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Duration For a given period, either: • The provision embodies the nature of
(1) Fixed by law, or a public office as a public trust, and
not as a property right.
(2) Enduring at the
pleasure of the appointing
power D. ESSENTIAL ELEMENTS OF A PUBLIC
Nature of the An individual is invested OFFICE:
Exercise (of the with some portion of the
right, authority, sovereign functions of 1. Created by the Constitution, law, or
and duty) government by authority of law.
Object of the For the benefit of the 2. A delegation of some portion of the
Exercise public sovereign power.
3. Powers and functions are defined by
the Constitution, law, or legislative
C. BASIC CONSTITUTIONAL PRINCIPLES authority.
The Philippines is a democratic and
4. Duties pertaining thereto are
republican State. Sovereignty resides in the
people and all government authority performed independently, without
control of a superior power.
emanates from them. [Sec. 1, Art. II,
Constitution] 5. Continuing and permanent in nature.
[DE LEON]
• This is the central or core provision for
the law on public officers.
• The second sentence, in particular, is
the foundation of the law on public
accountability.
• A public officer exercises delegated
powers: A public official exercises
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traffic violations in a judge's sala may owned by the Government, its funds were
be convicted for bribery under the private funds because the Court found
Revised Penal Code. [People v. that it was not imbued with
Maniego, G.R. No. 2971, Apr. 20, 1951] governmental powers. [Id.]
The power to appoint may be granted by law of the President, upon which no limitations
to officials exercising executive functions. may be imposed by Congress, except those
This is expressly sanctioned by the provision resulting [1] from the need of securing the
which holds that “Congress may, by law, vest concurrence of the Commission on
the appointment of other officers lower in Appointments and [2] from the exercise of
rank […] in the heads of departments, the limited legislative power to prescribe the
agencies, commissions, or boards.” [Sec. 16, qualifications to a given appointive office.”
Art. VII, Constitution] [Manalang v. Quitoriano, G.R. No. 6898
(1954)]
• Congress cannot vest such power in
officials not mentioned in the above Legislative appointments: Legislative
provision, such as heads of bureaus. appointments are repugnant to the
[DE LEON] Constitution. [Pineda v. Claudio, G.R. No.
29661 (1967)]
• The power of local chief executives to
appoint local government employees • Effectively legislative appointments also
under the Local Government Code is prohibited: “When Congress clothes the
separately sanctioned in the power of President with the power to appoint an
Congress to “provide for the officer, it (Congress) cannot at the same
qualifications, election, appointment time limit the choice of the President to
and removal, term, salaries, powers only one candidate. […] when the
and functions and duties of local qualifications prescribed by Congress can
officials, and all other matters only be met by one individual, such
relating to the organization and enactment effectively eliminates the
operation of the local units.” [Sec. 3, discretion of the appointing power to
Art. X, Constitution] choose and constitutes an irregular
restriction on the power of appointment.”
Must be unhindered by Congress: The [Flores v. Drilon (1993)] In this case, the
President’s power to appoint under the law assailed provided that “for the first
Constitution should necessarily have a year of its operations from the effectivity
reasonable measure of freedom, latitude, or of this Act, the mayor of the City of
discretion in choosing appointees. Olongapo shall be appointed [by the
[Cuyegkeng v. Cruz, G.R. No. 16263 (1960)] President] as the chairman and chief
“Congress can not either appoint the executive officer of the Subic Authority.”
Commissioner of the Service, or impose upon
• N.B. This is not to be confused with
the President the duty to appoint any
the power of Congress to appoint its
particular person to said office. The
own staff and officials, supra.
appointing power is the exclusive prerogative
C. APPOINTMENT V. DESIGNATION
Designation Appointment
Definition Imposition of additional duties upon existing Appointing authority selects an individual
office. who will occupy a certain public office.
