members, undersecretaries or assistant
secretaries may hold in addition to their primary
position to not more than two (2) positions in the
government and government corporations, Executive
Order No. 284 actually allows them to hold multiple
offices or employment in direct contravention of the
express mandate of Section 13, Article VII of the 1987
Constitution prohibiting them from doing so, unless
otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the
impractical consequences that will result from a strict
application of the prohibition mandated under Section
13, Article VII on the operations of the Government,
considering that Cabinet members would be stripped of
their offices held in an ex-officio capacity, by reason of
their primary positions or by virtue of legislation. As
earlier clarified in this decision, ex-officio posts held by
the executive official concerned without additional
compensation as provided by law and as required by
the primary functions of his office do not fall under thedefinition of any other office within the contemplation
of the constitutional prohibition. With respect to other
offices or employment held by virtue of legislation,
including chairmanships or directorships in
government-owned or controlled corporations and their
subsidiaries, suffice it to say that the feared
impractical consequences are more apparent than
real. Being head of an executive department is no
mean job. It is more than a full-time job, requiring full
attention, specialized knowledge, skills and expertise.
If maximum benefits are to be derived from a
department heads ability and expertise, he should beallowed to attend to his duties and responsibilities
without the distraction of other governmental offices or
employment. He should be precluded from dissipating
his efforts, attention and energy among too many
positions and responsibility, which may result in
haphazardness and inefficiency. Surely the
advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this
stage of our national and economic development, far
outweigh the benefits, if any, that may be gained from
a department head spreading himself too thin and
taking in more than what he can handle.
Finding Executive Order No. 284 to be
constitutionally infirm, the Court hereby orders
respondents x x x to immediately relinquish their
other offices or employment, as herein defined,
in the government, including government-owned
or controlled corporations and their
subsidiaries. (Civil Liberties Union v. Executive
Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc
[Fernan, CJ])
Does the prohibition against holding dual or
multiple offices or employment under Section 13,Article VII of the Constitution apply to posts
occupied by the Executive officials specified
therein without additional compensation in an
ex-officio capacity as provided by law and as
required by the primary functions of said
officials office?
Held: The prohibition against holding dual
or multiple offices or employment under Section 13,
Article VII of the Constitution must not, however, be
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construed as applying to posts occupied by the
Executive officials specified therein without additional
compensation in an ex-officio capacity as provided by
law and asrequired(As opposed to the term allowed
used in Section 7, par. (2), Article IX-B of the
Constitution, which is permissive. Required suggests
an imposition, and therefore, obligatory in nature) by
the primary functions of said officials office. The
reason is that these posts do not comprise any other
office within the contemplation of the constitutionalprohibition but are properly an imposition of additional
duties and functions on said officials. To characterize
these posts otherwise would lead to absurd
consequences, among which are: The President of the
Philippines cannot chair the National Security Council
reorganized under Executive Order No. 115. Neither
can the Vice-President, the Executive Secretary, and
the Secretaries of National Defense, Justice, Labor and
Employment and Local Government sit in this Council,
which would then have no reason to exist for lack of a
chairperson and members. The respective
undersecretaries and assistant secretaries, would alsobe prohibited.
Indeed, the framers of our Constitution
could not have intended such absurd consequences. A
Constitution, viewed as a continuously operative
charter of government, is not to be interpreted as
demanding the impossible or the impracticable; and
unreasonable or absurd consequences, if possible,
should be avoided.
To reiterate, the prohibition under Section
13, Article VII is not to be interpreted as covering
positions held without additional compensation in ex-
officiocapacities as provided by law and as required by
the primary functions of the concerned officials office.
The term ex-officio means from office; by virtue of
office. It refers to an authority derived from official
character merely, not expressly conferred upon the
individual character, but rather annexed to the official
position.Ex officio likewise denotes an act done in an
official character, or as a consequence of office, and
without any other appointment or authority than that
conferred by the office. An ex-officio member of a
board is one who is a member by virtue of his title to a
certain office, and without further warrant or
appointment. To illustrate, by express provision of
law, the Secretary of Transportation and
Communications is theex-officio Chairman of the Board
of the Philippine Ports Authority (Sec. 7, E.O. 778),
and the Light Rail Transit Authority (Sec. 1, E.O. 210).
The Court had occasion to explain the
meaning of an ex-officio position inRafael v.