Extent of Limited Comprehensive
Powers
Security of No. The designation may be revoked at will. Yes
Tenure [Binamira v. Garucho, G.R. No. 92008 (1990)]
Abandonment No. While assuming the designated functions Yes. A public officer who later accepts even a
of “Prior” Office or if the designation is revoked, the public temporary appointment terminates his
officer may perform the functions of the relationship with his former office.
“prior” office. [Romualdez III v. CSC (1991)]
2. CLASSIFICATION OF APPOINTMENTS
Constitutional “No officer or employee of the civil service “Temporary employees of the Government
protection shall be removed or suspended except for shall be given such protection as may be
cause provided by law.” [Sec. 2(3), Art. IX-B] provided by law.” [Sec. 2(6), Art. IX-B]
Security of Yes. No. [Sevilla v. CA, G.R. No. 88498 (1992)]
Tenure
Appointments (a) Heads of the executive departments; All other presidential appointments.
covered
(b) Ambassadors; Requirements explicitly exempted from the
confirmation requirement under the
(c) Other public ministers and consuls;
Constitution:
(d) Officers of the armed forces from the
(1) Vice-President as a member of the
rank of colonel or nava captain;
cabinet [Sec. 3, Art. VII];
(e) Other officers whose appointments are
(2) Members of the Supreme Court and
vested in him by the Constitution (unless the
judges of lower courts [Sec. 9, Art. VIII];
Constitution provides that “such
appointments require no confirmation”). (3) The Ombudsman and his deputies [Sec.
9, Art. XI].
[Par. 1, Sec. 16, Art. VII, Constitution]
Generally, officers whose appointments are ii. Regular and Ad Interim [Matibag v.
vested in him by the Constitution require Benipayo, G.R. No. 149036 (2002)]
confirmation by the Commission on
The President shall have the power to make
Appointments (CA) (e.g. chairmen and
appointments during the recess of the
members of the Constitutional Commissions,
Congress, whether voluntary or compulsory,
regular members of the Judicial and Bar
but such appointments shall be effective only
Council).
until disapproved by the Commission on
• As a general exception, appointments Appointments or until the next adjournment
subject to nomination by the Judicial and of the Congress. [Par. 2, Sec. 16, Art. VII,
Bar Council (i.e. members of the judiciary, Constitution]
and the Ombudsman and his deputies)
“require no confirmation.” [Sec. 9, Art. • The classification of whether an
appointment is regular or ad interim
VIII; Sec. 9, Art. XI, Constitution]
is relevant for the purposes of the
• The list of appointments requiring requirement of CA confirmation.
confirmation is exclusive. Congress
cannot, by law, require confirmation by
the CA for a public office created by
statute. This would be unconstitutional
as it expands the powers of the CA.
[Calderon v. Carale, G.R. No. 91636 (1992)]
• The President does not have the
prerogative to voluntarily submit an
appointment for confirmation by the CA.
[Bautista v. Salonga, G.R. No. 86439
(1989)]
Regular Ad Interim
Definition and Appointments made while Congress is in Appointments made “during the recess of
Constitutional session. the Congress, whether voluntary or
Basis compulsory.” [Id.]
When the Upon confirmation by the CA. Immediately after appointment, subject to
appointee (a) disapproval by the CA or (b) “bypass” by
may take oath the CA, infra.
and assume
office
Qualification
Requirements A. WHO MAY PRESCRIBE QUALIFICATIONS
(1) Constitution: When the qualifications are
prescribed by the Constitution, they are
1. DEFINITIONS generally exclusive, except where the
Constitution itself provides otherwise;
Eligibility: The state or quality of being Hence, Congress cannot pass a statute
legally fitted or qualified to be chosen that requires drug testing for candidates
Qualification: Endowment/act which a for the House and Senate, as the
person must do before he can occupy a public qualifications of members of Congress
office. May be understood in two senses: are provided in the Constitution [See
Social Justice Society v. Dangerous Drugs
(1) Endowment: refers to the qualities or Board, G.R. No. 157870 (2008)]
attributes which make an individual
eligible for public office. It must be (2) Congress: In the absence of constitutional
possessed at the time of appointment or inhibition, Congress has the same right to
election and continuously for as long as provide disqualifications that it has to
the official relationship continues provide qualifications for office. [DE LEON]
Notes:
• “Practice of law” means any activity, 5. PARTICULAR QUALIFICATIONS:
in or out of court, which requires the
application of law, legal procedure,
A. RELIGIOUS TEST OR QUALIFICATION IS
knowledge, training and experience.
NOT REQUIRED
Generally, to practice law is to give
No religious test shall be required for the
notice or render any kind of service
exercise of civil or political rights. [Sec. 5, Art.
which requires the use in any degree
III, Const.]
of legal knowledge or skill. [Cayetano
v. Monsod (1991)]
• “Residency” in election law, refers to B. QUALIFICATION STANDARDS AND
domicile, i.e. the place where a party REQUIREMENTS UNDER THE CIVIL
actually or constructively has his SERVICE LAW
permanent home, where he intends Qualification standards enumerate the
to return. To successfully effect a minimum requirements for a class of
change of domicile, the candidate positions in terms of education, training and
must prove an actual removal or an experience, civil service eligibility, physical
actual change of domicile. [Aquino v. fitness, and other qualities required for
COMELEC] successful performance. [Sec. 22, Book V,
• There is a presumption in favor of Admin. Code
domicile of origin. Domicile requires The Departments and Agencies are
the twin elements of actual habitual responsible for continuously establishing,
residence and animus manendi administering and maintaining the
(intent to permanently remain). qualification standards as an incentive to
Domicile of origin is not easily lost; it career advancement. [Sec. 7, Rule IV,
is deemed to continue absent a clear Omnibus Rules]
and positive proof of a successful
change of domicile. [Romualdez- Such establishment, administration, and
Marcos v. COMELEC (1995)] maintenance shall be assisted and approved
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The President, Vice President, Shall not hold any other office or employment during their tenure, unless
the Members of the Cabinet otherwise provided in the Constitution. (Art. VII, Sec. 13) [See Civil Liberties
and their deputies or assistants Union v. Executive Secretary, infra]
Senator or Member of the (1) [Incompatible Office] May not hold during his term any other office or
House of Representatives employment in the Government, or any subdivision, agency or
instrumentality thereof, including government -owned or -controlled
corporations or their subsidiaries;
(2) [Prohibited Office] Shall also not be appointed to any office when
such was created or its emoluments were increased during his term.
[Sec. 13, Art. VI]
Members of the Supreme Court Shall not be designated to any agency performing quasi-judicial or
and other courts established by administrative functions. [Sec. 12, Art. VIII]
law
Rationale: Anathema to judicial independence, since this would subject
members of the judiciary to the power of control of executive officials.
Members of the Constitutional (1) Shall not hold any other office or employment [during their tenure].
Commission [Art. IX-A, Sec. 2] [Art. XI, Sec. 8]
(2) Must not have been candidates for any elective position in the
elections immediately preceding their appointment. [Sec. 1, Art. IX-B;
Sec. 1, Art. IX-C; Sec. 1, Art. IX-D]
Ombudsman and his Deputies (1) Same disqualifications and prohibitions as members of the
Constitutional Commission, supra [Sec. 8, Art. XI]; plus
(2) Shall not be qualified to run for any office in the election immediately
succeeding their cessation from office. [Sec. 11, Art. XI]
The President’s spouse and Shall not be appointed during President’s tenure as:
relatives by consanguinity or
(1) Members of the Constitutional Commissions, or
affinity within the fourth civil
degree (2) Office of the Ombudsman, or
(3) (a) Secretaries, (b) undersecretaries, (c) chairmen or heads of bureaus
or offices, including government-owned-or -controlled corporations.