Embroidery and Apparel Control and Inspection Board,
thus: An examination of Section 2 of the questioned
statute (R.A. 3137) reveals that for the chairman and
members of the Board to qualify they need only bedesignated by the respective department heads. With
the exception of the representative from the private
sector, they sit ex-officio. I order to be designated
they must already be holding positions in the offices
mentioned in the law. Thus, for instance, one who
does not hold a previous appointment in the Bureau of
Customs, cannot, under the act, be designated a
representative from that office. The same is true with
respect to the representatives from the other offices.
No new appointments are necessary. This is as it
should be, because the representatives so
designated merely perform duties in the Board in
addition to those already performed under their
original appointments.
The term primary used to describe
functions refers to the order of importance and thus
means chief or principal function. The term is not
restricted to the singular but may refer to the
plural (33A Words and Phrases, p. 210). Theadditional duties must not only be closely related to,
but must be required by the officials primary
functions. Examples of designations to positions by
virtue of ones primary functions are the Secretaries of
Finance and Budget sitting as members of the
Monetary Board, and the Secretary of Transportation
and Communications acting as Chairman of the
Maritime Industry Authority and the Civil Aeronautics
Board.
If the functions to be performed are merely
incidental, remotely related, inconsistent,incompatible, or otherwise alien to the primary
function of a cabinet official, such additional functions
would fall under the purview of any other office
prohibited by the Constitution. An example would be
the Press Undersecretary sitting as a member of the
Board of the Philippine Amusement and Gaming
Corporation. The same rule applies to such positions
which confer on the cabinet official management
functions and/or monetary compensation, such as but
not limited to chairmanships or directorships in
government-owned or controlled corporations and their
subsidiaries.
Mandating additional duties and functions to
the President, Vice-President, Cabinet Members, their
deputies or assistants which are not inconsistent with
those already prescribed by their offices or
appointments by virtue of their special knowledge,
expertise and skill in their respective executive offices
is a practice long-recognized in many jurisdictions. It
is a practice justified by the demands of efficiency,
policy direction, continuity and coordination among the
different offices in the Executive Branch in the
discharge of its multifarious tasks of executing and
implementing laws affecting national interest andgeneral welfare and delivering basic services to the
people. It is consistent with the power vested on the
President and his alter egos, the Cabinet members, to
have control of all the executive departments, bureaus
and offices and to ensure that the laws are faithfully
executed. Without these additional duties and
functions being assigned to the President and his
official family to sit in the governing bodies or boards
of governmental agencies or instrumentalities in an ex-
officio capacity as provided by law and as required by
their primary functions, they would be deprived of the
means for control and supervision, thereby resulting inan unwieldy and confused bureaucracy.
It bears repeating though that in order that
such additional duties or functions may not transgress
the prohibition embodied in Section 13, Article VII of
the 1987 Constitution, such additional duties or
functions must be required by the primary functions of
the official concerned, who is to perform the same in
an ex-officio capacity as provided by law, without
receiving any additional compensation therefor.
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The ex-officio position being actually and in
legal contemplation part of the principal office, it
follows that the official concerned has no right to
receive additional compensation for his services in the
said position. The reason is that these services are
already paid for and covered by the compensation
attached to his principal office. It should be obvious
that if, say, the Secretary of Finance attends a meeting
of the Monetary Board as an ex-officio member
thereof, he is actually and in legal contemplationperforming the primary function of his principal office
in defining policy in monetary and banking matters,
which come under the jurisdiction of his department.
For such attendance, therefore, he is not entitled to
collect any extra compensation, whether it be in the
form of a per diem or an honorarium or an allowance,
or some other such euphemism. By whatever name it
is designated, such additional compensation is
prohibited by the Constitution. (Civil Liberties Union
v. Executive Secretary, 194 SCRA 317, Feb. 22,
1991, En Banc [Fernan, CJ])
Should members of the Cabinet appointed to
other positions in the government pursuant to
Executive Order No. 284 which later was
declared unconstitutional by the SC for being
violative of Section 13, Article VII of the
Constitution be made to reimburse the
government for whatever pay and emoluments
they received from holding such other positions?
Held: During their tenure in the
questioned positions, respondents may be
considered de facto officers and as such entitled to
emoluments for actual services rendered. It has been
held that in cases where there is node jure officer,
a de factoofficer, who, in good faith has had
possession of the office and has discharged the duties
pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate
action recover the salary, fees and other
compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it
seems unjust that the public should benefit by the
services of an officer de facto and then be freed from
all liability to pay any one for such services . Any per
diem, allowances or other emoluments received by the
respondents by virtue of actual services rendered in
the questioned positions may therefore be retained by
them. (Civil Liberties Union v. Executive
Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc
[Fernan, CJ])
May a Senator or Congressman hold any other
office or employment?