[Sec. 13, Art. VII]
consent of the Congress, any present, who in good faith has had possession of the
emolument, office, or title of any kind from office and has discharged the duties
any foreign government. [Sec. 8, Art. IX-B] pertaining thereto, is legally entitled to the
emoluments of the office, and may in an
The Congress shall provide for the
appropriate action recover the salary, fees
standardization of compensation of
and other compensations attached to the
government officials and employees,
office.
including those in government-owned or
controlled corporations with original charters,
taking into account the nature of the
responsibilities pertaining to, and the OTHER RIGHTS [De Leon, 2014]
qualifications required for their positions. (1) Rights under the Constitution
[Sec. 5, Art. IX-B]
(a) Right to self-organization
The right to self-organization shall not be
Basis of Right denied to government employees. [Sec.
The relation between an officer and the 2(5), Art. IX-B] Government employees in
public is not the creation of contract, nor is the civil service are granted the right to
the office itself a contract. Hence, his right to form unions enjoyed by workers in the
compensation is not the creation of contract. private sector.
It exists as the creation of law and belongs to However, the constitutional grant to
him not by force of any contract but because government workers of the right to form
the law attaches it to the office. labor organizations or unions does not
The right to compensation grows out of the guarantee them the right to bargain
services rendered. After services have been collectively with the government or to
rendered, the compensation thus earned engage in concerted activities including
cannot be taken away by a subsequent law. the right to strike, which are enjoyed by
private employees. They are prohibited
As a general proposition, a public official is from staging strikes, demonstrations,
not entitled to any compensation if he has mass leaves, walk-outs and other forms
not rendered any service. [Acosta v. CA, of mass actions which will result in
2000] temporary stoppage or disruption of
public services
liable civilly to reimburse the injured Liability on Contracts – the public officer shall
party be personally liable on contracts he enters
into if he acted without, or exceeded his
(2) Criminal Liability: if the law has
authority
attached a penal sanction, the officer
may be punished criminally. The Liability on Tort – The public officer shall be
mere fact that an officer is acting in personally liable if he goes beyond the scope
an official capacity will not relieve of his authority, or exceeds the powers
him from criminal liability. conferred upon him by law
(3) Administrative Liability: such violation
may also lead to imposition of fine, LIABILITY OF SUPERIOR OFFICERS FOR
reprimand, suspension or removal ACTS OF SUBORDINATE OFFICERS
from office, as the case may be. A head of a department or a superior officer
shall not be civilly liable for the wrongful acts,
omissions of duty, negligence or misfeasance
LIABILITY OF MINISTERIAL OFFICERS of his subordinates, unless he has actually
[NACHURA] authorized by written order the specific act or
misconduct complained of [Sec. 38(3),
(1) Nonfeasance - Neglect or refusal to
Administrative Code]
perform an act which is the officer’s
legal obligation to perform
(2) Misfeasance – Failure to use that LIABILITY OF SUBORDINATE OFFICERS
degree of care, skill, and diligence No subordinate officer or employee shall be
required in the performance of official civilly liable for acts done by him in good faith
duty in the performance of his duties. However, he
shall be liable for wilful or negligent acts
(3) Malfeasance – The doing, through
done by him which are contrary to law,
ignorance, inattention or malice, of
morals, public policy and good customs even
an act which he had no legal right to
if he acted under orders or instructions of his
perform
superiors. [Art. 39, Chapter 9, Book I, Admin.