Ans.: No Senator or Member of the House
of Representatives may hold any other office or
employment in the government, or any subdivision,
agency, or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries, during his term without forfeiting his
seat. Neither shall he be appointed to any office which
may have been created or the emoluments thereof
increased during the term for which he was
elected. (Sec. 13, Art. VI, 1987 Constitution).
What are the situations covered by the law on
nepotism?
Held: Under the definition of nepotism, one is guilty
of nepotism if an appointment is issued in favor of a
relative within the third civil degree of consanguinity or
affinity of any of the following:
a) appointing authority;
b) recommending authority;
c) chief of the bureau or office; and
d) person exercising immediate supervision over
the appointee.
Clearly, there are four situations covered. In the last
two mentioned situations, it is immaterial who the
appointing or recommending authority is. To
constitute a violation of the law, it suffices that an
appointment is extended or issued in favor of a relative
within the third civil degree of consanguinity or affinityof the chief of the bureau or office, or the person
exercising immediate supervision over the
appointee. (CSC v. Pedro O. Dacoycoy, G.R. No.
135805, April 29, 1999, En Banc [Pardo])
What are the exemptions from the operation of
the rules on nepotism?
Ans.: The following are exempted from the operation
of the rules on nepotism: (a) persons employed in a
confidential capacity, (b) teachers, (c) physicians, and(d) members of the Armed Forces of the Philippines.
The rules on nepotism shall likewise not be
applicable to the case of a member of any family who,
after his or her appointment to any position in an office
or bureau, contracts marriage with someone in the
same office or bureau, in which event the employment
or retention therein of both husband and wife may be
allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk.
V, E.O. No. 292)
What is the doctrine of forgiveness or
condonation? Does it apply to pending criminal
cases?
Held: 1. A public official cannot be removed for
administrative misconduct committed during a prior
term, since his re-election to office operates as a
condonation of the officers previous misconduct to the
extent of cutting off the right to remove him therefor.
The foregoing rule, however, finds no application to
criminal cases pending against petitioner. (Aguinaldo
v. Santos, 212 SCRA 768, 773 [1992])
2. A reelected local official may not be held
administratively accountable for misconduct committed
during his prior term of office. The rationale for this
holding is that when the electorate put him back into
office, it is presumed that it did so with full knowledge
of his life and character, including his past
misconduct. If, armed with such knowledge, it still
reelects him, then such reelection is considered a
condonation of his past misdeeds. (Mayor Alvin B.
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Garcia v. Hon. Arturo C. Mojica, et al., G.R. No.
139043, Sept. 10, 1999 [Quisumbing])
What is the Doctrine of Condonation? Illustrative
case.
Held: Petitioner contends that, per our ruling
inAguinaldo v. Santos, his reelection has rendered the
administrative case filed against him moot and
academic. This is because his reelection operates as a
condonation by the electorate of the misconduct
committed by an elective official during his previous
term. Petitioner further cites the ruling of this Court
in Pascual v. Hon. Provincial Board of Nueva Ecija,
citing Conant v. Brogan, that
x x x When the people have elected a man to office,
it must be assumed that they did this with knowledge
of his life and character, and that they disregarded or
forgave his faults or misconduct, if he had been guilty
of any. It is not for the court, by reason of such faultsor misconduct to practically overrule the will of the
people.
Respondents, on the other hand, contend that while
the contract in question was signed during the
previous term of petitioner, it was to commence or be
effective only on September 1998 or during his current
term. It is the respondents submission that petitioner
went beyond the protective confines ofjurisprudence
when he agreed to extend his act to his current term
of office.Aguinaldo cannot apply, according to
respondents, because what is involved in this case is amisconduct committed during a previous term but to
be effective during the current term.
Respondents maintain that,
x x x petitioner performed two acts with respect to
the contract: he provided for a suspensive period
making the supply contract commence or be effective
during his succeeding or current term and during his
current term of office he acceded to the suspensive
period making the contract effective during his current
term by causing the implementation of the contract.
Hence, petitioner cannot take refuge in the
fact of his reelection, according to respondents.
Further, respondents point out that the
contract in question was signed just four days before
the date of the 1998 election and so it could not be
presumed that when the people of Cebu City voted
petitioner to office, they did so with full knowledge of
petitioners character.
On this point, petitioner responds that
knowledge of an officials previous acts is presumed
and the court need not inquire whether, in reelecting
him, the electorate was actually aware of his prior
misdeeds.
Petitioner cites our ruling in Salalima v.