Code]
STATUTORY LIABILITY
(a) Article 32, Civil Code –
NON-APPLICABILITY OF THE DOCTRINE
liability for failure or neglect
OF COMMAND RESPONSIBILITY AND THE
to perform official duty
PRINCIPLE OF RESPONDEAT SUPERIOR
(b) Article 33, Civil Code – TO PUBLIC OFFICERS
liability for violating rights Neither the principle of command
and liberties of private responsibility (in military or political
individuals structural dynamics) nor the doctrine of
(c) Article 34, Civil Code – respondeat superior (in quasi delicts) applies
liability of peace officers for in the law of public officers. The negligence of
render aid or protection to a the subordinate cannot be ascribed to his
person; subsidiary liability of superior in the absence of evidence of the
municipal corporations in latter’s own negligence [Reyes v. Rural Bank
such case of San Miguel (2004)]
(d) Sec. 38(2), Chapter 9, Book I, Exception: The President, being the
Admin. Code -- liability for commander-in-chief of all armed forces,
neglecting to perform a duty necessarily possesses control over the
without just cause within (i) a military that qualifies him as a superior within
period fixed by law or the purview of the command responsibility
regulation; or (ii)a reasonable doctrine. [In the Matter of the Petition for Writ
period, if no period is fixed. of Amparo and Habeas Data in favor of Noriel
Nature He becomes officer with color of title under He possesses office and performs official
the circumstances discussed above acts without actual or apparent authority.
Basis of Authority Color of right or title to office None. Neither lawful title nor color of
right to office.
Validity of Valid as to the public until his title to the Absolutely void; His acts can be
“official” acts office is adjudged insufficient impeached at any time in any proceeding
Rule on Entitled to receive compensation only when Not entitled to compensation at all.
Compensation no de jure officer is declared and only for
actual services rendered.
period for filing the appropriate judicial (3) Removal not for a just cause, or non-
proceeding. compliance with the prescribed
procedure constitutes a reversible
Rationale for the one year period: Title to
error and entitles the officer or
public office should not be subjected to
employee to reinstatement with back
uncertainties but should be determined as
salaries and without loss of seniority
speedily as possible.
rights.
EXCLUSIVE JURISDICTION
2. TRANSFER 4. DETAIL
Transfer – movement from one position to Detail – movement of an employee from one
another which is of equivalent rank, level or agency to another without the issuance of an
salary without break in service. appointment.
This may be imposed as an administrative Requisites for validity
remedy.
(1) Only for a limited period.
General Rule: If transfer is without consent, it
(2) Only for employees occupying
violates security of tenure.
professional, technical and scientific
Exceptions positions.
(1) Temporary Appointee (3) Temporary in nature.
(2) Career Executive Service Personnel whose
status and salaries are based on ranks, not on
5. REASSIGNMENT
position.
An employee may be reassigned from one
organizational unit to another in the SAME
3. REINSTATEMENT agency.
Reinstatement – technically the issuance of a It is a management prerogative of the CSC
new appointment and is discretionary on the and any department or agency embraced in
part of the appointing power. the Civil Service and does not constitute
removal without cause.
It cannot be the subject of an application for
a writ of mandamus. Requisites for validity
Requisites for validity (1) No reduction in rank, status or salary.
(1) Any permanent appointee of a career (2) The reassignment is from one
service position organizational unit to another in the
same agency.
(2) No commission of delinquency or
misconduct, and is not separated. (3) Should have a definite date or
duration (c.f. Detail). Otherwise, a
(3) The reinstatement is to a position in
floating assignment would be
the same level for which the officer is
tantamount to a diminution in status
qualified.
or rank.
Reinstatement has the same effect as
executive clemency, which completely
obliterates the adverse effects of the 6. REEMPLOYMENT
administrative decision which found him
Names of persons who have been appointed
guilty of dishonesty. He is restored ipso facto
permanently to positions in the career service
upon grant of such. Application for
and who have been separated as a result of
reinstatement = unnecessary.
reduction in force and/or reorganization,
shall be entered in a list from which selection
for reemployment shall be made.
Preventive Suspension
The Ombudsman or his Deputy may 2. JUDICIAL REVIEW IN
preventively suspend any officer or employee ADMINISTRATIVE PROCEEDINGS
under his authority pending an investigation:
(1) If in his judgment the evidence of guilt is
strong, and Remedy: Petition for review under Rule 43 of
the Rules of Court with the Court of Appeals.
(2) Either of the following are present:
N.B. The second paragraph of Sec. 14, RA
(a) The charge against such officer or 6770, which states that “[n]o court shall hear
employee involves dishonesty, any appeal or application for remedy against
oppression or grave misconduct or the decision or findings of the Ombudsman,
neglect in the performance of duty; except the Supreme Court, on pure question of
(b) The charges would warrant removal law,” is unconstitutional. Effectively, Congress
from the service; or increased the appellate jurisdiction of the
Supreme Court without its advice and
(c) The respondent's continued stay in concurrence. By confining the remedy to a
office may prejudice the case filed Rule 45 appeal, the provision takes away the
against him. [Sec. 24, RA 6770] remedy of certiorari, grounded on errors of
The preventive suspension shall continue jurisdiction, in denigration of the judicial
until the case is terminated by the Office of power constitutionally vested in courts
the Ombudsman but not more than six (6) [Carpio-Morales v. Court of Appeals, G.R. No.
months, without pay, except when the delay 217126-27 (2015)].
in the disposition of the case by the Office of Decisions or resolutions of the Ombudsman
the Ombudsman is due to the fault, in administrative cases absolving the
negligence or petition of the respondent, in respondent of the charge or imposing upon
which case the period of such delay shall not him the penalty of public censure or
be counted in computing the period of reprimand, suspension of not more than one
suspension herein provided. (Sec. 24, RA month, or a fine equivalent to one month
6770) salary, is final and unappealable. (Agpalo,
Prior notice and hearing is not required 2005)
before suspension may be meted out.
Suspension is not a punishment or penalty
but only a preventive measure to prevent the 3. JUDICIAL REVIEW IN PENAL
respondent from using his position or office PROCEEDINGS
to influence or intimidate prospective
witnesses or tamper with the records which
may be vital in the prosecution of the case General Rule: Courts cannot review the
against them. exercise of discretion of the Ombudsman in
prosecuting or dismissing a criminal
complaint filed before it [Loquias v.
Criminal Jurisdiction Ombudsman, G.R. No. 139396 (2000)].
The Ombudsman exerises primary jurisdiction Exception: When the Ombudsman’s findings
to investigate any act or omission of the are tainted with grave abuse of discretion.
public officer in criminal cases cognizable by In all other cases, the decision shall become
the Sandiganbayan final after the expiration of 10 days from
It has concurrent jurisdiction owith other receipt thereof by the respondent, unless a
investigative agencies with respect to motion for reconsideration or a petition for
criminal cases involving public officers review is filed with the CA pursuant to Rule
cognizable by regular courts [Office of the 43 of the Rules of Court. (Agpalo, 2005)
Ombudsman v. Rodriguez, G.R. No. 172700 See Carpio-Morales v. Court of Appeals
(2010)]. (2015), supra.
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(4) Members of the judiciary without (2) By receiving, directly or indirectly, any
prejudice to the provisions of the commission, gift, share, percentage,
Constitution; kickbacks or any other form of
pecuniary benefit from any person
(5) Chairpersons and members of and/or entity in connection with any
Constitutional Commissions, without government contract or project or by
prejudice to the provisions of the reason of the office or position of the
Constitution; and public officer concerned;
(6) All other national and local officials (3) By the illegal or fraudulent
classified as Grade "27" and higher conveyance or disposition of assets
under the Compensation and Position belonging to the National
Classificafion Act of 1989. Government or any of its subdivisions,
In case private individuals are charged as co- agencies or instrumentalities or
principals, accomplices or accessories with government-owned or controlled
the public officers or employees, including corporations and their subsidiaries,
those employed in government-owned or - (4) By obtaining, receiving or accepting
controlled corporations, they shall be tried directly or indirectly any shares of
jointly with said public officers and stock, equity or any other form of
employees in the proper courts which shall interest or participation including the
exercise exclusive jurisdiction over them. promise of future employment in any
business enterprise or undertaking;