Guingona, wherein we absolved Albay governor Ramon
R. Salalima of his administrative liability as regards a
retainer agreement he signed in favor of a law firm
during his previous term, although disbursements of
public funds to cover payments under the agreement
were still being done during his subsequent term.
Petitioner argues that, following Salalima, the doctrine
ofAguinaldo applies even where the effects of the acts
complained of are still evident during the subsequent
term of the reelected official. The implementation of
the contract is a mere incident of its execution.
Besides, according to petitioner, the sole act for
which he has been administratively charged is the
signing of the contract with F.E. Zuellig. The charge,
in his view, excludes the contracts execution or
implementation, or any act subsequent to theperfection of the contract.
In Salalima, we recall that the Solicitor
General maintained thatAguinaldodid not apply to that
case because the administrative case against Governor
Rodolfo Aguinaldo of Cagayan was already pending
when he filed his certificate of candidacy for his
reelection bid. Nevertheless, in Salalima, the Court
applied theAguinaldodoctrine, even if the
administrative case against Governor Salalima was
filed after his reelection.
We now come to the concluding inquiry.
Granting that the Office of the Ombudsman may
investigate, for purposes provided for by law, the acts
of petitioner committed prior to his present term of
office; and that it may preventively suspend him for a
reasonable period, can that office hold
him administrativelyliable for said acts?
In a number of cases, we have repeatedly
held that a reelected local official may not be held
administratively accountable for misconduct committed
during his prior term of office. The rationale for this
holding is that when the electorate put him back into
office, it is resumed that it did so with full knowledge
of his life and character, including his past
misconduct. If, armed with such knowledge, it still
reelects him, then such reelection is considered a
condonation of his past misdeeds.
However, in the present case, respondents
point out that the contract entered into by petitioner
with F.E. Zuellig was signed just four days before the
date of the elections. It was not made an issue during
the election, and so the electorate could not be said to
have voted for petitioner with knowledge of thisparticular aspect of his life and character.
For his part, petitioner contends that the
only conclusive determining factor as regards the
peoples thinking on the matter is an election. On this
point we agree with petitioner. That the people voted
for an official with knowledge of his character is
presumed, precisely to eliminate the need to
determine, in factual terms, the extent of this
knowledge. Such an undertaking will obviously be
impossible. Our rulings on the matter do not
distinguish the precise timing or period when the
misconduct was committed, reckoned from the date of
the officials reelection, except that it must be prior to
said date.
As held in Salalima,
The rule adopted inPascual, qualified
inAguinaldo insofar as criminal cases are concerned, is
still a good law. Such a rule is not only founded on the
theory that an officials reelection expresses the
sovereign will of the electorate to forgive or condone
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any act or omission constituting a ground for
administrative discipline which was committed during
his previous term. We may add that sound policy
dictates it. To rule otherwise would open the
floodgates to exacerbating endless partisan contests
between the reelected official and his political enemies,
who may not stop to hound the former during his new
term with administrative cases for acts alleged to have
been committed during his previous term. His second
term may thus be devoted to defending himself in thesaid cases to the detriment of public service x x
x.
The above ruling in Salalima applies to this case.
Petitioner cannot anymore be
heldadministrativelyliable for an act done during his
previous term, that is, his signing of the contract with
F.E. Zuellig.
The assailed retainer agreement
in Salalima was executed sometime in 1990.
Governor Salalima was reelected in 1992 andpayments for the retainer continued to be made during
his succeeding term. This situation is no different from
the one in the present case, wherein deliveries of the
asphalt under the contract with F.E. Zuellig and the
payments therefor were supposed to have commenced
on September 1998, during petitioners second term.
However, respondents argue that the
contract, although signed on May 7, 1998, during
petitioners prior term, is to be made effective only
during his present term.
We fail to see any difference to justify avalid distinction in the result. The agreement between
petitioner (representing Cebu City) and F.E. Zuellig
was perfected on the date the contract was signed,
during petitioners prior term. At that moment,
petitioner already acceded to the terms of the contract,
including stipulations now alleged to be prejudicial to
the city government. Thus, any culpability petitioner
may have in signing the contract already became
extant on the day the contract was signed. It hardly
matters that the deliveries under the contract are
supposed to have been made months later.
While petitioner can no longer be held
administratively liable for signing the contract with F.E.
Zuellig, however, this should not prejudice the filing of
any case other than administrative against petitioner.
Our ruling in this case, may not be taken to mean the
total exoneration of petitioner for whatever
wrongdoing, if any, might have been committed in
signing the subject contract. The ruling now is limited
to the question of whether or not he may be
held administrativelyliable therefor, and it is our
considered view that he may not. (Garcia v. Mojica,
314 SCRA 207, Sept. 10, 1999, 2ndDiv.
[Quisumbing])
Petitioner claims that Benipayo has no authority
to remove her as Director IV of the EID and
reassign her to the Law Department. Petitioner
further argues that only the COMELEC, acting as
a collegial body, can authorize such
reappointment. Moreover, petitioner maintains
that a reassignment without her consent
amounts to removal from office without due
process and therefore illegal.
Held: Petitioners posturing will hold water
if Benipayo does not possess any color of title to the
office of Chairman of the COMELEC. We have ruled,
however, that Benipayo is the de jure COMELEC
Chairman, and consequently he has full authority to
exercise all the powers of that office for so long as
his ad interimappointment remains effective. X x x.The Chairman, as the Chief Executive of the COMELEC,
is expressly empowered on his own authority to
transfer or reassign COMELEC personnel in accordance
with the Civil Service Law. In the exercise of this
power, the Chairman is not required by law to secure
the approval of the COMELEC en banc.
Petitioners appointment papers x x x
indisputably show that she held her Director IV
position in the EID only in
an acting or temporarycapacity. Petitioner is not a
Career Executive Service (CES), and neither does shehold Career Executive Service Eligibility, which are
necessary qualifications for holding the position of
Director IV as prescribed in the Qualifications
Standards (Revised 1987) issued by the Civil Service
Commission. Obviously, petitioner does not enjoy
security of tenure as Director IV. X x x
Having been appointed merely in a
temporary or acting capacity, and not possessed of the
necessary qualifications to hold the position of Director
IV, petitioner has no legal basis in claiming that her
reassignment was contrary to the Civil Service Law. X
x x
Still, petitioner assails her reassignment, carried out
during the election period, as a prohibited act under
Section 261 (h) of the Omnibus Election Code x x x.
Petitioner claims that Benipayo failed to secure the
approval of the COMELEC en bancto effect transfers or
reassignments of COMELEC personnel during the
election period. Moreover, petitioner insists that the
COMELEC en bancmust concur to every transfer or
reassignment of COMELEC personnel during the
election period.
Contrary to petitioners allegation, the COMELEC did in
fact issue COMELEC Resolution No. 3300 dated
November 6, 2000, exempting the COMELEC from
Section 261 (h) of the Omnibus Election Code. X x x
The proviso in COMELEC Resolution No. 3300,
requiring due notice and hearing before any transfer or
reassignment can be made within thirty days prior to
election day, refers only to COMELEC fieldpersonnel
and not to head office personnel like the petitioner.
Under the Revised Administrative Code, the COMELEC
Chairman is thesole officerspecifically vested with thepower to transfer or reassign COMELEC personnel.
The COMELEC Chairman will logically exercise the
authority to transfer or reassign COMELEC personnel
pursuant to COMELEC Resolution No. 3300. The
COMELEC en banccannot arrogate unto itself this
power because that will mean amending the Revised
Administrative Code, an act the COMELEC en
banccannot legally do.
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COMELEC Resolution No. 3300 does not require that
every transfer or reassignment of COMELEC personnel
should carry the concurrence of the COMELEC as a
collegial body. Interpreting Resolution No. 3300 to
require such concurrence will render the resolution
meaningless since the COMELEC en bancwill have to
approve every personnel transfer or reassignment,
making the resolution utterly useless. Resolution No.
3300 should be interpreted for what it is, an approval
to effect transfers and reassignments of personnel,without need of securing a second approval from the
COMELEC en bancto actually implement such transfer
or reassignment.
The COMELEC Chairman is the official expressly
authorized by law to transfer or reassign COMELEC
personnel. The person holding that office, in a de
jure capacity, is Benipayo. The COMELEC en banc, in
COMELEC Resolution No. 3300, approved the transfer
or reassignment of COMELEC personnel during the
election period. Thus, Benipayos order reassigning
petitioner from the EID to the Law Department doesnot violate Section 261 (h) of the Omnibus Election
Code. For the same reason, Benipayos order
designating Cinco Officer-in-Charge of the EID is
legally unassailable. (Matibag v. Benipayo, 380
SCRA 49, April 2, 2002, En Banc [Carpio])
May the appointment of a person assuming a
position in the civil service under a completed
appointment be validly recalled or revoked?
Held: It has been held that upon the issuance of anappointment and the appointees assumption of the
position in the civil service, he acquires a legal right
which cannot be taken away either by revocation of
the appointment or by removal except for cause and
with previous notice and hearing. Moreover, it is well-
settled that the person assu